Shobha Bhagwati Temple is a site of spiritual, cultural and monumental importance on the banks of the Bishnumati River in Kathmandu. Near this temple there are memorial statues of Dasharath Chand and Gangalal Shrestha. These two public intellectuals were executed at that place for their struggle for people's rights against the Rana regime. Full-size statues of martyrs commemorate the sacrifice.

But human excrement is flowing beneath the memorial statues. There is a smell around Shobha Bhagwati temple. There has been serious environmental destruction in the temple area. Biodiversity loss and water quality deterioration in Bishnumati River. Aquatic birds are almost extinct. But not only politicians and economic planners but also spiritual and cultural people seem to be unconcerned in this regard. Therefore, the legal discussion of 'environmental murder' is a relevant topic of the present time.

Shobha Bhagwati temple area, Bagmati and Bishnumati are representative examples of the environment. International legal initiatives to criminalize activities of environmental destruction may be relevant for Nepal. The Sanskrit word 'vasundharavinash' may help to understand the meaning of ecocide. The word 'ecocide' is a combination of the Greek word 'oikos' (home or environment) and the Latin suffix 'side' (to kill).

It literally means the killing of home-earth. "Reckless or intentional widespread environmental destruction, which causes serious damage to nature and its inhabitants and which cannot be returned to normal by any form of compensation, is called "ecological murder" in the language of international environmental law. 'Vasundharavinash' is interrelated with 'climate justice'.

'Environmental murder' and 'climate justice'

Even though the government of Nepal has not initiated itself in the international court, it is participating with the countries that claim 'climate justice'. Meanwhile, there is a worldwide movement to make 'environmental murder' a punishable crime like genocide. Despite this, the government of Nepal is silent about the 'environmental murder' taking place in its country.

In Nepal, Chure (Shiwalik) hills are undergoing extensive deforestation for timber and agricultural purposes. Water sources are drying up. There is uncontrolled mining of sand and stone in the rivers. Every year floods erode river banks and destroy aquatic habitats. Encroachment and pollution in lakes is increasing. Biodiversity is being lost and the balance is being disrupted in national parks. Local pollution and black carbon from uncontrolled brick kilns and diesel engines are accelerating the melting of glaciers. The amount of water in the glaciers is decreasing. The danger of glaciers breaking up is increasing.

The prosperity that the world's industrialized countries have gained from greenhouse gas emissions into the atmosphere over the past three hundred years has been unjust. But in international climate change agreements, industrialized countries refuse to legally accept historical responsibility (in the Climate Convention, Kyoto Protocol and Paris Agreement). Developing countries failed in the deal led by China and India.

As a result, developing countries are dependent on the will of industrialized countries rather than standing up to demand climate justice in their own right. Industrialized countries have agreed to pay compensation under some so-called climate funds. How the corrupt governments of the world can implement such compensation is a big question in itself. If the government of Nepal gets financial help from any such fund related to climate, will the environment of Bagmati and Bishnumati rivers be restored?

The killing of Bagmati and Bishnumati

The legal personality of nature is accepted in environmental jurisprudence. That is, the legal existence and legal rights of rivers, mountains, forests are established. This type of legal person cannot defend themselves. The state should protect such people. However, severe environmental damage has occurred in the Bagmati and Bishnumati rivers of Kathmandu.

The Bagmati and Bishnumati rivers, once used by people to swim, are now biologically dead, habitats for fish and birds. In these rivers, pollution from urban waste, sewage, treated domestic sewage and large quantities of industrial waste are mixed directly into the rivers. Rivers have become 'dumping grounds' for plastic, construction debris and domestic waste.

Bagmati and Bishnumati floods cause loss of life and property during the rainy season, while during the dry season both rivers reek of human excrement, dead animals. Informal settlements and infrastructure have encroached on natural river corridors, narrowing the flow and damaging ecosystems. Rapid and uncontrolled urban development has polluted the natural drainage system.

The local government of Kathmandu has made some efforts to restore the environment of the river. Projects have failed due to a combination of citizen negligence, poor urban planning and weak governance. Bagmati revitalization projects have failed due to poor coordination, corruption and lack of public involvement.

Genocide and environmental murder

Genocide is the crime of all crimes The United Nations General Assembly first came to global agreement in 1946. The widespread destruction of natural environmental systems by human activities, such as genocide, and the resulting serious damage to the health and safety of biodiversity, is called 'eco-homicide'.

The Convention on the Prevention and Punishment of the Crime of Genocide (the 'Genocide' Convention) was adopted in 1948 (entered into force in 1951). The Convention defines genocide as acts committed with the intent to destroy, in whole or in part, a national, ethnic or religious group.

