Capital Accumulation, Racialisation and the Politics of Ecocide

The criminalisation of ecocide in global capitalism

Calls for the adoption of a crime of ecocide in international (criminal) law are increasingly present in public as well as academic debates. But what is ecocide and why is it so popular in today’s debates? Starting off with these questions, Knox stresses two important aspects to keep in mind before delving into his critique. First, the social and material phenomenon of ecocide and the proposed crime of ecocide need to be analytically distinguished. While the former is a purely descriptive term to depict the destruction of the ecology, the latter is a normative legal concept embedded in a system of other legal concepts. However, the fact that we describe social phenomena as ecocidal is clearly informed by legal terminology, which is a testament to how influential legal thinking is when we try to make sense of the world.

Second, the popularity of the idea to enshrine the crime of ecocide in law is closely linked to classic liberal ideas on (international) law and its functions within (global) society. Liberal thinking promotes law as an apolitical concept that structures and constrains messy political contestation and deadlocks with clear-cut legal categories. According to Knox, it is this particular notion of ordering and simplifying complex social and political phenomena as well as a strong belief in the symbolic, communicative function of legal provisions that makes the idea of criminalising ecocide so appealing. Knox however sets out to put these assumptions into question.

Structural links between capitalism, ecocide, practices of racialisation and the law

As a basis for his analysis, Knox first fleshes out how capitalism, (international) law, practices of racialisation and the social phenomenon of ecocide are structurally interconnected. Drawing on previous critical analyses of international law – including his own work, he shows how capitalism produces ecocidal social relations and practices in a first step and then goes on to analyse the role of racialisation and of law in fostering and upholding these relations.

Knox returns to Marx’s own writing to elaborate on how capitalism as a form of social ordering generates environmental destruction. Marx’s theorizing on the so-called “metabolic rift” already pointed to how capitalism’s built-in logics lead to the over-exploitation of the soil to the point of irreversible damage. In the same way, the striving for capital accumulation or more specifically the perpetual striving for profit in competitive markets gives rise to ecocidal practices. This profit-orientation leads to social transformations and practices that instrumentalise and appropriate nature for profit. The need for raw materials and the exploitation of nature is hence integral to capitalist social relations. Moreover, Knox concludes that as competition for profit is inherent to and without any limits in capitalism, the drive to commodify nature is impossible to limit, too. This does not only cause ecocidal practices that overstep nature’s boundaries, but also defies any attempts of “greening capitalism”.

By tracing how capitalism’s need for raw materials historically led to its expansion from within Europe to all over the globe, Knox goes on to show how the search for and appropriation of new raw materials was (ideologically) sustained by processes of racialisation. Practices of racialisation were used to access and to transform new populations into configurations of capitalist social relations. As an ideological legitimisation of these transformations, racism functionally supports capitalism's social ordering and adapts to capitalism's changing needs over time. While narratives of racialisation were primarily based on biological language during colonialism and imperialism, later on, once capitalism had spread all over the globe, they started to have more of a cultural undertone. These capitalist transformations over the globe did not only result in geographically uneven accumulations of capital, but also show how practices of racialisation undergird global capitalism.

What is law’s role in this? In line with (his) existing critical research on (international) law, Knox argues that these social transformations and processes of commodification in capitalism are mediated and structured through law. First, with the help of legal provisions nature was categorised into different forms of commodity and thereby opened up for appropriation and exploitation. Second, legal norms also provided justifications for dispossessions including legally enshrined narratives of racialisation. Hence, and in contrast to its apparent apolitical reading in liberalism, Knox argues that law is functionally linked to the logics of capitalism. With the expansion of capitalism over time, this brought into existence a set of (international) legal rules that bolster and stabilise capitalism – including its inherent ecocidal logics and practices.

