Making Ecocide Punishable Under International Law

Image result for tar sands ecocide
Alberta’s tar sands toxic tailings ponds
Dear EarthTalk: I’ve heard of suicide, homicide and genocide, but what is ecocide?

—Leslie P., Carrboro, NC

While the concept of “ecocide” may be new to many of us, the practice of willfully destroying large areas of the natural environment has been around about as long as humans — although we got a lot better at it using the machinery we developed during the industrial revolution. Bioethicist Arthur Galston first started batting the term around in the 1970s to describe intentional widespread ecological destruction, especially as it pertained to ruining inhabited environments so people couldn’t live there anymore.

Scottish barrister and activist Polly Higgins led the charge to get “ecocide” recognized as a “crime against peace” by the International Criminal Court. Credit: Elevate Festival, FlickrCC.

One classic example of ecocide in modern history is American troops’ widespread application of the toxic herbicide Agent Orange across Southeast Asia during the Vietnam War in the late 1960s. It was used to clear some 12,000 square miles of tropical rainforest to enable flushing out the “enemy,” despite the toll on civilians and the environment.

There are also plenty of present-day examples, including: mountaintop removal coal mining in Appalachia whereby miners blast through hundreds of feet of earth to access thin seams of coal; the “fracking” for oil and gas across wide swaths of Canada’s Alberta tar sands that has so far destroyed thousands of square miles of boreal forest and peat bogs while releasing hundreds of tons of greenhouse gases into the atmosphere; the dumping of crude oil and toxic waste into Ecuador’s Amazon by oil companies too focused on profits to do the right thing about waste removal; and deep sea mining whereby the use of heavy machinery to ply veins of precious metals from the seabed is ruining marine ecosystems we still know little about.

In recent years Scottish activist Polly Higgins championed the cause of getting the International Criminal Court (ICC), an independent judicial body created by the United Nations in 1998, to recognize ecocide as a “crime against peace” in the eyes of international law. Her work focused on getting the ICC to add ecocide as the fifth prosecutable “core international crime” (along with genocide, crimes against humanity, war crimes and crimes of aggression). Sadly, Higgins succumbed to cancer at age 50 in April 2019, but her efforts to institutionalize ecocide as a major international crime lives on with other activists.

“Destroying the planet is currently permitted,” says Jojo Mehta of the non-profit Stop Ecocide. “That is how ecosystems are being destroyed every day by dangerous industrial activity, exacerbating the climate emergency and destroying our forests, our soils, our rivers and the lands that we love.”

Mehta points out that any of the 122 member states of the ICC can formally suggest adding ecocide as a major international crime. Stop Ecocide is working with small Pacific island nations which are already “feeling the sharp end of climate change” to urge ICC to finally adopt ecocide as another crime it prosecutes.

“Serious harm to the Earth is preventable,” urges Mehta. “When government ministers can no longer issue permits for it, when insurers can no longer underwrite it, when investors can no longer back it, when CEOs can be held criminally responsible for it, the harm will stop.” SOURCE

Imagine Jair Bolsonaro Standing Trial for Ecocide at The Hague

A group of activists already has.

A scene from the Amazonas, a state in Brazil, on Sept. 15.
CreditCreditBruno Kelly/Reuters

Since August, as vast stretches of the Amazon rainforest were being reduced to ashes and outrage and calls for action intensified, a group of lawyers and activists who have been advancing a radical idea have seen a silver lining in the unfolding tragedy: One day, a few years from now, they imagined Brazil’s president, Jair Bolsonaro, being hauled to The Hague to stand trial for ecocide, a term broadly understood to mean the willful and widespread destruction of the environment, and one that, they hope, will eventually be on par with other crimes against humanity.

There is no international crime today that can be used to neatly hold world leaders or corporate chief executives criminally responsible in peacetime for ecological catastrophes that result in the type of mass displacements and population wipeouts more commonly associated with war crimes. But environmentalists say the world should treat ecocide as a crime against humanity — like genocide — now that the imminent and long-term threats posed by a warming planet are coming into sharper focus.

In Mr. Bolsonaro they have come to see something of an ideal villain tailor-made for a legal test case.