To prove the crime of genocide, criminal 'intent' and criminal 'act' must be proven, although more attention is paid to intent. Even if we fail to stop the genocide, we should not stop fighting against the genocide legally.

On the other hand, 'actions' carried out without knowing that they will cause serious, widespread or long-term environmental damage can themselves lead to 'eco-cide'. For example, disposal of municipal waste, industrial chemically treated waste, including human excreta from toilets in Bagmati and Bishnumati.

In addition, large-scale deforestation, water and soil pollution, air pollution from large industries are included. Other examples include chemical mining activities, 'raking' and the use of certain pesticides. Radiation from nuclear explosions also falls into this category.

At the Washington International Conference in 1970, the term "ecocide" was first used by Arthur W. Galston in response to the environmental damage caused by the use of "Agent Orange" by the US military in Vietnam. He proposed a new international agreement to ban environmental destruction. 'Agent Orange' is an herbicide and defoliant. It was mainly used to remove foliage and vegetation, making it easier for troops to detect their enemies.

Among the first proponents to suggest the concept of environmental damage as a crime was British lawyer Polly Higgins. In 2010, Higgins submitted a proposal to the United Nations Law Commission to make 'ecocide' the fifth crime against international peace (the other four crimes are genocide, crimes against humanity, war crimes and crimes of aggression, among which crimes against humanity, war crimes are related to the peace and reconciliation of Nepal).

The International Law Commission has not yet formally adopted a draft on environmental destruction. However, independent legal experts have done important work towards the goal of recognizing environmental destruction as an international crime. The most notable draft in June 2021 was an independent expert panel of the 'Stop Ecocide Foundation' proposing a legal definition of environmental destruction for possible inclusion as a fifth international crime under the Rome Statute. According to the

panel's proposed definition, 'environmental destruction' is an illegal or knowingly wanton act, which has a substantial potential to cause serious and widespread or long-term damage to the environment. The environmental destruction that has occurred in the case of the Bagmati and Bishnumati rivers is consistent with this definition.

This definition is designed to meet the criteria for inclusion as a crime in the Rome Statute of the International Criminal Court. Any natural or legal person or government should be aware of environmental risks. It is proposed that environmental killings be prosecuted at the International Criminal Court in The Hague. But so far no case has been filed in any national or international court.

Although the world's leading greenhouse gas polluters, the United States, Russia, China and India, are not members of the International Criminal Court and are outside its jurisdiction, no one can stop the development of jurisprudence.

Punishment for crime

If the environmental change cannot be reversed through corrective compensation, it is an irreversible damage (significant harm). It is an appreciable harm if it can be restored to the previous state through corrective compensation. Irreversible damage (ecological harm) is environmental destruction. This cannot be permitted by law to continue. The extent of environmental damage should be determined by scientific environmental impact assessment.

If environmental damage is formally recognized as an international crime, the penalties are similar to those for other international crimes. For example, high-level executives, heads of state or military leaders found responsible for environmental damage may face imprisonment similar to punishment for crimes against humanity.

Illegally earned property may be confiscated or a fine commensurate with environmental damage. Companies can be banned from operating in certain jurisdictions or have their licenses revoked. Damaged communities must be compensated. France introduced, in 2021, the criminal offense of 'ecocide', which carries a fine of up to 45 million euros and/or 10 years in prison if it intentionally causes serious and lasting environmental damage. 

What should Nepal do? 

The recommendations of independent legal experts mentioned above do not automatically become hard law. It is a 'soft international convention'. To make it a 'hard law' either states must accept it through a separate treaty or adopt it under national law.

Many civil society groups, including the countries of Vanuatu, the Maldives and the Democratic Republic of Congo, have supported the criminalization of environmental destruction in international law. France has introduced environmental crimes into its environmental code. Belgium and the Netherlands are doing the same.

European Union parliamentary committees have backed treating environmental destruction as a new crime. Bills are in the legislative phase in Brazil, Mexico, Peru, Italy, Argentina, the Netherlands, Germany, Turkey, the Dominican Republic, Sardinia and Scotland.

A global public opinion is being created that environmental destruction is considered one of the world's most morally reprehensible crimes. Enshrining environmental degradation in national laws and promoting it in public education would be a step in the right direction. If countries like Nepal want climate justice from industrialized countries, they should accept the draft on environmental destruction as soon as possible.

The discretion of court judges is the final decision, so there may be new interpretations in the future. If Nepal's executive and legislative powers fail to take immediate action, the courts should be proactive in criminalizing environmental destruction. The court should not hesitate for fear of criticism. Criticism against court activism is temporary. Right decisions at