The Crime of Ecocide

by Bryan Walker on September 8, 2011

I was active in Amnesty International at the time when the International Criminal Court was being debated and we lobbied hard for its establishment. In view of all the obstacles it seemed a minor miracle that it finally gained enough member state support to get under way. It is by no means the universally acknowledged authority that it should be, but it is functioning and playing an important role in the modern world. I was therefore interested to see reported on the NZ Herald website the proposal of a visiting lecturer that crimes against nature, or “ecocide”, should be recognised as the fifth crime the court should be given responsibility for, along with genocide, war crimes, crimes against humanity and crimes of aggression which make up its current areas of jurisdiction.

Polly Higgins is the British environmental lawyer who actively promotes the concept. She is currently on a lecture tour of New Zealand and Australia, where she will be a speaker at the Brisbane Writers’ Festival. Her book Eradicating Ecocide was published last year. As reported in the Herald Higgins argued corporations should have a duty of care, or the same responsibility as individuals to behave in their daily lives – without recklessness or harm.

“We can be locked up for two years for doing a runner from a taxi. At the moment we’re seeing corporations doing a runner every day and it’s being normalised by law because we’re putting profit first.”

She proposed three categories for criminal charges against individuals such as chief executives and energy ministers: unintentional ecocide, ecoslaughter and ecocide. The respective sentences would be equivalent to death caused by dangerous driving, manslaughter and murder.

The definition of ecocide she offered was the mass damage, destruction or loss of ecosystems of a given territory, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished.

She suggested the size, duration and impact of ecocide could be measured by the international laws applied during wartime. Ecocide might be invoked if the size of the affected area exceeded 200km in length, had an impact on ecosystems for more than three months and had a severe impact on human or natural resources.

I liked her mention of the duty of care, which is a concept frequently in my mind when I contemplate the recklessness of our determination to expand the exploitation of fossil fuels in New Zealand. It was consistent with this that she should suggest lignite mining in Southland and the proposed deepwater drilling in the Great South Basin might qualify as New Zealand examples of ecocide because they would create enormous greenhouse gas emissions.

There’s more information on the ecocide concept on her website.  And there is a good deal on YouTube of which this interview is an example.

I won’t elaborate on or necessarily support the detail of her proposals, but the general concept of international criminal law being invoked to protect the global environment seems to me to be worth upholding. At very least it’s a proposition which deserves an answer. People may scoff at the very idea that so widespread and acceptable a practice as the exploitation of fossil fuels should come anywhere near being considered criminal activity. But last year’s BP Deepwater Horizon oil spill apparently increased interest in Higgins’ proposals. In that case the environmental damage was observable and immediate. Greenhouse gas emissions are more difficult to pin down in terms of direct consequences. And we are all complicit. It would admittedly be difficult to establish a boundary, but surely not impossible. Anyway I’m glad to see someone raising the issue.

We desperately need to develop a conscience over continued fossil fuel exploitation. There have been times in the human past when we took for granted practices which subsequently came to be recognised as unconscionable and were made illegal. Slavery is the obvious example. The abolition of the slave trade in Britain and the emancipation of slaves in the US were not easily won battles; indeed the latter contributed to the enormous death toll of the civil war.  I don’t find it fanciful to compare the battle to reduce greenhouse gas emissions in the 21st century to those earlier conflicts. The same protestations of economic necessity are made, the same downplaying of the effects on the human victims. One hopes there will be no blood shed over climate change mitigation, but the possibility of climate wars can’t be ruled out. All the more reason for it to be made clear in international law that the heedless destruction of the environment cannot continue to be treated as lawful activity and that big corporations and the politicians who abet them must be held to account if they offend.

Higgins is not against corporations, or anti-profit, “but this is what I’m suggesting to turn around this sinking ship very fast.” It’s a valuable advocacy.

{ 5 comments… read them below or add one }

weisshb September 9, 2011 at 10:12 am

Bryan,

I always find your choice of HotTopics interesting and your insights and clarity of thought among the best of climate bloggers; bar none across the globe. Your thoughts on Polly Higgins work is no exception. But, I also think we need to balance concerns focused on the all too easily identified fossil fuel corporations and “for-profit” governments with the recognition that it is also individual demand that is an integral part of the problems we face. Jeff Rubin recently made this point when talking about the White House Keystone protests. He said:, “Considering the vast majority of emissions from gasoline come not with its extraction and processing but when you turn on your car’s ignition and start burning the oil in your engine, maybe we should be more concerned about the number of cars are on the road as opposed to the source of their fuel.

