Codifying Catastrophe or Contesting the Contestation? Ecocide and the Revision of EU Environmental Criminal Law

Over the past decade, the reemerging debate about the criminalization of environmental offences has brought about increasing scholarly and public debate which has crystallized above all around the contentious demand to introduce ecocide as an international crime. This concept of sanctioning widespread and long-term environmental harm has first emerged mainly from indigenous groups from the Global South – but it has also found prominent support by a growing coalition of legal experts, non-governmental organizations and governmental actors from both the Global South and North. However, influential players have so far successfully managed to prevent ecocide from being codified in international law. In response to this, some states have started to implement the norm on the national level, thereby gradually questioning the hitherto wide-ranging criminal non-liability for environmental offences. On the EU level, the Commission published its proposal for a revised "Directive on the protection of the environment through criminal law" in December 2021. The unfolding legislative process has produced opinions, declarations, reports and drafts issued by EU institutions, member states and civil society alike. In late 2023, the EU institutions in their informal trilogue negotiations agreed upon the draft of a revised Directive which is likely to enter into force in 2024. This extensive ‘paper trail’ offers a fascinating glimpse into the intra-EU debate about criminalizing environmental offences. We argue that the political and legal dispute revolving around grave environmental harm can be conceptualized and analyzed as processes of norm contestation – which we understand as the discursive disapproval of (international) norms, either regarding their validity per se (justificatory contestation), or regarding their general (applicatory contestation) or situational application (situative contestation). With an in-depth qualitative document analysis scrutinizing the ongoing EU legislative process around the proposed directive, we seek to structure the European debate by tracing and analyzing the relevant discursive expressions as acts of contestation. We array our analysis along three dimensions: the proposed level and intensity of the criminalization of environmental offences, as well as the proposed definition of ecocide. In doing so, we situate the ongoing EU process and the likely new 2024 directive in the wider context of the international debate about the criminal liability for environmental offences and ecocide: Where is the EU positioned between ‘contesting the contestation’ – that is: contesting the movement to criminalize environmental harm – and participating in norm change by codifying ecocide? The discussion thus reflects broader themes of contestation and redefinition of norms in environmental criminal law, highlighting the dynamic nature of legal and political processes in addressing environmental challenges. As the course and outcome of the legislative process will significantly influence the EU's stance on environmental justice on the international stage, this paper is a contribution to EU studies while at the same time illuminating the international politics of judicializing environmental justice.