“He has become a poster boy for the need for a crime of ecocide,” said Jojo Mehta, the co-founder of Stop Ecocide, a group that is seeking to give the International Criminal Court in The Hague the jurisdiction to prosecute leaders and businesses that knowingly cause widespread environmental damage. “It’s awful, but at the same time it’s timely.”

President Jair Bolsonaro of Brazil at an Independence Day parade in Brasilia on Sept. 7.
CreditAdriano Machado/Reuters 

The first prominent call to outlaw ecocide was made in 1972 by Prime Minister Olof Palme of Sweden, who hosted the United Nations’ first major summit on the environment.

In his keynote address at the conference, Mr. Palme argued that the world urgently needed a unified approach to safeguard the environment. “The air we breathe is not the property of any one nation, we share it,” he said. “The big oceans are not divided by national frontiers; they are our common property.” That idea got little traction at the time and Mr. Palme died in 1986 having made little headway in the quest to establish binding principles to protect the environment.

During the 1980s and 1990s, diplomats considered including ecocide as a grave crime as they debated the authorities of the International Criminal Court, which was primarily established to prosecute war crimes. But when the court’s founding document, known as the Rome Statute, went into force in 2002, language that would have criminalized large-scale environmental destruction had been stripped out at the insistence of major oil producing nations.

In 2016, the court’s top prosecutor signaled an interest in prioritizing cases within its jurisdiction that featured the “destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land.”

That move came as activists seeking to criminalize ecocide had been laying the groundwork for a landmark change to the court’s remit. Their plan is to get a state that is party to the Rome Statute — or a coalition of them — to propose an amendment to its charter establishing ecocide as a crime against peace. At least two-thirds of the countries that are signatories to the Rome Statute would have to back the initiative to outlaw ecocide for the court to get an expanded mandate, and even then it would only apply to countries that accept the amendment. Still, it could change the way the world thinks about environmental destruction.
Richard Rogers, a lawyer who specializes in international criminal law and human rights, said that if ecocide campaigners and countries suffering the effects of climate change put forward a narrow definition of the crime, it could quickly garner widespread support. “We’ve seen in the past few years a huge shift in public opinion, and we’re entering a phase where there is going to be huge pressure on governments to do more,” said Mr. Rogers, a partner at Global Diligence, a firm that advises companies and governments on risk mitigation. MORE

Ecocide Should Be Recognized As a Crime Against Humanity, But We Can’t Wait for The Hague to Judge

Image result for Darren Woods climate villan
People gather and march during the Global Climate Strike march in Washington, DC on September 20, 2019. – Crowds of children skipped school to join a global strike against climate change

THE IMAGE OF Darren Woods, CEO of Exxon Mobil, loomed over the climate strike in New York last Friday afternoon. Rendered in cardboard, 15 feet tall and clutching a bag of fake, bloodied money, the puppet of Woods wore the label “Climate Villain.” It bobbed among the 250,000-strong crowd, joined by cutout versions of BP CEO Bob Dudley and Shell CEO Ben Van Beurden. By the time the puppets were set down in Battery Park, the terminus of the New York protest, the faces of the fossil fuel executives had been daubed with marker-pen devil horns.

As millions of workers and students filled city streets around the world last week, there was no shortage of bold and inventive protest signs. While many expressed broad concerns about the burning planet and an imperiled future, a number, like the CEO puppets, were unambiguous in their antagonism towards the fossil fuel industry and its political enablers. With the stakes of global heating intolerable, and the fanglessness of international climate agreements undeniable, it is little wonder that activists are calling for the major perpetrators of environmental decimation to be seen as guilty parties in mass atrocity, on a par with war crimes and genocide. The demand that ecocide — the decimation of ecosystems, humanity and non-human life — be prosecutable by The International Criminal Court has found renewed force in a climate movement increasingly unafraid to name its enemies.

The push to establish ecocide as an international crime aims to create criminal liability for chief executives and government ministers, while creating a legal duty of care for life on earth. Its strength, however, lies not in the practical or likely ability of The Hague — a profoundly flawed judicial body — to deliver climate justice. The demand that ecocide be recognized as a crime against humanity and non-human life is most powerful as a heuristic: a framework for insisting that environmental destruction has nameable guilty parties, perpetrators of mass atrocity, against whom climate struggle must be waged on numerous fronts.

