Nora Belkhiter
And suddenly, it was not just the Palestinians. It was the soil they walked on, the air they breathed, the water they drank, the home they lived in, the orchards and olive trees they so earnestly cultivated. But if we look closely, maybe it was not so sudden, not so accidental. It was there all along. The struggle of the people and the land who are so inextricably linked has been long documented, but it has fallen on the deaf ears and blind eyes of the law. However, in light of the Pacific Islands’ proposal for the recognition of ecocide as the fifth crime under the Rome Statute, there is a unique opportunity for change. Environmental justice, beyond its conventional understanding and combining all its facets, is directly concerned with this call for accountability. Environmental injustice in Gaza means a lot of things, but in its totality and most encompassing way it means ecocide. It reverberates and depicts why Gaza does not just fulfil the elements of ecocide but is the reason why it should exist.
What is the Definition of Ecocide?
The definition included in the proposal was drafted by an Independent Expert Panel. As such ecocide means:
“unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.’
Environmental Justice in Gaza
Environmental justice as a movement was born out of resistance to the environmental racism in Warren County, USA, that saw the dumping of toxic waste in a community with a majority black population. It is concerned with the disproportionate environmental burdens and systematic inequalities that marginalised, minority and vulnerable populations and Indigenous Peoples are burdened with. The movement, now global, is multifaceted, and exists in different forms and contexts. And so, Murdock encourages us to take an ‘expansive’ approach in considering what environmental justice encompasses. And this is precisely the point. At a time of such profound environmental destruction, ecocide is an environmental justice issue that extends beyond the conventional understanding of the movement.
It is crucial issue that engages with human suffering through environmental annihilation without obliging humans to prove specific harm to them or close proximity to their land, for it to be recognised as criminal. On a first reading as Quenivet rightly pointed, the definition appears eco-centric, focusing solely on environmental harm. This approach though, neither ignores nor excludes the human connection. Human life is encompassed throughout. It is considered in the environment’s ‘biosphere’, and in the severe and widespread requirements of the crime. The case of ecocide in the context of Gaza represents such severe destruction, making it impossible to describe the environmental devastation without reference to human torment. It does not exist in isolation. Each of its limbs connects to more conventional forms of injustice such as environmental colonialism, intergenerational injustice and injustices found in all contexts of the environment.
Ecocide is also an environmental justice issue when one looks beyond Western relationships of ownership with the environment and conceptualises environmental harm as harm to people’s identity. In his policy brief on environmental crimes under the Rome Statute the Prosecutor recognised the ‘central role’ of the environment in the life of Indigenous Peoples. Ecocide compliments this recognition as it engages with understandings of identity and land proximity in a way that current international law on environmental protection does not. Palestinians are deeply connected to their land, the olive trees, the figs, the fish, so the harm perpetrated on the environment in its own right, is harm perpetrated on the Palestinians. Separation from their land when it is damaged to the extent that it is no longer recognisable or through expulsion ‘is like death itself’. This connection is also reflected in their poetry and contributes to an understanding that humans are part of nature and nature is part of human identity.
Ecocide in Peace
The existing legal framework under the ICC only engages with environmental damage during war time. The ecocide proposal expands this protection to times of peace. The only requirement is that the acts are ‘unlawful’ or ‘wanton’. This covers acts which are in contravention with national or international law, or acts committed recklessly and whose consequences are ‘excessive’ to the benefits anticipated. The latter engages with questions of proportionality which may limit the scope of protection, as Quenivet submits, where conduct is justified in light some social or economic advantage.
Nevertheless, it opens up the scope for the recognition of the systematic and silent ecocide practices that existed in Gaza prior to October 7th. Research by Al Mezan documented that ‘35% of Gaza’s agricultural land’ between 2000-2023 had been destroyed by Israel for the purpose of establishing ‘no-go buffer zones’, an unlawful practice. Similarly, thorough investigation by Forensic Architecture has documented the repeated ‘bulldozing of agricultural and residential lands’ and the use of airborne herbicides, since 2014, near Gaza’s eastern border. These are unlawful practices of land seizure and as such proportionality cannot be employed to justify them. Their regularity represents a pattern of ‘systematic destruction of Palestinian agriculture’, leaving ‘no traces of prior life’ due to its devastating effects on soil quality and food production.
