Belgium introduces the offence of ecocide

On 22 February 2024, Belgium’s Federal Parliament introduced the new offence of ecocide as part of the reform of the Belgian criminal code (through the Act introducing the (new) Book II of the Belgian Criminal Code).

Belgian background

Back in December 2021, the Belgian Federal Parliament adopted a Resolution calling on the Belgian Federal Government to consider the insertion of a crime of ecocide into Belgian law and to champion similar initiatives at the international level, including the inclusion of ecocide in the Rome Statute of the International Criminal Court (see our previous briefing).

The Resolution, inter alia, stated that Belgium could use the definition of the crime of ecocide developed in 2021 by the Independent Expert Panel for the Legal Definition of Ecocide (the “Ecocide Panel”). According to this definition, ecocide is described as “any unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and widespread or long-term damage to the environment being caused by those acts”. 

After earlier unsuccessful legislative initiatives, the Government tabled on 24 July 2023 a Bill introducing the (new) Book II of the Belgian Criminal Code, which included an article on ecocide. After being amended during the parliamentary debate, the introduction of the new offence was eventually adopted by the Belgian Federal Parliament on 22 February 2024.

International and European contexts

At the EU level, the crime of ecocide was absent from the European Commission’s proposal of 15 December 2021 for a new Directive on Environmental Crime, despite an accompanying communication stressing the need for close monitoring of international developments in this regard and a January 2021 Resolution of the European Parliament encouraging the recognition of ecocide at an international level.

This failure to include a crime of ecocide faced criticism from several stakeholders. On 16 November 2023, the EU institutions found a political agreement on the final text of the new Directive on Environmental Crime which inter alia attempted to address the perceived gap (see our previous briefing). This political agreement foresees the introduction of a so-called “qualified offence”, comparable to ecocide, when a criminal offence provided for under EU law is committed intentionally and causes destruction; irreversible, widespread and substantial damage; or long-lasting, widespread and substantial damage to an ecosystem of considerable size or environmental value, or to a natural habitat within a protected site, or to the quality of air, soil or water.

Several EU Member States have introduced or are exploring the introduction of ecocide as a criminal offence. France has already included such an offence in its domestic legislation, although its scope is different from that proposed by the new Directive on Environmental Crime (see our previous briefing). Similar bills have been introduced in the Netherlands and Spain. 

Outside the EU, ecocide has been introduced in countries such as Russia, Ukraine, and Vietnam. Legislative initiatives are ongoing in Brazil, Mexico, and Scotland, which have also submitted similar proposals. The push towards the recognition of ecocide has, so far, been less successful in the UK.

Definition of ecocide under Belgian law

Ecocide has been strictly defined under Belgian law (especially in comparison to the definition of the Ecocide Panel, set out above, initially envisaged as a model), and its conditions will only be met in exceptional cases.  According to the new Article 94 of Book II of the Criminal Code, ‘ecocide’ consists of: 

“deliberately committing, by act or omission, an unlawful action causing serious, widespread and long-term damage to the environment in the knowledge that this act causes such damage, provided that this act constitutes an infringement of federal legislation or an international instrument that is binding on the federal authority or if the act cannot be located in Belgium.”

This definition entails the following cumulative conditions:

1. an unlawful action or omission;
2. constituting an infringement of federal legislation (according to the preparatory works, mainly when the damage results from ionising radiation or radioactive waste, or was caused in or on the North Sea) or an international instrument that is binding on the federal authority or if the act cannot be located in Belgium (according to the preparatory works, notably when a major environmental catastrophe is caused by a Belgian national abroad);
3. causing serious, widespread and long-term damage to the environment;
4. committed with mens rea, meaning that the offender – who can be both natural or legal person – must have had the intention to knowingly engage in the conduct punishable by law (referred to as dol général / algemeen opzet), including in the knowledge that such action or omission would cause serious, widespread, and long-term damage to the environment (there is no need, however, to show that the offender wanted these consequences to take place). 

The specific definitions below apply:

• ‘unlawful act’ refers to an isolated act or several cumulative acts or omissions, in violation of both international or domestic law (including the general norm of prudence); 
• ‘serious damage’ reflects the intention to limit the offence of ecocide to actual harm to the environment (as confirmed by the preparatory works). ‘Serious harm’ is defined as a “highly detrimental adverse change, disruption or impairment of any component of the environment, including substantial impacts on human life or health, on biodiversity or on natural, cultural or economic resources for society”;
• ‘widespread damage’ means “damage which extends beyond a limited geographical area, which crosses regional or state boundaries or which is suffered by an entire ecosystem or an entire species or a significant number of human beings” (preparatory works confirm that the idea is not to have a universal jurisdiction);
• ‘long-term damage’ means “damage that is irreversible or that cannot be repaired by natural regeneration within a reasonable period of time”; 
• ‘environment’ refers to “the earth, its ecosystems, biosphere, cryosphere, lithosphere, hydrosphere, atmosphere, and outer space”. 

It remains to be seen how the inclusion of “outer space” in the definition of the “environment”, may target phenomena such as the production of space debris or the extraction of lunar resources. 

Penalties

The new Belgian Criminal Code enshrines an eight-level scale of principal penalties, with the eighth level corresponding to the most severe offences. Ecocide will be punishable by a level 6 sentence, as follows:

Courts may, however, go above or below these thresholds by recognising the existence of aggravating elements or mitigating circumstances.

As it is a level-6 offence, courts will also be able to order accessory penalties next to the principal penalties, such as fines, seizures, monetary penalties based on the profit expected or obtained from the offence, closing of the establishment, professional ban and/or prohibition on the exercise of an operation falling within the scope of the corporate purpose, etc.

Next steps

Now that the Act introducing (new) Book II of the Belgian Criminal Code has been formally adopted, it will enter into force two years after its publication in the Belgian Gazette (i.e., probably in Q1 or Q2 2026).

Non-retroactivity is a fundamental principle of Belgian criminal law, and conduct occurring before this date will thus not be caught.

It remains to be seen how Belgium will transpose the EU Directive on Environmental Crime, in particular with respect to “qualified offences comparable to ecocide”.

If you would like to discuss any aspect of the new regime, please reach out to the contacts on this post, or to your usual Linklaters contact(s).