“There are situations in which framing a specific enemy is not useful and obscures more than it reveals — for example, when the systematic violence of policing is blamed on ‘bad apple’ cops,” said political scientist Thea Riofrancos, co-author of the forthcoming book “A Planet to Win.” “Here, we seem to have the opposite. Fossil fuel companies have sown confusion, and we need clarity about who our opponents and our allies are.” While warning about the “judicialization of politics” potentially wasting activists and lawyers’ time and resources on legal proceedings, Riofrancos noted that she has observed powerful examples of communities deploying the language of legal rights as a tactic outside courtrooms and state houses.

“Fossil fuel companies have sown confusion, and we need clarity about who our opponents and our allies are.”

Image result for Thea RiofrancosIn another forthcoming book, Riofrancos explores the case of indigenous communities in Ecuador who have invoked legal rights established in the country’s progressive 2008 constitution as a tool and weapon to use in and out of court. These groups enacted legal norms in Ecuador through various creative, interpretative strategies, which “took place in a wide variety of venues, consisting not only, or even primarily, of courtrooms, but also of ministry offices in the capital and in the provinces, state and corporate information centers in affected communities, social movement organization headquarters, anti-mining and anti-oil demonstrations, popular assemblies in repurposed auditoriums and soccer fields, and texts of various genres.”

Other terrains of social justice struggle, such as #MeToo, have also shown the potential uses of criminal justice lexicon and narrative, necessarily deployed outside of a problematic criminal justice apparatus. Those of us who believe that no lasting justice can come from carceral solutions (given the inherent violence of that system) see the intolerable risks of relying on, or bolstering, criminal justice as a path to social justice. The strength of #MeToo revelations lay not in their ability to convince a judge, but to build consensus around the need to unseat powerful perpetrators of sexual violence.

Legal norms and rights can and do take on political life through direct action, community consultation and protest…. Collective action — like last week’s mass climate strike, like voting for leaders pushing a Green New Deal, like fighting for our lives against capitalism — must be pursued with vigor. This is how we take the fight against ecocide to its perpetrators. MORE

 

Bolsonaro and ecocide in the Amazon – some questions answered

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We’ve received a lot of panicked emails over the last few days from many people asking similar questions… so here are a few answers.

Can the adoption of ecocide law be speeded up?

An amendment to the Rome Statute of the International Court must be proposed by a Head of State more than 3 months prior to the Assembly of States Parties in December making next year (2020) the earliest possible opportunity to do this. We are well aware that the time is ripe.

Can you prosecute Bolsonaro at the International Criminal Court (ICC)?

We can’t, for a number of reasons.

Firstly, (unlike in civil litigation) individuals and organisations don’t prosecute crimes, states do – or in this case the international community via the ICC, which must have a detailed communication submitted for preliminary examination in order to commence the process. This is not something that can be put together overnight.

Secondly, although we absolutely support the broadening of existing law to include ecological and climate concerns, we are not a practising law firm but a legally focussed non-profit campaign, working to practically progress the adoption of future law. Our mission is ultimately a diplomatic one and we do not take on specific cases or represent clients in court.

The Amazon situation highlights that ecocide is MISSING from the list of prosecutable offences at the ICC. It’s why our organisation exists, and why the ICC is at present powerless (with some wartime exceptions) to directly prosecute ecological destruction, however massive.

But what about Crimes Against Humanity?

We are aware that there are possibilities for including environmental crimes under some existing provisions of Crimes Against Humanity and we are conducting studies to examine this, but we are not in an evidential position to apply it to Bolsonaro ourselves (see also previous answer). Others may be. MORE

RELATED:

France’s Macron says real ‘ecocide’ going on in Amazon

Should the Rome Statute Include the Crime of Ecocide?

Image result for vietnam war ecocide
Helicopter spraying agent orange in Vietnam – Source:https://commons.wikimedia.org/wiki/Category:Agent_Orange#/media/File:US­Huey- helicopter­spraying­Agent­Orange­in­Vietnam.jpg

by ARI BILOTTAAUG 28 2019,

What is Ecocide?

