Outlawing ‘ecocide’: The battle to make a crime of environmental destruction


Picture courtesy of crustmania

CommonSpace speaks to Cath Andrews of Ecological Defence Integrity, who seek to have wide-scale environmental destruction ranked alongside genocide and war crimes under international law

AS ENVIRONMENTAL activists around the world press for greater action to combat the climate emergency, much attention has understandably been paid to their high-profile campaigns, such as this year’s climate strikes, and to proposed legislative solutions, such as the various formulations of a Green New Deal being considered in both the United States and Scotland.

However, Ecological Defence Integrity, a non-profit organisation founded in 2017 by the late UK barrister Polly Higgins and the environmental campaigner Jojo Mehta, is now working towards a legal approach to ending environmental destruction – by gaining recognition of ‘ecocide’ as an atrocity crime in the International Criminal Court.

As defined by the EDI, ecocide is the “serious loss, damage or destruction of ecosystems, and includes and climate and cultural damage.” Should this be recognised as an atrocity crime, it would rank alongside genocide, war crimes and crimes against humanity in international law.

Ahead of the International Criminal Court’s annual conference at the Hague in December, CommonSpace spoke with EDI representative Cath Andrews about ongoing efforts to ratify and enforce a law against the large-scale destruction of the natural living world.

Under the rules of the ICC, any member-state, regardless of size, can propose an amendment to the court’s governing document, the Rome Statue. This amendment can be adopted with a two-thirds majority. Coupled with the fact that any member state can then ratify and enforce, this makes it the only global forum where ecocide can be outlawed by those nations which suffer from its effects – and place those who continue to pollute in the dock.

Regarding the future prospects of such a law, Andrews explains: “The earliest an amendment could be proposed is 2020 (three months must pass before it can be discussed at a meeting of States Parties).

“We have not yet drawn the necessary line making ecosystem destruction morally unacceptable – and that is what is needed.” Cath Andrews, Ecological Defence Integrity

“We are working with Pacific small island states. Diplomatic confidentiality means that we are unable to disclose all developments, but leading Pacific voice Vanuatu has publicly acknowledged working with us.”

Despite the process of enacting such a law being in the early stages, Andrews argues that its eventual success is “inevitable”, given the urgency of the current global environmental situation.

“We believe a law of this kind will be inevitable at some point given the current state of ecological emergency we are witnessing,” says Andrews. “We consider it our job to speed up its establishment, and that’s why we’re working with those who have the biggest incentive to table it – the islands at the sharp end of climate change who are already going underwater, suffering typhoons and extreme weather events on a regular basis.”

While there may be a sense of moral outrage amongst many over the current climate emergency and what activists view as an insufficient response from the world governments, the EDI’s hopes of bringing a binding legal component to the crisis go further, Andrews explains – something which has proven to be a source of difficulty in advancing a recognition of ecocide in international law.

“Our main obstacle is one of perception,” Andrews says. “Those who are deeply embedded in the current economic thinking find it very hard to grasp what many land-based and indigenous cultures know as the simple truth – we cannot continue to destroy the ecosystems that sustain us if we are to survive and thrive on this planet.

“But we have not yet drawn the necessary line making ecosystem destruction morally unacceptable – and that is what is needed. In our so-called ‘first world’ culture, that line is drawn by criminal law. No amount of climate litigation will draw it, and no amount of regulation will draw it. As one head of a UK bank said a few years ago, when asked why the bank continued to fund ecocidal activities: ‘It’s not a crime.’”

Despite the EDI’s focus on international law, Andrews does not discount the necessity of legislative and campaign-based efforts to combat environmental destruction.

“All are important,” Andrews argues, “but it is criminal law that shifts the cultural moral baseline. The harm will continue until it is no longer permitted. So, while political and campaigning approaches are all hugely helpful, without ecocide law they are infinitely steeper roads to climb.

“We see this law as the key to unlocking a different way of approaching both human activity and our relationship with the natural living world.  It shifts the baseline towards a fundamental principle of ‘first do no harm’.”  SOURCE

 

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

Extinction Rebellion climate protests spread across UK

Demonstrators disrupt five UK cities calling for legal recognition of ‘ecocide’ as an international crime.


Hazel Shearing / BuzzFeed News

London – As activists erected the mast of a boat emblazonedwith “act now”, hundred of climate change protesters gathered in front of the vessel blocking traffic on The Strand, one of the UK capital’s major arteries.

A similar boat, now a symbol of the Extinction Rebellion protests, blocked Piccadilly Circus in April when the climate activist group brought much of London to a standstill for 10 days.

The group kicked off a new round of demonstrations across the UK on Monday targeting five cities – London, Glasgow, Cardiff, Bristol and Leeds – with creative and civil disobedience action through to Friday.

They aim to cause disruption to raise awareness of the climate crisis and urge the government to enact policy measures aimed at achieving a net-zero carbon footprint by 2025. Action in each city focuses on a different theme, including “climate refugees” and rising sea levels.