However, can ecocide encompass other practices in the context of Israel’s ‘settler-colonial project’? For example, Francesca Albanese’s report highlighted Israel has controlled and severely limited the daily water consumption of Palestinians. Israeli citizens have enjoyed an average water consumption that was ‘three and a half times higher’ than Palestinians under circumstances of peace. Then, in the process of land dispossession, native plants, olive trees in particular, have been systematically uprooted and replaced with European Pine Trees. But, perhaps ecocide may fall short in its recognition here. Or it may be an opportunity to appreciate that erasing the environment’s identity, by fundamentally altering its character, is ecocide.
Image by hosny salah from Pixabay
Substantial Likelihood Of Severe Environmental Damage
The requirement of substantial likelihood of severe damage involves ‘very serious adverse changes, disruption or harm’ to the environment including to ‘human life’. Israel’s military operations in Gaza are not just likely to cause severe damage, they have, in fact, severely impacted all elements of Gaza’s environment and the human life of Palestinians. Yet this risk based approach accounts for severe harm, not yet occurred or documented, reflecting a much needed a preventative form of environmental justice. For if it was results based, it would be too late.
The 2.1million Palestinians who have escaped death from direct military advances find themselves displaced within Gaza and living in sub-standard conditions. With waste management facilities purposefully damaged and rendered inoperative, Palestinians have had to resort to the use temporary waste grounds. These are inappropriate for waste disposal and are located too close to where Palestinians shelter. They compile solid and liquid sewage waste, and unprocessed medical waste, creating ‘an environmental catastrophe’. Though exact figures are not available, such waste management systems severely contaminate water and soil, and have been a grave source of diseases like hepatitis A and respiratory infections.
Additionally, just in the first 60 days since October 7th 2023 a group of experts calculated that the CO2 emissions surpassed the ‘annual emissions of 20 individual countries’ causing severe air quality and climate disruption. With over 85,000 tons of explosives dropped in Gaza’s densely populated environment, as of August 2024, the number has only increased. A preliminary assessment of these impacts revealed the high risk of soil contamination with ‘heavy metals and other chemicals’ from the bombs and debris. This contamination is toxic for plants and animal life with immediate and severe effect in their mortality, growth and health. Thus beyond the unparalleled damage to landscape and infrastructure, Gaza’s flora and fauna has been severely disrupted.
Finally, water desalination plants have either been destroyed or cut off from Gaza’s population. The degradation of water infrastructure has also had a severe impact on the soil as waste water is not sanitised. Furthermore, Israel has flooded underground tunnels with seawater. This has created a serious risk of ‘ecological catastrophe’ as seawater seeping into the soil prevents crop growth and risks making it ‘uninhabitable’. It also risks contaminating the little drinkable water that is left. This demonstrates how closely intertwined environmental devastation and human suffering is in Gaza. And so Gaza is the reason ecocide should be recognised, so that no other ecosystem suffers such severe damage or at least without any legal accountability.
Substantial Likelihood of Either Widespread or Long-Term Environmental Damage
Unlike the Protocol Additional to the Geneva Conventions and Rome Statute which only prohibit conduct that causes both a widespread and long-term environmental damage, the ecocide definition recognises that each alone is enough to constitute ecocide. The panel employed this definition because the current conjunctive test imposes an ‘unnecessarily high’ and exclusive threshold. Yet emerging reports and investigations document both a widespread and long-term environmental devastation in Gaza, though the latter is more difficult to quantify.
Widespread
Damage is widespread if it ‘extends beyond a limited geographical area… or is suffered by an entire ecosystem or species or a large number of human beings’. UNEP’s most recent preliminary debris quantification, analysing UNOSAT images until December 2024, revealed over 50 million tonnes of debris plague Gaza. This covers the entirety of Gaza’s geographical area, amounting to over 365kg for every 1sqm. It also accounts for a destruction of 70% of total structures in Gaza. Some of the debris is contaminated with asbestos and unexploded ordnance which poses severe environmental and human health risks, whilst the air is polluted with ‘toxic ash and dust’. There is no region in Gaza that is free from such pollution, with air pollution potentially spreading to Israel and neighbouring countries like Egypt.
The UN Special Rapporteur’s most recent report on the Palestinian territories reveals the widespread suffered by Gaza’s ecosystem, with 93% of Gazan agricultural forestry and fishing economies having been destroyed. South Africa’s application to the ICJ against Israel for genocide, also documented that ‘livestock that has not been killed is facing starvation’. Combined, the destruction of crops, fisheries, forests, water filtering stations and complete blockade of humanitarian aid have also placed the entire population of Gaza at ‘high levels of acute food insecurity’, in other words starvation. This territorially and materially widespread attack against all living organisms reveals not just a fundamental disregard of Gaza’s biosphere but an objective to erase life and the environment that sustains it.
