GETTING THE LAW IN ORDER

 

The article below is the last one Polly contributed to before her death on Easter Sunday.  She left peacefully, in the company of her devoted husband Ian and close friends, with a mischievous smile on her face.

Oliver Tickell meets barrister and activist Polly Higgins.

Stop ecocide: change the law
Polly Higgins departed this physical dimension on the afternoon of Easter Sunday, at the end of an extraordinary week that saw her life’s work begin to emerge into the awareness of thousands

Polly Higgins, barrister turned environmental campaigner, is a woman with a mission, and one thing she can’t be accused of is not thinking big enough. Her aim is simple: to create a new international crime of ecocide – the mass destruction of ecosystems, air, water and climate – mirroring the existing international law against genocide, the mass destruction of a people.

But why exactly do we need an ecocide law? After all, we already have a host of international environmental laws and treaties, like the Paris Agreement on climate change, or the United Nations Convention on the Law of the Sea (UNCLOS). “All these treaties are effectively civil law among states,” explains Higgins. “If one state has a dispute with another over a breach of treaty obligations, it has to go to court and seek justice at its own expense. There is no one to enforce the law, the penalties are often feeble, and no individual can be held to account as the proceedings are purely between states.

“Take the case of fracking. In 2017, I took a road trip through North Dakota and northern Montana to see the fracked fields and communities. It was like driving into hell. Huge tracts of land are now broken up with nodding donkeys [a kind of pump], flares, pipelines, roads, trailer parks… The atmosphere is acrid with the toxic chemicals and combustion products. You can taste it in your mouth. Flaring was going on day and night. It was truly horrific. Now, those fractured communities may have some scope for civil litigation against the fracking companies. But they cannot stop the activity itself. Going to law is very expensive, if there’s a payout it is always too little, too late, and the companies may have gone bust before they ever pay. And all the time the business carries on as usual.

“So civil litigation is not fit for purpose for environmental destruction. This is what is known as ‘missing law’ – law that is obviously needed but is not there. And where you have missing law you get injustice. In the first RBS meeting after the UK government bailed the bank out, there was a press conference and the CEO was asked, ‘Why are you financing the exploitation of the Athabasca tar sands?’ And he just laughed and said, ‘It’s not a crime!’ That’s what we have to change. And we have to go for ‘superior responsibility’ – holding the senior officials, CEOs, heads of state, ministers, directors to account where there has been a reckless disregard of climate and Nature, or even deliberate misinformation. We have to go one step above civil law and make fracking a crime!” 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