The origin of ecocide as a concept is relatively modern. It stemmed from the use of the term by scientists during the Vietnam War to describe and denounce the environmental destruction and potential human health catastrophe arising from the herbicidal warfare waged by the United States military during the war.[1] The term’s very first use is attributed to Professor Arthur W. Galston speaking at the Conference on War and National Responsibility.[2]

Despite its use over the last four decades, ecocide is yet to be given a concrete legal definition.[3] Thus for the purposes of this essay, the definition, or rather approximation of ecocide is best taken from Professor Galston, who stated; “it denotes various measures of devastation and destruction which have in common that they aim at damaging or destroying the ecology of geographic areas to the detriment of human life, animal life, and plant life.”[4] It should be noted, however, that there is no consensus on the definition of ecocide.[5] Part of the difficulty in defining the term comes from how reasonable it would be to make trying the crime a reality. Another definition given of ecocide is “a planned effort to eliminate all or part of an ecosystem.”[6] This definition clearly draws from the definition of genocide, involving the “destruction of a group, in whole or in part.”[7] Though ambitious, this definition is too broad in its scope. Destroying an ecosystem, be it in whole or in part, is a definition irreconcilable with the free reign humans have over the planet and our tendencies towards altering our environments. Furthermore, ecocide is not limited to the actions of states. Corporations are equally capable of perpetrating ecocide. This is in part due to the fact that the current parameters that businesses operate in internationally has allowed for the destruction of the planet.[8]

Ecocide and the Rome Statute

The Rome Statute is the international treaty setting out the main functions of the International Criminal Court (ICC). The goal of the ICC is to investigate and try individuals who have perpetrated, or are responsible for the most serious crimes of international concern.[9] Currently, the ICC can hear cases involving four categories of crimes. Those are Genocide, Crimes Against Humanity, War Crimes, and the recently added Crime of Aggression.[10] A permanent court set up to hear the most grave crimes imaginable is no mean feat. Nevertheless, as the planet faces environmental calamity, and the Earth sees the greatest ever extinction event, the need for ecocide to fall within the ambit of the ICC is increasingly vital. Still, it is clear that the idea of ecocide as a crime predates the ICC by several decades. Ecocide’s omission from the Rome Statute was not a simple oversight. However, reasons as to why it was not included into the Rome Statute are unclear. In the early drafting of the Rome Statute, ecocide appeared as a Crime Against Peace, and was supported by all participants bar the United States, the United Kingdom, and the Netherlands. Strangely, ecocide was removed from the draft convention without any record of why.[11]

However, there is one reference to environmental crime in the Rome statute, appearing in Article 8(2)(b)(iv).[12] This is a very limited crime against the environment, and thus does not encapsulate the crime of ecocide, making it redundant. Article 8(2)(b)(iv) is largely inadequate to prosecute ecological crimes for two reasons. First, all Article 8 crimes relate to war crimes.[13] This means that only crimes committed against the environment in the context of an international armed conflict could be prosecuted at the ICC. The other main limitation of the article is in the wording. “Widespread, long-term and severe” is a cumulative definition that requires all elements to be met in order to ensure successful prosecution. This is a high threshold not likely met by most environmental damage, even that which occurs in war.[14]

The ICC does still serve a function in preventing environmental destruction. The ICC operates in a complimentary fashion. This means that it mostly hears cases referred to it by states related to the crime in need of investigation or the United Nations Security Council. To this end, the Court also offers resources to states looking to investigate and prosecute crimes relating to the illegal exploitation of natural resources or land grabs domestically.[15] So clearly there is an impetus amongst parts of the Court to combat environmental degradation.

One of the biggest problems conceptually with adding ecocide to the Rome Statute is how the International Criminal Court operates. The Court serves to prosecute individuals. With an emphasis on individual criminal responsibility, crimes of ecocide will need to be attributed to individual persons (or joint criminal enterprises) in order to go to trial.[16]Though this is not outside the realm of possibility, it is still a major obstacle. For example, the Court, as it stands is yet to prosecute the director of any corporation for a crime. This is because the ICC mostly lacks the means to prosecute individual members of corporations due to a diffusion of responsibility that exists in corporations.[17] Therefore, in order for ecocide to become an operative part of international criminal law, substantial changes would need to be made to other aspects of the Court’s functions.