So yes, I too think that the concept of international criminal law being used to protect the global environment can be part of the solution. But let us not for one second think that a world court going after big organizations and governments will solve our fossil fuel addiction any more than going after the global drug cartels have ended endemic drug use. The demand side is just as large a part of the problem as the supply side. Until we find and implement successful interventions to reduce and eliminate fossil fuel use at the individual level, we will likely only find new multinational concerns and government officials replacing whichever one may have been brought to some semblance of international justice. Like the drug trade, it simply remains too lucrative a business.

The consciousness raising you urge, therefore, must range from the corporate board rooms and the government halls of power all the way down to the parent who drives their kids to school and sports, the person who commutes 20K in a lone SUV to work, the teenager who seeks a driver’s license, the businessperson hopping on a long haul flight and the millions of other people who every day ignore the consequences of their energy use on the planet and our children’s future.

The comparison of the battle to reduce greenhouse gas emissions to slavery has some ethical echoes. But when the battle lines were drawn during the American Civil war, one side did not own slaves. Today, however, we almost all own or benefit from our local and global polluting energy slaves. Thus, like all harmful addictions, the real battle, I believe, is not with the “other” side supplying what we crave, but within ourselves.

Bryan Walker September 9, 2011 at 1:45 pm

Thanks for the kind opening remarks. I don’t disagree that there’s a battle within ourselves, and I certainly tried very hard to cut down my own energy use once I realised how serious global warming was, with surprising (to me) success. But if renewable energy is as bountiful a source as many serious analysts think and if energy efficiency is lifted to the level it can so easily be taken then individual motivation may not need to figure quite as large – and given the difficulty of recruiting a whole population in such a determination that may be a relief. If carbon is properly priced I’m quite prepared to believe that there will be flood of innovation which will enable renewable energy in many forms (perhaps for a time with some nuclear), employed along with much improved efficiency, to meet reasonable human requirements. But only governments can price carbon and destroy the illusion that fossil fuel energy is cheap. And corporations should be urging them to do so, not taking advantage of the cheap profits made possible by externalising most of the real costs. That’s why my main focus is on government and corporates, though not to the exclusion of individual awareness and action. Both battles are real.

sailrick September 9, 2011 at 1:36 pm

I think where the fossil fuel industry is criminal, is in their agenda to muddy the discussion on AGW and distort it for public consumption.

Tom Bennion September 9, 2011 at 6:37 pm

I heard Polly talk in Wellington. At heart, her concept is quite radical. Forget carbon taxes or cap and trade. It would mean that companies extracting and selling fossil fuels would have to cease work immediately, because they would risk proceedings against them for ecocide.

I like the fact that this cuts to the heart of our current dilemma, and places the responsibility on the suppliers of our current drug of choice, so to speak.

The application of the concept to alternative energy uses would be interesting also. For example, the definition of ecocide means few companies would take the risk of developing nuclear power on any significant scale. I asked Polly after the talk if ecocide essentially meant no nuclear power, and she agreed.

It would also prevent large dam projects. The concept essentially says that sources of energy for large populations can no longer be derived from high risk ventures. Sources have to be localised or passive or very low risk eg wind turbines, solar.

That change in underlying approach is refreshing and has a long term feel to it. You might even call it sustainable.

Thomas September 10, 2011 at 11:38 am

I think we need to make the switch to pathway towards sustainability as a people, together, and guided and led by our governments.
What we need is a strong popular movement that gives our leadership the legitimacy to lead this change. At the moment we are divided as a people between a variety of camps, thanks to the orchestration of denial by the culprits we can all name, and thanks to an unhealthy attitude of many parts of the population to not accept part of the responsibility.
We need a new dawn of the age of the responsible citizen and elect the leadership we need to walk the path towards a better future. We need a national and global consensus building framework that transcends the pathetic efforts made so far by the various GW commissions and protocols.

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