Ecocide: a crime against peaceOnly by prosecuting mass environmental destruction alongside genocide and war crimes will we protect the Earth, argues lawyer Polly Higgins.
What made you take up this cause?
I have a background representing big transnational corporations. I am not anti-corporate or anti-profit but I came to wonder why we have so normalized mass damage and destruction through creating profit. In wartime it is a crime, but in peacetime you can do it every day.
I saw that the law had caused this. In corporate law it is the legal duty of the CEO and directors to put the interests of shareholders first, and that means maximizing profits without looking to the consequences. It seemed to me we had good people stuck in a system that no longer works.
I think of an Austrian company that five years ago was contemplating green energy but is now looking at fracking. They are not bad guys. That is just the direction the law makes them go. Let’s give them the legislative framework to go in the other direction. So in March 2010 I proposed to the UN that ecocide should be legally defined.
How do you define ecocide?
Ecocide is extensive damage to, destruction of or loss of ecosystems to such an extent that peaceful enjoyment by the inhabitants of that territory has been or will be severely diminished. There are two different types: ecocide as a result of human activity and as a result of natural disasters. And it refers to severe impacts not just on humans but all inhabitants, natural resources and ecosystems.
The most obvious example is the Amazon. Existing environmental laws do not address it because they are premised on fines. A corporation illegally logging factors in the cost of getting caught and, if need be, closes the company and opens the next day under a different name. Local communities don’t have the financial and legal wherewithal to sue. Treaties and conventions don’t work either as they don’t have legal teeth. They are just statements of jolly good intent.
How would a law of ecocide make a difference?
This is about imputing a legal duty of care to those known in international criminal law as being in a ‘position of superior responsibility’ like CEOS, heads of banks and ministers of state, as opposed to environmental law which largely attaches itself to corporations.
This is very important because a company can’t go to prison. So no individual takes responsibility. With international criminal law, a person in a position of superior responsibility has to answer for their decisions in a court of law. They would be tried first and foremost in their own countries. The International Criminal Court would step in as a last resort.
Absolutely, the law is just a tool. International criminal law supersedes contract law and all other law. And it trumps sovereignty. Nobody has an opt-out of genocide.
So it creates a pre-emptive mechanism. It is a powerful disincentive but also a powerful legislative framework for business. Environmental impact assessments end up being not just risk assessments but consequence assessments that someone has to answer for. It also gives investment risk signals. And once the insurance industry sees a law of ecocide coming, it will start factoring it into its decisions. Then you have decision-making that starts from the premise of ‘first do no harm’.
Am I going to start Arctic drilling which could end up being subject to criminal prosecution? I may have problems raising finance and getting insurance, government subsidies may move to cleaner sectors, my shareholders will be concerned.
How would the law deal with destruction that has already taken place?
I’ve proposed that it is not retrospective. We’re not trying to hound those complicit in ecocides of the past. If we end up with enormous numbers of prosecutions we will be defeating the purpose, which is to pave the way to the green economy for transnational corporations. We have to give business the opportunity to adapt.
What must happen now for ecocide to become a crime against peace?
We need an amendment to the Rome Statute of the International Criminal Court, which deals with environmental destruction ‘manifestly excessive to wartime activities’. That was put in place after the use of chemical agents white, blue and orange in Vietnam. I’m proposing that we apply the same test in peacetime.
I was asked by 26 governments to put together a concept paper which resulted in a timeline between now and 2020. An amendment to the Rome Statute could be in place by 2014 or early 2015. All it takes is one head of state to call for that amendment and a two-thirds majority. We are not looking for a whole new document, unlike a treaty where you’re trying to get agreement from 194 countries.
On the contrary, for them to remain market leaders they will have to adhere to it, because it will fundamentally shift the global market dynamics overnight.
The key distinction is that, unlike genocide, ecocide is largely not a crime of intent. It is mostly profit-driven. The law has caused this problem and the law must fix it, and it must be at an international level, so there are level playing fields. If it is done piecemeal it will damage economies that do act; transnational corporations will register elsewhere overnight.
Can this really happen? What support do you have?
A lot of countries are now engaging with us in a big way, off the record. We need a public mandate, and that is why we have started the Wish 2020 campaign to get businesses, industries and NGOs to support this.
It needs business leaders to start speaking out. Governments tell me they need ‘Charles Grants’. Grant was a director of the British East India Company who backed the abolition of slavery despite the huge profits to be made from the trade. His stand enabled other business leaders to speak out, which prompted the government to act.
Crucially, Grant also asked for a transition period, subsidies and assistance to help business move away from slavery without adversely impacting their value. And that was precisely what happened. We also need a transition period for businesses to downsize from dangerous industrial activity and upsize in the alternative direction. And I believe that is doable between now and 2020.
We have done it with the abolition of slavery, with genocide and apartheid, and it is now time to do it with ecocide. I believe civilization is ready. It is a mountain to climb but it is a small mountain compared with climate negotiations which is a mountain that we will never climb.