FUTURE
PLANET | LAW
Ecocide: Should killing nature be a crime?
By Sophie
Yeo
6th
November 2020
https://www.bbc.com/future/article/20201105-what-is-ecocide
From the Pope to Greta Thunberg, there are growing
calls for the crime of “ecocide” to be recognised in international criminal law
– but could such a law ever work?
I
In December
2019, at the International Criminal Court in the Hague, Vanuatu’s ambassador to
the European Union made a radical suggestion: make the destruction of the
environment a crime.
Vanuatu is
a small island state in the South Pacific, a nation severely threatened by
rising sea levels. Climate change is an imminent and existential crisis in the
country, yet the actions that have caused rising temperatures – such as burning
fossil fuels – have almost entirely taken place elsewhere, to serve other
nations, with the blessing of state governments.
Small
island states like Vanuatu have long tried to persuade large powerful nations
to voluntarily reduce their emissions, but change has been slow – so ambassador
John Licht suggested that it might be time to change the law itself. An
amendment to a treaty known as the Rome Statute, which established the
International Criminal Court, could criminalise acts that amount to ecocide, he
said, arguing “this radical idea merits serious discussion”.
Ecocide –
which literally means “killing the environment” – is an idea that seems both a
highly radical and, campaigners claim, a reasonable one. The theory is that no
one should go unpunished for destroying the natural world. Campaigners believe
the crime should come under the jurisdiction of the International Criminal
Court, which can currently prosecute just four crimes: genocide, crimes against
humanity, war crimes and crimes of aggression.
If something’s a crime, we place it below a moral red
line – Jojo Mehta
While the
International Criminal Court can already prosecute for environmental crimes,
this is only possible within the context of these four crimes – it does not
place any legal restrictions on legal harms that occur during times of peace.
While individual countries have their own rules and regulations to prevent such
harms, ecocide campaigners argue that mass environmental destruction will
continue until a global law is in place.
This
wouldn’t be the fluffy and arguably toothless rulemaking that often emerges
from international processes – such as the Paris Agreement on climate change,
where countries set their own emissions reductions targets. By adding a fifth
crime of ecocide to the Rome Statute of the International Criminal Court, the
perpetrators of environmental destruction would suddenly be liable to arrest,
prosecution and imprisonment.
But it
would also help to create a cultural shift in how the world perceives acts of
harm towards nature, says Jojo Mehta, co-founder of the Stop Ecocide campaign.
“If
something’s a crime, we place it below a moral red line. At the moment, you can
still go to the government and get a permit to frack or mine or drill for oil,
whereas you can’t just get a permit to kill people, because it’s criminal,” she
says. “Once you set that parameter in place, you shift the cultural mindset as
well as the legal reality.”
Campaigners
believe the crime of ecocide should only apply to the most serious harms,
encompassing activities like oil spills, deep-sea mining, industrial livestock
farming and tar sand extraction. In 2010, Polly Higgins, a British barrister,
defined ecocide as “extensive damage... to such an extent that peaceful
enjoyment by the inhabitants of that territory has been or will be severely
diminished.”
The mother of all battles is international: to ensure
that this term is enshrined in international law – Emmanuel Macron
Last year,
Higgins died aged 50, after being diagnosed with cancer. It was a blow for the
ecocide movement – she had been its leading legal light and fiercest advocate,
selling her house and giving up her high-paying job in order to dedicate her life
to the campaign. Despite her passing, that the movement now appears to be
gaining momentum. After decades of existing at the radical fringes of the
environmental movement, ecocide is now being discussed by parliamentarians and
leaders across the world.
Among them
is Emmanuel Macron, the president of France, who has become one of ecocide’s
highest profile supporters. Earlier this year, more than 99% of the French
citizens’ assembly, a group of 150 people selected by lot to guide the
country’s climate policy, voted to make ecocide a crime. That prompted Macron
to announce that the government would consult with legal experts on how to
incorporate it into French law. But he went further. “The mother of all battles
is international: to ensure that this term is enshrined in international law so
that leaders… are accountable before the International Criminal Court,” he
responded to the assembly.