In London, protesters at the Royal Court of Justice demanded the “legal system take responsibility in this crisis” and called for “ecocide” to become an internationally recognised crime.

“At the moment, the damage and destruction to our planet that continues day by day does so because it’s permitted,” Jojo Mehta, director of a campaign called “Stop ecocide: change the law”, told Al Jazeera.

Mehta, a longtime environmental activist, cofounded the campaign with Polly Higgins, a lawyer who died of cancer in April after spending a decade calling for ecological damage to be criminalised, so governments and corporations that are responsible could be held to account.

‘An achievable route’

She said such criminalisation could be “straightforward” at the international level. It would require an amendment to the Rome Statute, the treaty that established the International Criminal Court, adding ecocide to a list of existing international crimes.

“Any head of state that is a member, no matter how small, can propose an amendment to the Rome Statute, and there’s no veto to that,” Mehta explained.

“Once it’s tabled, it’s just a question of adding signatures. It’s an achievable route,” she added, before being called on board the boat, named after her friend, to deliver a speech.

Extinction rebellion protest [Ylenia Gostoli]
Extinction Rebellion protesters block The Strand in central London [Ylenia Gostoli/Al Jazeera]

As performers and speakers hit an improvised stage, some activists made banners while others glued their arms together, linking their hands with a black tube symbolising an oil pipe. Five police vans were positioned on the road nearby, blocking their route to Waterloo Bridge.

Following Extinction Rebellion’s previous round of climate protests, the UK Parliament declared a “climate emergency”, passing a non-legally binding motion tabled by Labour leader Jeremy Corbyn.

In June, the UK was the first country to commit to achieving carbon neutrality by 2050 – either by avoiding emissions or offsetting them with projects aimed at soaking up carbon dioxide. But Extinction Rebellion called this target too little, too late. MORE

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Polly Higgins — Meet the Lawyer Taking on Big Oil’s ‘Crimes Against Humanity’

Scientists estimate that emissions from just 90 companies contributed for nearly 50% of the rise in global mean surface temperature since the end of the Industrial Revolution. We have to make the criminal actors destroying our planet accountable. Lawyer Polly Higgins argues that making Ecocide a crime and holding principal actors personally responsible for their actions, is the most effective way to save our planet. Find out more about Mission Life Force here

Polly Higgins

Polly Higgins is a woman on the hunt. And you get the sense that, after decades of working towards holding powerful polluters to account, her prey may finally be in sight.

When you’re looking at any crime, you’re looking at who are your suspects,” she tells me in a soft Scottish accent that belies the hard truths she regularly delivers. “Within a corporate context, you’re looking at CEOs and directors. Within a state context, it is ministers and Heads of State.”

They’re the ones where final responsibility rests for making the decisions that can adversely impact many hundreds of thousands, if not millions, and indeed — in the case of climate crime — billions of people.”

Climate activism is surging, with the school strikers chastising older generations for failing them, and Extinction Rebellion hitting headlines with its creative direct actions in the name of “climate justice”.

But Higgins has her own, more institutional approach to what she agrees is a looming climate crisis: making it illegal to deliberately destroy the environment. She is calling for the International Criminal Court in the Hague to recognise ‘ecocide’ as a crime against humanity, alongside genocide and war crimes. She explains:

There’s a growing recognition that a lot of campaigning is not getting us where we need to go, and just saying fossil fuel extraction should stop is not enough. It has to be criminalised.”

That’s why, in 2010, Higgins proposed an amendment to the Rome Statute — the treaty that established the International Criminal Court. It defined ecocide as “the extensive damage to, destruction of or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been or will be severely diminished.”

MORE

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MISSION LIFE FORCE

Why ‘ecocide’ needs to become an international crime

And how one British lawyer is working to make that happen.

criminal law pyramidCC BY 4.0 Mission Life Force

In 1996, the Rome Statute was signed by 123 nations. It states that there are four ‘crimes against peace’, or atrocities, as we might call them in everyday speech. These are genocide, crimes against humanity, war crimes, and crimes of aggression. These are the sorts of acts that no one disputes because they’re incontrovertibly viewed as wrong and will be tried at the International Criminal Court (ICC) in the Hague.

Originally there was supposed to be a fifth item – ecocide. Ecocide is defined as “loss or damage to, or destruction of ecosystems of a given territory, such that peaceful enjoyment by the inhabitants has been or will be severely diminished.” It was removed at a late stage in drafting, due to pressure from the Netherlands, France, and the UK.

Rome Statute amendment

As the threat of climate change becomes more real, there is growing pressure to have the Rome Statute amended to include ecocide. In the words of British environmental writer George Monbiot, this would change everything.

“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…

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.”

Right now, there is little to no incentive for companies to change their environmentally-devastating ways. If citizens (with time and money) pursue civil suits against them, they might get fined a small amount (for which they’ve already budgeted); but their CEOs face no lasting punishment, despite the fact that their decisions affect the wellbeing of billions. MORE

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