Ecocide: crime-fighting for the planet

Gita Parihar

25 February 2013

It seems as if every day that passes brings news of large-scale future or current harm to the environment. Greenpeace recently produced a “Point of No Return” report highlighting 14 “carbon bomb” projects which, if they were all to go ahead, would raise global CO2 emissions by 20%, pushing us into runaway climate change.  The destruction caused by activities such as mining tin for smartphones, highlighted in Friends of the Earth’s Make It Better campaign, also harms people and nature.

It is difficult to bring legal challenges in this area. In the past few weeks, a Dutch court rejected four out of five claims in a case brought against Shell for oil pollution in Nigeria. It upheld the principle that parent companies can be responsible for what their subsidiaries do in other parts of the world, but did not find the parent company liable in that particular case.

Environmental laws often set a fine for breach, which means that any company can sometimes decide that it is more profitable to choose to pay the fine and continue to pollute than be forced to take action to stop what it is doing. The legal principle of the “corporate veil” can make it hard to work out which parts of companies are responsible for environmentally damaging decisions. Often the law requires damage to have taken place before a case can be brought, making it hard to prosecute for activities that cause climate change until it’s too late.

Broadly, all of this means that the law is ill-equipped to deal with the CEOs of polluting companies (or politicians tasked with approving their projects) if they chose to focus on short-term advantage and profit, rather than the impacts of their activities on people, the planet, or future generations. That could all change if moves to make the crime of ecocide a “crime against peace” are successful.

The word “ecocide” is used to describe action that causes massive damage or destruction to a particular area, or to humans or other species living there. The aim is to attribute individual and collective (corporate, governmental or military) criminal responsibility for the harm. The term was first used as far back as 1970, when there was a proposal for an international agreement to ban ecocide.  In his opening speech at a major world environment conference in 1972 the Swedish Prime Minister described the Vietnam war as an “ecocide”.  In 1993, when ecocide was listed as a Crime Against Peace in the draft Code of Crimes Against Peace and Security of Mankind (which ended up forming the basis for the rules of the International Criminal Court) only three countries are on record as having objected:  the Netherlands, the UK and the US. Yet the crime did still not make it on to the final form of the statute book for the court. It is not clear what happened, but Christian Tomuschat, one of the officials working on the issue at the time said “One cannot escape the impression that nuclear arms played a decisive role in the minds of many of those who opted for the final text which has now been emasculated to such an extent that its conditions of applicability will almost never be met.”

Behind the ecocide debate lies a crucially 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? And how do we deal with those responsible for this destruction? It is clear that these were questions that states have been unable (or unwilling) to address in the past. The question lay buried in the long grass, until environmental lawyer Polly Higgins and her team at Eradicating Ecocide recognised that a law on ecocide could provide some of the answers. They are campaigning for such a law to create a deterrent effect that will halt the massive and continuing environmental destruction we see today.

There are signs of optimism for the campaign. Recently the UN decided that it will carry out a study on the definition of environmental crime, which will consider the possibility of making ecocide a fifth crime against peace, alongside genocide, crimes against humanity and other particularly heinous crimes. A workplan is being developed on how to take this further.

And just last month, a Europe-wide campaign began for one million citizens to sign a call for Brussels to consider passing legislation on ecocide. The call is for the EU, as a winner of the Nobel Peace prize, to lead the way to making ecocide the 5th international crime against peace. The road towards achieving such a result is a long one, but with so much at stake, there is no time for further procrastination.

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