Why Ecocide Should Be Added to the Rome Statute

The main reason why ecocide should be added to the Rome Statute is that it could help curtail the progression of climate change. As it currently stands, the Paris Agreement sets out that the planet needs to reduce global temperature increase to 1.5 degrees centigrade above pre-industrial levels in order to reduce the risks of climate change.[18]Despite the urgency of the issue, this aim is a long way off being met. Current predictions forecast a global temperature rise of 5 degrees, nowhere near the targets of the Paris Agreement. MORE

London Climate Action Week: International criminal law and the environment – considering a law of ‘ecocide’

“…whilst this has highlighted our collective responsibility to protect our planet, it is without doubt that any significant change can only be born from a collective political will to address the issue.”

United Kingdom, July 3, 2019

Image result for polly higginsIn April 2019, Polly Higgins, a British barrister, passed away after devoting ten years of her life to a campaign for a new law of ‘ecocide’ – a law that would make corporate executives and government ministers criminally liable for the damage they cause to the environment. In this blog, we consider the current framework for punishing environmental crime at international level, and what the proposed crime of ecocide might look like.

In the 1970s, on the back of an emerging trend of ‘earth law’ and jurisprudence, consideration was first given as to whether or not to include the crime of ecocide in the Rome Statute, which governs the jurisdiction of the International Criminal Court (“ICC”). One of the key developments in the move towards the recognition of ‘earth law’ was the identification by the International Court of Justice (“ICJ”) of a category of international obligations owed by states to the international community as a whole (erga omnes obligations) – including those relating to the environment. However, in 1996 the framers of the Rome Statute decided to exclude ecocide from its scope, thereby limiting the ICC’s jurisdiction to war crimes, crimes against humanity and genocide.

Current international law

The ability of the ICC to prosecute environmental criminal offences is limited to those acts which fall within the definition of Article 8(2)(b)(iv) of the Rome Statute, where environmental damage is listed as an example of a war crime. Specifically, the war crime of environmental damage is defined as the:

intentional [launch of] an attack in the knowledge that such an attack will cause…widespread, long-term and severe damage to the natural environment which would clearly be excessive in relation to the concrete and direct overall military advantage anticipated”.

The requirement for the damage to be “widespread, long-term and severe” sets the criminality threshold very high, and it is therefore unsurprising that no individual has yet been prosecuted under this provision. Further, the reference to environmental damage as a war crime limits the ICC’s jurisdiction of environmental offences to those committed during times of war. As currently drafted, the Rome Statute contains no provisions to protect non-human inhabitants of a given territory, indigenous or cultural rights, and nor does it cover environmental loss, damage or destruction to the environment during times of peace

Other international agreements, such as the Paris Agreement and UN Sustainable Development Goals, collectively set ambitious targets to combat climate change. However, none of these agreements are reinforced by international criminal law. They do not prohibit ecocide or impose any legal responsibilities on states, corporates or individuals. Rather, they are dependent on the cooperation and good faith of those states who are party to the agreements.

Introducing an international crime of ecocide would impose criminal liability on those individuals said to be responsible. The ‘Eradicating Ecocide’ website provides the following definition of ‘ecocide’, which campaigners would like to see adopted:

an act or omission committed in times of peace or conflict, by any senior person within the course of State, corporate or any other entity’s activity which cause, contribute to, or may be expected to cause or contribute to serious ecological, climate or cultural loss or damage to or destruction of ecosystems or a given territory, such that peaceful enjoyment by the inhabitants has been or will be severely diminished”.

Under this definition, a perpetrator must have had, or ought to have had, knowledge of the likelihood of the harm. Significantly, the definition also seeks to criminalise omissions, which would have the practical effect of incentivising individuals to take positive action to preserve the environment. Introducing criminal liability for omissions would significantly broaden the scope of the definition of ecocide from that considered in 1996, whilst at the same time placing a duty on governments and businesses to ensure that industry does not cause large scale damage to the environment.

Individual or corporate liability?

Notably, one of the key purposes of ecocide is to criminalise those of ‘superior responsibility’, including CEOs and government ministers. This emphasises the enhanced responsibility of those at the head of corporations which have a significant environmental impact.