As the last structural connection, Knox fleshes out how ecological concerns, i.e., the social phenomenon of ecocide, have been framed through adapted narratives of racialisation. This primarily happened through a re-activation and re-articulation of the narrative of “civilisation”. Originally used to access and to transform populations during the colonial and imperial epoque, it was re-coined in ecological terms as the reproach of inadequate stewardship of nature. Instead of taking into consideration the historically different positioning in the global economy and the resulting structural differences in capital accumulation and state capacity, this narrative shifts the blame of environmental problems to racialised populations that are construed as inferior and as unable to take proper care of nature, while painting Europeans as “environmental saviours”. Moreover, this adapted narrative of “civilisation” does not only deflect from capitalism’s ecocidal nature, but also continues to foster transformations towards capitalist (ecocidal) social relations. Quite often invoked by lawyers, these narratives were yet again mediated through law and resulted in legal regimes that mirrored, sustained and justified these practices.

The criminalisation of ecocide as a political project

Against this analytical backdrop, Knox examines the demands to introduce the crime of ecocide to international law. Starting with a historical overview of how these demands have evolved and changed over time, Knox goes on to critically analyse current proposals for the criminalisation of ecocide.

The language of ecocide originally emerged as a term embedded in insurgent, anti-imperialist thinking. Embedded in the political struggles against the Vietnam War and intellectually informed by Third World Approaches in International Law, it was used to denounce the US for its deliberate use of weapons, such as Agent Orange, that caused large-scale environmental destruction. However, at the end of the 1970s with the incipient defeat of the New International Economic Order, Knox observes that most of the anti-imperialist subtext to the calls to ban ecocide also disappeared. Instead, the language started to become rather legalistic, linking it to already existing legal concepts in international law such as war crimes or concepts of international humanitarian law. These new, rather top-down discourses thus do not only lose their insurgent character, but grow increasingly similar to existing juridical regimes that, as has been shown, rationalise and support the oppressive and racialising logics of capitalism instead of contesting them.

According to Knox, contemporary discussions on ecocide can be viewed as the result of these changed discourses, as they re-articulate the built-in logics of existing legal regimes and are hence symptomatic of law in global capitalism. The currently most influential proposal coins ecocide as “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” (as presented by the Independent Expert Panel of the Stop Ecocide Foundation, 2021) and proposed the International Criminal Court (ICC) as the competent international court. Drawing on the critique of international law briefly outlined in the previous section, Knox fleshes out four specific criticisms against this proposal.

First, this definition casts ecocide as an aberration, i.e. as a specific mistake that is out of the ordinary. However, as Knox has argued in the first part, it is rather the normal operation of capitalism and its social relations that exploit nature beyond repair and are therefore fundamentally ecocidal. This includes inter alia fossil fuel-based CO2 emissions as one of the primary drivers of global warming. However, none of this is properly addressed by the currently discussed legal definition of ecocide. The proposed criminalisation of ecocide thus does not only fail to address the structural, ecocidal nature of capitalist social relations, but even recasts many of its destructive consequences on nature as rather accidental or exceptional problems.

Second, by likening ecocide to existing legal definitions in international criminal law (inter alia to the criminalisation of genocide) and by proposing the ICC as the competent court, this proposal reiterates practices of racialisation that are inherent to existing international law in multiple ways. First, by singling out specific, individual acts, these legal propositions abstract the respective acts from the broader social context that give rise to them. As a consequence, social relations in global capitalism that systematically position racialised people in a way that makes them more prone to commit the proposed crime of ecocide once again remain hidden und unaddressed. A critical reading of the required knowledge-element as a key element of the proposed definition makes this mechanism particularly apparent. Only those with knowledge on specific local features will be aware of the destructive effects to the environment, as required by the definition of ecocide. Most frequently, these will be middle managers and local operators instead of (top) managers of lead firms, who have been – in line with existing legal regimes, e.g., through the use of subsidiaries – systematically liberated from their responsibility. As a result of how capitalism has historically transformed social relations over the globe, quite often the former will be racialised people from the periphery. The seemingly neutral legal definition of ecocide hence operates in and at the same time covers up a social context that systematically puts historically and structurally disadvantaged, racialised people in the danger of committing the crime of ecocide, while making it highly unlikely for those who have historically profited from capitalist social relations. The second trope of racialisation can be drawn from existing empirical research on international criminal law in action and more specifically on the workings of the ICC. These analyses offer important insights on the selectivity of criminal prosecution in international contexts that empirically support the described bias against racialised people from the periphery. This does not only give empirical evidence to the previous criticism, but seems particularly relevant, as the ICC is presented as the competent court to try ecocide under the current proposition. And third, coupled with the suggested exceptional character and selectivity of the currently debated legal definition, the proposed introduction of the crime of ecocide also needs to be understood as a re-articulation of the story of “civilisation” and “saviourism” as described above. By focusing on individual ecocidal acts of racialised people from the periphery, international prosecutions under the proposed ecocide definition will once again cast people on the periphery as unable to take care of nature and as in need of international and more specifically European intervention to do so.

