Should ecocide be a crime?

On Friday many environmental lawyers will have their eyes on the UK Supreme Court, the venue for a mock trial for the crime of "ecocide", a crime that doesn't yet exist. The fictional chief executives of two multinational companies will be put in the dock and prosecuted by leading criminal defence lawyer Michael Mansfield QC, who has been involved in a range of high profile cases and inquests, including the Bloody Sunday incident and the death of John Charles de Menezes.

"Ecocide" is the brainchild of Polly Higgins, a UK barrister who is coming up with some imaginative new legal ways of looking at the environmental crises. Polly describes the crime as covering the mass damage, destruction to or loss of ecosystems in a particular territory at a level which severely diminishes "peaceful enjoyment" by inhabitants of the territory, including wildlife.

"Ecocide" would be added to a list of existing international crimes (such as genocide and war crimes) that can be prosecuted at both national and international levels because they are considered to be of concern to the international community as a whole. The aim behind doing this is to create a deterrent effect that will halt the massive and continuing environmental destruction we see today. The fictional CEOs tried on Friday will be prosecuted for ecocide on the basis of business activities like deforestation of the Amazon, Arctic drilling and tar sands extraction. At the end of the mock trial, the jury will decide whether to convict them of the crime.

The proposal for a crime of ecocide raises all manner of legal issues. You'll be pleased to hear that I'm not intending to go through them all, but one is whether ecocide would fit within a group of crimes that were originally intended to address the horrors of two world wars with an attitude of "Never again". It is clear that some conflicts have at their root environmental destruction or scarcity of resources, but ecocide would in some ways be distinct in a group of crimes that focus on war and aggression. I also wonder whether creating international crimes has the deterrent effect that was hoped for, genocide and war crimes have occurred since World War 2, in the breakdown of the former Yugoslavia and Rwanda for instance. There's no denying though that defining an activity as an international crime gives it a particular stigma and gravity.

Behind the ecocide trial lies a vitally important moral, political and legal question. It is this: How should we respond to the continuing destruction of the planet's ecosystems, in the face of clear evidence that this damage is now occurring at a level that threatens our own survival as a species and that of many others? Changes in the climate and many other indicators show that there is an urgent need to take action and environmental lawyers such as Polly are highlighting the inadequacy of our existing legal system to address this. Laws that show no mercy to an inner city youth who steals trainers from Footlocker do not seem to be able to contain within their grasp companies and individuals who destroy the natural fabric on which our existence depends.

Environmental laws often set a financial penalty for breach, which can allow companies to factor in the cost of paying the fine into the activity, rather than halting it. In other cases large multinationals can hide behind a "corporate veil"- making it hard to trace environmental destruction by a company's subsidiary in Latin America to its headquarters in Europe for example. Often the law requires damage to have taken place before a case can be brought, making it hard to prosecute for runaway climate change until it has actually happened. Large companies that engage in environmental and social destruction have financial resources and influence that dwarf those who try and challenge them. Unlike many countries in the world, the UK affords no constitutional protection for the environment in the form of a right to a healthy environment.

As a result of such shortcomings politicians and the CEOs of polluting companies are free to focus on activities resulting in short-term advantage and profit, without regard for their impacts on people, nature or future generations. Whether a crime of ecocide would work in practice or not, the trial is a welcome attempt to highlight the deadly serious consequences of environmental destruction and the urgent need to address these.