Interestingly, the current wording of the definition does not impose responsibility on corporate entities themselves. In fact, nowhere in the Rome Statute is there any provision by which to hold corporates to account for international crimes. But with the recent publication of the International Law Commission’s draft Convention on Crimes Against Humanity, which includes a provision for imposing responsibility on corporate entities, there is perhaps space to argue that this could be extended to the crime of ecocide. However, bearing in mind the range of theories of corporate liability across domestic legal systems, agreeing a common basis of corporate liability in the context of international criminal law would be a significant achievement. MORE

The destruction of the Earth is a crime. It should be prosecuted

This tribute to Polly Higgins by George Monbiot appeared in The Guardian, Mar 28.  On Apr 21 came the news that Polly had passed away. Monbiot wrote

““If this is my time to go,” she told me, “my legal team will continue undeterred. But there are millions who care so much and feel so powerless about the future, and I would love to see them begin to understand the power of this one, simple law to protect the Earth – to realise it’s possible, even straightforward. I wish I could live to see a million Earth Protectors standing for it – because I believe they will.”

Businesses should be liable for the harm they do. Polly Higgins has launched a push to make ecocide an international crime

Illustration by Eva Bee
Illustration by Eva Bee

Why do we wait until someone has passed away before we honour them? I believe we should overcome our embarrassment, and say it while they are with us. In this spirit, I want to tell you about the world-changing work of Polly Higgins.

She is a barrister who has devoted her life to creating an international crime of ecocide. This means serious damage to, or destruction of, the natural world and the Earth’s systems. It would make the people who commission it – such as chief executives and government ministers – criminally liable for the harm they do to others, while creating a legal duty of care for life on Earth. 

I believe it would change everything. It would radically shift the balance of power, forcing anyone contemplating large-scale vandalism to ask themselves: “Will I end up in the international criminal court for this?” It could make the difference between a habitable and an uninhabitable planet.


From Ecocide to Ecolibrium: The Great Turning | Polly Higgins | TEDxUppsalaUniversity

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How to Defend the Planet in Law

In the face of a growing raft of evidence that increasingly points to an imminent global catastrophe—the very self-destruction of humanity, even—one means of taking concrete action, as opposed to fatalism and denial, is to promote new legal frameworks that can structure debate and action on this issue. Valérie Cabanes shows that defining the concept of ecocide is the first key step along this road.


The Earth needs the adoption of the Crime of Ecocide to be adopted by the International Criminal Court as the fifth Crimes Against Humanity. This law would have the effect of preventing ecocide as humanity accepted our property role as trustees of life.

The destruction of the Earth’s ecosystem by industrial technologies that show no respect for living things is tantamount to mortgaging the living conditions of current and future generations. It is vital that the people (and legal entities) that are actively responsible for this destruction should be prosecuted when their decisions affect the integrity of life, and therefore the safety of the planet. The crime they commit is that of ecocide—in a sense, the original crime; the crime that destroys the very conditions for habitability on Earth. For several decades now, a series of actors have been seeking to ensure that the intrinsic value of nature and the right of ecosystems to exist are recognized, by inventing the legal means to defend them in court.

In 1986, Doudou Thiam, the Special Rapporteur tasked by the International Law Commission with submitting a draft statute establishing the future International Criminal Court (ICC) to the United Nations General Assembly, suggested that the list of crimes against humanity should be supplemented by a provision making violations of the rules governing environmental protection punishable acts. The text he proposed in Article 12 (“Acts constituting crimes against humanity”) of his draft reads as follows:

The following constitute crimes against humanity: […] Any serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment. 

The Special Rapporteur added the following comment: “It is not necessary to emphasize the growing importance of environmental problems today. The need to protect the environment would justify the inclusion of a specific provision in the draft code.” 

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VALÉRIE CABANES: ICC SHOULD RECOGNIZE THE CRIME OF ECOCIDE

Valérie Cabanes

Lawyer and activist Valérie Cabanes has seen situations on all the world’s continents where people’s fundamental rights are being undermined by harm to their natural environment.

I realized the direct link that exists between major damage to a local ecosystem and human rights violations against a population that relies on it for survival.

Here she describes some of these situations,  analyses recent environmental pressure on the International Criminal Court (ICC) and  proposes an international legal structure putting as its priority the respect of the global ecosystem to restore security and peace. MORE