Elsewhere
in Europe, Belgium’s two Green parties have introduced an ecocide bill that
proposes addressing the issue at both a national and international level – an
idea that also has support among Swedish parliamentarians. “We have all the
conventions, we have all the goals. But the beautiful visions must go from
paper into action,” said Rebecka Le Moine, the Swedish MP who submitted a
motion to her national parliament. “If these actions should be anything more
than goodwill or activism, it must become law.”
Pope
Francis has also called for ecocide to be recognised as a crime by the
international community, and Greta Thunberg has backed the cause too, donating
€100,000 (£90,000) in personal prize winnings to the Stop Ecocide Foundation.
The
International Criminal Court has itself placed increasing emphasis on
prosecuting environmental crimes within the limitations of its existing
jurisdiction. A 2016 policy paper on case selection highlighted the court’s
inclination to prosecute crimes involving illegal natural resource
exploitation, land grabbing and environmental damage. While this doesn’t change
the status quo, it “could be regarded as an important step towards the
establishment of a crime of ecocide under international law”, according to one
paper.
Even so,
the concept of ecocide has its limitations. David Whyte, professor of
socio-legal studies at the University of Liverpool and author of a book called
Ecocide, warned that an international law would not be a silver bullet that
eradicates environmental destruction. Corporations cannot be prosecuted under international
criminal law, which only applies to individuals, Whyte points out – and
bringing down a CEO may not actually rein in the business itself.
“It’s
really important to change our language and the way we think about what’s
harming the planet – we should push through this crime of ecocide – but it’s
not going to change anything unless, at the same time, we change the model of
corporate capitalism,” he says.
While there
is still a long way to go before ecocide could be recognised as an
international crime, the movement continues to gather pace, says Rachel
Killean, a senior lecturer in law at Queen’s University Belfast, who has
recently written about alternative ways in which the International Criminal
Court could address environmental harms.
“You can
never say never – and it’s gaining momentum that we maybe would never have
imagined previously – but the challenges are still so significant. First of
all, you have political resistance. I think the chance of an assembly of state
parties agreeing to an additional crime is unlikely, particularly one that
might curb economic expansion,” she says.
An
international law on ecocide would also be difficult from a legal perspective,
adds Killean – lawyers would have to ensure that there were sufficient grounds
for prosecution.
“If you think about all the parts of the
criminal prosecution, you need to have an individual – so who’s the individual
that’s responsible for ecocide? There needs to be intention – so how do you prove
intention for the destruction of a territory? All these different things that
build up a criminal trial become really complicated when you’re thinking about
ecocide.”
Campaigners
like Mehta understand these difficulties. Her campaign group, Stop Ecocide, is
currently pulling together a panel of top international lawyers to write a
“clear and legally robust” definition of ecocide that countries could propose
at the International Criminal Court.
Once that’s
in place, the next step would be for a country to back it at The Hague. While
Vanuatu has raised the issue, it did not submit a formal proposal to amend the
Rome Statute, and whether there will be a government brave enough to do so
remains an open question – leading on such an issue requires a certain level of
diplomatic clout. Mehta believes that such a move is becoming more likely due
to the growing number of governments that have expressed their theoretical
support. “There’s safety in numbers,” she says. “It’s less of a political
risk.”
But the journey
wouldn’t end there. Once a proposal is submitted, it would have to be adopted
by a two-thirds majority vote – in practice, that means it needs the support of
82 countries. No country has veto power, and all nations have the same voting
power regardless of size or wealth. It’s a process that Mehta envisages taking
anywhere between three and seven years.
Whether or
not the process happens so quickly, or if it even happens at all, ecocide has
proved to be a powerful idea. It has crystallised a concept that often gets
lost in discussions of policy and technology: that many see that there is a
moral red line when it comes to destroying the environment. And it is a
reminder that it is not a victimless act: when forests burn and oceans rise,
humans are suffering around the world. Moreover, the perpetrators of these acts
are not blameless. For campaigners like Mehta, criminalising ecocide is a way
to call time on the destruction of the Earth’s ecosystems and those who live in
them.
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