Protesters occupied Oxford Circus as part of Extinction Rebellion demonstrations. Getty Images
Earlier this week Extinction Rebellion parked a blue boat outside the Royal Courts of Justice in the Strand and occupied the busy London street with a sit-down protest, causing traffic jams and commuter chaos. It came at the start of a week of protest events around the country.
This is not the first time the non-violent environmental protest group have caused disruption in London. In April this year, they occupied Oxford Circus (where they parked a pink boat) and brought traffic on Waterloo Bridge to a standstill with 11 days of protests that the group described as the ‘biggest act of civil disobedience in recent British history’.
But while some protesters have been arrested for public order offences, the demonstration outside the High Court was not related to any of those cases. Instead, it was in memory of an environmental lawyer called Polly Higgins who died earlier this year, and (among other demands) to promote her proposal for a new international law criminalising ‘ecocide’.
What is ‘ecocide’?
According to the Stop Ecocide campaign, ‘Ecocide is serious loss, damage or destruction of ecosystems including climate and cultural damage. We believe ecocide should be recognised as an atrocity crime at the International Criminal Court – alongside Genocide, War Crimes and Crimes Against Humanity.’
A more legalistic definition of ecocide states that it involves ‘loss or damage to, or destruction of ecosystem(s) of a given territory(ies), such that peaceful enjoyment by the inhabitants has been or will be severely diminished.’ (‘Peaceful enjoyment’ in this context means ‘peace, health and cultural integrity’.)
That definition comes from the website Ecocide Law which further explains that ‘Despite the existence of many international agreements – codes of conduct, UN Resolutions, Treaties, Conventions, Protocols etc – the harm is escalating. Not one of these international agreements prohibits ecocide. The power of ecocide crime is that it creates a legal duty of care that holds persons of “superior responsibility” to account in a criminal court of law.’
They argue that if ecocide is established as an international crime, prosecutions could be brought by nations who are signatories to the Rome Statute, under which the International Criminal Court operates.
A model law
A model law has been drafted that would amend the Rome Statute to create a specific offence of ecocide. It would create ‘an international and transboundary duty of care’ both on governments or relevant ministers and businesses who exercise rights over a given territory to ‘ensure ecocide does not occur’.
The statute currently recognises four core international crimes: genocide, crimes against humanity, war crimes, and (since 2010) the crime of aggression. The ICC can only investigate and prosecute those crimes in situations where states are unable or unwilling to do so themselves.
Any signatory to the Rome Statute of the International Criminal Court can propose an amendment, but such an amendment requires the support of a two-thirds majority of the states parties, and will not enter into force until it has been ratified by seven-eighths of the states parties. This process is likely to take some time, even if a state party takes the first step of proposing the necessary amendment. However, it has been done before, by the addition of the crime of aggression in 2010. So it is certainly not impossible.
Can it work?
Although it may sound unfamiliar, the concept of ecocide is not new. Use of the term goes back half a century, to the early 1970s when the use of chemical defoliants such as Agent Orange during the Vietnam War were condemned by environmentalists as a form of ecocide. It appears to have been included in the early versions of the Draft Code of Crimes Against the Peace and Security of Mankind (as the Rome Statute was initially known), but was dropped by the time it had been formalised and signed as the Rome Statute of the International Court in 1998.
Polly Higgins proposed adding it back in to the Statute at the United Nations in 2010 and continued to campaign for such an amendment, most recently at the Hague Talks to mark the 70th anniversary of the Universal Declaration of Human Rights in December 2018. But it is clear that such amendment could be a long and drawn out process and, even if successful, it could be many years before any prosecutions were concluded.
How effective would such a remedy be as a deterrent to environmental destruction which, by its nature, needs both urgent and concerted international action. Is transnational criminal law really the best instrument to use? MORE