Long-term
The panel defined long-term as ‘damage which is irreversible or which cannot be redressed through natural recovery within a reasonable period of time.’ Most of the aforementioned destruction is long-term destruction. After 18 months of constant bombardment the damage caused cannot be naturally recovered. Clearing the land off the rubble, much of which is contaminated with asbestos, will take up to 21 years with significant effort. The use of white phosphorus, verified by Human Rights Watch, has detrimental risks to humans but also seeps into the deep soil where it remains for years causing long-term contamination. The redevelopment of agricultural land in these conditions is unlikely for generations to come. And so, this is not just a question of environmental harm suffered temporarily but devastation that will persist long after the last bomb has been dropped. It engages with intergenerational injustice as generations yet to be born will bear the consequences. Therefore, justice through recognising ecocide as a crime and accounting for Gaza’s long-term ecological collapse means justice for future generations.
Knowledge of Ecocide
Finally, the mental element of ecocide only requires the perpetrator to have ‘knowledge’ that their acts are substantially likely to cause an ecocide. As such, there is no requirement for a specific intent and, according to the Panel that drafted the definition, the element is satisfied where it is ‘evident’ that irreversible and long term damage is likely. This excludes ‘incidental or collateral damage’ but this is not necessarily damming to the realisation of accountability. It reflects the severity of the crime. Where severe and widespread or long-term damage has actually occurred perpetrators will find it hard to convince they lacked the knowledge of substantial risk.
Gaza is under Israeli occupation. Israel has completely placed Gaza under siege and controls all entry points. It has the ability to cut off electricity, water and food as it did. As such the targeting of WASH (Water Sanitation and Hygiene) infrastructure is done with the knowledge of the extent Palestinians depend on it. Carpet bombing densely populated areas can only be done with appreciation of the severity of harm and devastation this will cause. The use of chemicals in peace and war, especially where directly aimed at agriculture can only mean recognition of the danger.
But one need not speculate for long. Since October 7th 2023 these silent intentions to cause permanent environmental damage have become promises. Israeli Defence Minister Yoav Gallant, charged with committing crimes against humanity, promised that ‘Gaza will never return to what it was’. There is a clear, stated, purpose as Albanese reported to make Gaza ‘permanently impossible to live in’, to make it a place where ‘no human being can exist’. And so there is a purpose that with every military advancement and attack Israel gets one step closer to complete environmental devastation. From the ‘millions of tons of debris’ that plague Gaza, to the ‘toxic ash and dust’, the asbestos that threatens Gaza’s living organisms, Khan and Bakhsh also document the intentional environmental destruction. Such sinister intentions do not just fulfil the knowledge requirement but are the reason ecocide should be introduced.
Image by hosny salah from Pixabay, edited by author, poem written by author.
Demand for Accountability
The current international legal framework is weak and has not been sufficiently utilised. The Rome Statute of the International Criminal Court (ICC), only considers environmental damage in the context of war crimes and criminalises it only if it is ‘clearly excessive’ to the projected military ‘advantage’. This largely ignores environmental damage perpetrated during peace and allows the justification of severe environmental based on a calculation of military advantage. In other words, as long as environmental desecration occurs in peace or occurs in pursuance some undefined military benefit, international criminal law under the Rome Statute neither sees nor listens.
Environmental justice demands meaningful accountability of perpetrators. Gaza’s environment and people demand accountability for the well document annihilation perpetrated by Israel. Ecocide provides a framework, though imperfect, for legal accountability that encompasses the deeper relations between humans and the environment. It recognises environmental harm as criminal not because it affects humans but because it devastates the environment in its own right. At the same time, it recognises the often inextricable suffering of humans and allows space for its recognition in the definitions it employs. So, the fight for ecocide is a fight for accountability. It is a fight environmental justice is all too familiar with. And Gaza shocks the conscience, demanding the law’s evolution, demanding the law to see.
Source List:
International Criminal Court, ‘Report of the Working Group on Amendments’ (1 December 2024) Pacific Islands’ Ecocide Proposal https://asp.icc-cpi.int/sites/default/files/asp_docs/ICC-ASP-23-26-ENG.pdf
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Stop Ecocide Foundation, ‘Independent Expert Panel for the Legal Definition of Ecocide’ (June 2021) Ecocide Commentary and Core Text https://static1.squarespace.com/static/5ca2608ab914493c64ef1f6d/t/60d1e6e604fae2201d03407f/1624368879048/SE+Foundation+Commentary+and+core+text+rev+6.pdf
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