To sum up, according to Knox the proposed ecocide definition individualises ecocide and abstracts it from its social context and thereby fails to address the fundamentally ecocidal character of capitalist social relations. Instead, it upholds them and re-articulates practices of racialisation.

Alternatives to address the social phenomenon of ecocide

Based on this analysis of the current proposal to criminalise ecocide in international law, Knox is critical of any kind of political support for this project. He instead proposes to pursue other legal options as well as alternatives outside of the legal realm. In spite of his criticism of international law, Knox first explores legal projects he deems more promising. Instead of focusing on grand scheme projects like the criminalisation of ecocide that - as has been argued - offer little potential for effectively addressing ecocidal social relations, Knox proposes to focus on smaller, legal projects that directly challenge the configuration of capitalist social relations. These include inter alia changes in contract law, tort law or laws governing corporate entities, which all in their current design legally enshrine and sustain existing social relations of global capitalism. Knox however warns that law should not be seen as the epicentre of social change but rather as a venue for specific tactical concerns. These should therefore be subordinated to broader political campaigns that offer much more potential to change ecocidal capitalist social relations. As for political campaigns, which Knox considers to be the most promising option to address ecocide, he advises to ask practical, organisational questions. These should move beyond existing legal regimes to better challenge ecocidal capitalist social relations and target the specific places in which the system reproduces itself. It should then be asked which new, different forms of political organisations and solidarity can be built, so that we can imagine new and different configurations of social relations. Last, Knox points out that these political campaigns and ideas on new ways of organising need to be based on a thorough understanding of the described structural connections of the way capitalism transforms and structures social relations, the social phenomenon of ecocide, practices of racialisation and law’s mediating role.

Concluding reflections on Knox’s critique

Knox’s rigorous Marxist analysis of the social phenomenon of ecocide as well as his multi-faceted critique of the current proposal to introduce a crime of ecocide to international law offer an important contribution to legal research as well as to criminology.

Knox’s presentation shows how fruitful Marx’s writing and theorising, esp. on capitalism’s social ordering and the metabolic rift, is for the analysis of ecocidal practices in today's world. This resonates well with previous contributions on the social phenomenon of ecocide (see e.g., Crook & Short 2014; Lindgren 2018). By combining these insights with his previous work on international law in global capitalism and on practises of racialisation (see e.g., Knox 2023; Knox & Kumar 2023, for the most recent contributions), Knox adds an interesting and particularly relevant perspective to these discussions. Previous accounts either (cautiously) identified potential for actual social change in criminalizing ecocide (see e.g., Higgins, Short & Nigel 2013; Lindgren 2018, who also points to necessary, additional social transformations) or criticized the current definition for different reasons. Criticism on specific aspects included legal doctrinal considerations (see e.g., Ambos 2021; Minkova 2023) and frequently stressed the anthropocentric nature of the current ecocide definition that primarily views nature as instrumental for human needs (see e.g., Heller 2021a; Heller 2021b; White 2023). Knox’s critical analysis however offers new, important arguments. He does not only illustrate how selective the proposed legal definition of ecocide is and how ill-equipped it is to address the most pressing aspects of the social phenomenon of ecocide. Knox also points to the many ways, in which this new provision in international law is in fact likely to strengthen oppressive and ecocidal capitalist social relations. These arguments go hand in hand with the observed loss of the originally radical character of calls for the criminalization of ecocide and make for a thought-provoking contradiction to existing accounts in international law as well as public debates on the proposed criminalisation of ecocide. His rigorous analysis is thus timely and insightful. It is also based on far-reaching claims and conclusions that invite more encompassing (empirical) research beyond the scope of this presentation to further substantiate or maybe nuance his arguments.

