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

Pacific Islands States Commit to Advancing International Criminal Justice

 

Laying the groundwork to make ecocide a crime against humanity under the authority of the International Criminal Court

Group Photo

On 31 May 2019, more than 40 members of parliament, government representatives, and senior diplomats convened at a strategic high-level event in Port Vila, Vanuatu, to promote the advancement of international criminal justice in the Pacific Islands region. The Roundtable was hosted by the Government of Vanuatu and organised by Parliamentarians for Global Action (PGA), a worldwide network of legislators committed to promoting justice and the rule of law, with the invaluable cooperation of the International Criminal Court (ICC), the Republic of Korea, and the European Union.

The Pacific Islands Roundtable on the ratification and implementation of the Rome Statute of the International Criminal Court brought together representatives of the executive and legislative branches of the governments of Fiji, Kiribati, Samoa, Solomon Islands, Tonga, Tuvalu, and Vanuatu; senior ICC officials; representatives of the diplomatic community; academic experts and members of civil society, united in their objective to promote international justice, including through the universality of the Rome Statute system.

Universality of the ICC: Moving Closer

“Now, more than ever, it is the time for our great region to join this universal system of international justice and take a decisive stand in the world fora. We are very hopeful that the example of my country will inspire all the remaining States that have still not taken this step.” — Hon. Ralph Regenvanu, Minister of Foreign Affairs, International Cooperation and External Trade of Vanuatu

The universality of the Rome Statute and effectiveness of the ICC system are essential prerequisites for accountability and lasting global deterrence for the most serious crimes of international concern; namely, genocide, crimes against humanity, war crimes, and the crime of aggression, which shall not be left unpunished. Of the 16 independent and self-governing States that comprise the Pacific Islands Forum, only eight are States parties to the Rome Statute and only three have effectively implemented the provisions of the Statute of the ICC on complementarity and cooperation with the Court. MORE

Ecocide, Impunity And Polly Higgins

Polly Higgins drew the stark link between corporate actions and the extensive destruction of ecosystems in the drive for profit that discounts the people and the planet.

Image result for stroud scotland
Stroud, Scotland, Polly Higgins home

Sunday, April 21, 2019, is a day that would pass in history as one of a thoroughly needless and mindless bloodletting. On that day, marauding violent men snuffed the life out of 17 citizens in Yar Center, near Sherere Community in Kankara local government area of Katsina State, Nigeria. In Sri Lanka, multiple attacks in churches and hotels took the life of more than 300 persons in an unconscionable visitation of hate on innocent individuals. Various reasons have been hazarded as being the root cause of the murders, including revenge for attacks elsewhere and the sheer spread of terror. The truth is that murder cannot be justified and must be condemned.

Sadly, these crimes were committed at a time when the world was marking the death and resurrection of Jesus Christ. The mayhem in churches in Sri Lanka illustrated the depth of depravity that humans can sink to.

Image result for polly higgins While shock and consternation gripped communities in diverse places, a key voice for sanity in our relationship with nature, ourselves and other species quietly slipped away. From reports, we read that she passed on peacefully. We are talking of Polly Higgins who passed on at the age of 50.

Higgins passed on in the evening of Easter Sunday, a day marked by the inconceivable mass murders in churches and hotels of Sri Lanka as well as atrocious killings in Nigeria and continued violence elsewhere. She stood out as a shining light demanding the recognition of ecocide as a crime in the class of the crime of genocide, crimes against humanity, war crimes and the crimes of aggression. She was in the forefront of the campaign for the addition of ecocide among these crimes against peace which are all listed in Article 5(1) of the Rome Statute.

Ecocide is defined 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.”

I was privileged to meet Higgins in the GAIA Embassy as we fondly call the home of Liz Hosken in London. She wrote three books on ecocide, including one titled Eradicating Ecocide. Higgins actively spoke on UN platforms and to governments, reminding them that this crime was indeed on the draft of the Rome Statute up to 1999 when it was dropped at the insistence of a handful of nations.

She drew the stark link between corporate actions and the extensive destruction of ecosystems in the drive for profit that discounts the people and the planet. Her clear illustrations of the massive ecological destruction around us as ecocide quickly captured my attention. It is certain that the objective observation of the ongoing or prospective crimes around the exploitation of Mother Earth will show that this is one crime that must be recognised today and not delayed any further. Crimes of this magnitude are going on around the world, benefiting powerful entities such as transnational corporations and the politicians that do their beck-and-call. 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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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.”

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Climate change activists who occupied International Criminal Court arrested by Dutch police
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