Ecocide!

She is introduced at prestigious lectures, seminars and conferences as Barrister, Author and International Environmental Lawyer and has been voted by The Ecologist as one of the Top 10 Influential Leaders. She is proposing that Ecocide be made the fifth Crime Against Peace. Who is she? Polly Higgins.

What is Ecocide?

Ecocide essentially refers to the damage and destruction of ecosystems by humans and their agencies through activities such as mining, fossil fuel extraction, toxic waste and deforestation. In late May I was lucky enough to hear Polly speak at a lecture entitled ‘Eradicating Ecocide: laws and governance to prevent the destruction of our planet’.

Ecocide as a word has been used since the 1970s but until recently it revealed next to nothing in a Google search. Then BP spilt an inordinate amount of oil in the Gulf of Mexico, an ‘accident’ that represented the most potent example of human-made environmental damage, according to Polly. At that moment, ‘Ecocide’ went viral. However, Ecocide is much more than a buzzword. It is about imposing a legal duty of care and it is about a broader recognition of how are all interconnected.

Of course there are natural causes of environmental damage such as tsunamis, floods and earthquakes, but some of these are symptoms of our activities and are linked to human-induced climate change. We should be turning off the tap upstream.

Crimes Against Peace

The international Crimes Against Peace were established in the aftermath of WWII when it was recognised that life is not cheap and we should therefore minimise certain destructive behaviours. According to the Rome Statute, the four existing Crimes Against Peace are: Genocide, Crimes Against Humanity, War Crimes and Crimes Of Aggression. All of these things have been out-lawed and criminalised internationally. In order to expand our arena of concern to all life, and in recognition of our interconnectedness, Polly proposes that Ecocide is elevated to the status of Crime Against Peace.

The Time is Now

The hardware required to make Ecocide a Crime already exists, so there is no need to re-invent the wheel. As well as Crimes Against Peace we have the United Nations, The Right to Life and The International Criminal Court (ICC). The ICC has only recently come into existence place, in 2002. Prior to this there were only International Courts set up after events as one-offs, for example Nuremberg after WWII.

Ecocide is a crime in war time but, as Polly stated, it also needs to be a crime during peace time. As another past example, Article 8 (2) (b) of the tribunal for the Vietnam War relates to the use of Agent Orange and various other toxic chemicals that had devastating effects on entire ecosystems. The definition of this Article can be translated for use in the industrial world, if we simply swap the word military for the word corporate:

‘Widespread long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall CORPORATE advantage anticipated’.

Et voila we have an Article that applies to the likes of BP, a company that would have gained only six months to two years profit from their drilling in the Gulf of Mexico. The Environmental Modification Convention (ENMOD) 1977 defined ‘widespread’ as encompassing an area of several hundred kilometres, ‘long-lasting’ as 3+ months and ‘severe’ as involving serious or significant disruption or harm to human life and natural resources. For the BP oil spill, that equates to: tick, tick, tick.

The time for Ecocide being made into a crime is now. The Economics of Ecosystems and Biodiversity (TEEB) Initiative Report on Corporate Activity shows that in 2008, business and industry caused $2.2 trillion worth of environmental damage and destruction, which is only exceeded by seven nations' GDPs. In 2009, this figure had almost doubled to $4 trillion. Yet this damage, leading to resource depletion, conflict and war, is not a crime; on the contrary, it is acceptable. Polly reiterated that we cannot afford to simply slow this trend, we need to stop it in its tracks.

But the economic system will collapse!

Just as William Wilberforce succeeded in abolishing slavery through building the case for out-lawing the heinous practice, we can do this for Ecocide. Wilberforce suggested withdrawing the subsidies for companies engaged in slave labour activities and creating new subsidies for the ~300 companies who did not use slavery. This could be one mechanism for abolishing Ecocide, except this time it is for ~3000 companies. The backlash is certainly similar: ‘the economy will collapse’, ‘there is a public demand’, ‘it is a necessity’, but in retrospect abolishing slavery was clearly the right thing to do and the economy did not collapse, it thrived. Polly states that fines act as ‘catch me if you can’ laws and are ineffective. She believes that we need more totalising action.

Who should be held responsible?

The Nuremberg Tribunal stated in its judgement that:

“Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”

According to Polly, corporations are just a piece of paper and it is the people in higher ranks within these corporations who carry responsibility. Under the Responsibility Principle it is quite worrying when CEOs say ‘I didn’t know...’: Polly recently spoke at Shell’s AGM about their use of environmentally damaging extraction on tar sands and one of Shell’s Directors said they did not know about it.

Ecocide is a crime of consequence that arrives out of the pursuit of profit; corporations most often do not intend to cause damage and destruction. Polly’s argument is that Ecocide should be a crime regardless of knowledge or intent. Ecocide should thus be a Strict Liability Law, which means that one will be punished even if there was no knowledge or intent of the crime (for example if a circus tiger escapes from its cage in the middle of the night and kills people, the circus owner, despite being asleep at the time, would be punished). Death by dangerous driving falls under Strict Liability Law. The knowledge that oneself or one’s corporation is under Strict Liability would arguably ensure that higher precautions are taken.

You will be hearing more about Ecocide

Throughout history, Polly notes that fines do not cut it and certainly will not prevent Ecocide, yet incarceration is one of the most powerful disincentives. Ecocide was in fact up for consideration as an International Crime in 1995 and every UN country agreed it should be made an International Crime, bar three. The objection of those three countries meant that the motion was not passed as Law.

Making Ecocide an International Crime under Strict Liability Law will help to ensure the absolute prohibition of a moral wrong through imposing a pre-emptive obligation of avoidance. The idea is that this should create a shift in consciousness and rapid corporate mobilisation, for example to no longer extract from tar sands, due to the risk.

My favourite Polly Higgins quote was:
‘Governments run the casinos where corporations are gambling away.’

This notion informed the front cover image of her new book entitled Eradicating Ecocide.

This is not a blame game, but a recognition that we are all responsible and should view the earth as a living being that deserves respect rather than an innate object to be exploited. Polly is very active in this campaign, engaging in political lobbying at a very high level and recently spoke at the Earth Summit. Polly's fight to make Ecocide a fifth Crime Against Peace continues...