Knox’s presentation also speaks to and resonates well with existing criminological research on criminal policies or more broadly the field of punishment and society. While this literature tends to focus on national policies, analyses of the political economy of punishment (see e.g., De Giorgi 2013; Wacquant 2009) examine the functionality of punishment in capitalist social relations, too. This is also true for contributions on progressive punitivism (Aviram 2020) or carceral feminism (see e.g., Bernstein 2007, 2012; Gruber 2020) as well as writing on abolitionism (see e.g., Gilmore, 2022), that show the strong temptation of introducing criminal law to induce social change in (neo-)liberal societies. While these contributions tend to focus on developments in the US context, they reveal and point to similar problems. This includes the selectiveness as well as the practices of racialisation that are inscribed in or mediated through national criminal law provisions, but also their inability to bring about actual change, as in substantial reconfigurations of social relations. Knox’s presentation therefore also invites further interdisciplinary dialogue between criminology and research in international law.

References

Ambos, K. (2021). Protecting the Environment through International Criminal Law? https://www.ejiltalk.org/protecting-the-environment-through-international-criminal-law/ (accessed January 2024).

Aviram, H. (2020). Progressive Punitivism: Notes on the Use of Punitive Social Control to Advance Social Justice Ends. Buffalo Law Review, 68(1), 199-245.

Bernstein, E. (2007). The Sexual Politics of the ‘New Abolitionism’. Differences, 18(3), 128-151.

Bernstein, E. (2012). Carceral politics as gender justice? The “traffic in women” and neoliberal circuits of crime, sex, and rights. Theory and Society, 41, 233-259.

Crook, M. & Short, D. (2014). Marx, Lemkin and the genocide-ecocide nexus. The International Journal of Human Rights, 18(3), 298-319.

De Giorgi, A. (2013). Punishment and Political Economy. In J. Simon & R. Sparks (Eds.), The SAGE Handbook of Punishment and Society, 40-59, London: SAGE Publications.

Gilmore, R. W. (2022). Abolition Geography. Essays Towards Liberation. London and New York: Verso.

Gruber, A. (2020). The Feminist War on Crime. The Unexpected Role of Women’s Liberation in Mass Incarceration. Oakland: University of California Press.

Heller, K. J. (2021a). Ecocide and Anthropocentric Cost-Benefit Analysis. http://opiniojuris.org/2021/06/26/ecocide-and-anthropocentric-cost-benefit-analysis/ (accessed January 2024).

Heller, K. J. (2021b). Skeptical Thoughts on the Proposed Crime of “Ecocide” (That Isn’t). https://opiniojuris.org/2021/06/23/skeptical-thoughts-on-the-proposed-crime-of-ecocide-that-isnt/ (accessed January 2024).

Higgins, P., Short, D. & South, N. (2013). Protecting the planet: A proposal for a law of ecocide. Crime, Law and Social Change, 5 (1), 251-266.

Knox, R. (2023). International Law, Race, and Capitalism: A Marxist Perspective. American Journal of International Law, 117, 55-60.

Knox, R. & Kumar, A. (2023). Reexamining Race and Capitalism in the Marxist Tradition – Editorial Introduction. Historical Materialism, 31(2), 25-48.

Lindgren, T. (2018). Ecocide, genocide and the disregard of alternative life-systems. The International Journal of Human Rights, 22(4), 525-549.

Minkova, L. G. (2023). The Fifth International Crime: Reflections on the Definition of “Ecocide”. Journal of Genocide Research, 25(1), 62-83.

Stop Ecocide Foundation (2021). Independent Expert Panel for the Legal Definition of Ecocide. Commentary and Core Text. https://static1.squarespace.com/static/5ca2608ab914493c64ef1f6d/t/60d7479cf8e7e5461534dd07/1624721314430/SE+Foundation+Commentary+and+core+text+revised+%281%29.pdf (accessed January 2024).

Wacquant, L. J. D. (2009). Punishing the poor: the neoliberal government of social insecurity.  Durham: Duke University Press.