in 2010, Higgins proposed an amendment to the Rome Statute — the treaty that established the International Criminal Court. It defined ecocide as “the extensive damage to, destruction of or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been or will be severely diminished.”
Some countries, such as the UK, have national climate change laws that set legally-binding emissions reduction targets. And many have regulations that are meant to protect the environment from corporate activities that could destroy ecosystems.
But none currently have sufficient legislation to allow companies to be taken to court, and treated as criminals, for damaging the environment purely for profit.
As Higgins points out: “We have laws that are protecting dangerous industrial activities, such as fracking, despite the fact that there is an abundance of evidence that it is hugely harmful in terms of carbon emissions, biodiversity loss, and the catastrophic trauma it can cause communities that are impacted by it.”
But if there was an ecocide law, it would allow lawyers and campaigners to argue that such polluting activities were “a potential crime against humanity.”
Watch DeSmog’s interview with Polly Higgins courtesy of Real Media
Shell Knew
That may seem like a lofty ambition, particularly when the charge is being led by a small team from a one-room office in the quaint, pastoral and pleasant surroundings of Stroud. But renewed activism has shown there is a growing appetite to hold to account those responsible for the current and future impacts of climate change.
A recent report from thinktank InfluenceMap showed the world’s five largest listed oil and gas companies spent more than $1 billion lobbying to prevent climate change regulations — all while running public relations campaigns aimed at maintaining public support for climate action.
And the European Parliament last month held a hearing into Exxon’s decades-long support of climate science denial and lobbying, which followed fresh media revelations around Shell’s decades-old and hidden knowledge of the harm its products cause the climate.
Higgins is currently targeting Shell in particular. At the end of last year, her NGO, Mission Lifeforce, went to The Hague to announce that it would be undertaking an initial legal analysis to establish whether Shell could be guilty of ecocide.
She concedes that making that case won’t be easy.
“For us to establish that Shell — and indeed a whole industry — has undertaken a modus operandi that constitutes an inhumane act, there are a number of elements that we have to satisfy legally, one of them being intent.”
While the task will be difficult, Shell’s own actions could help to take it down. Citing the work of De Correspondent, the Climate Accountability Institute, and DeSmog, she says there are “a number of key points over time that suggest that Shell has decided to move forward with their industrial activities in the full knowledge of just how dangerous they are.”
She highlights recently-released documents that show Shell’s own internal scientific analysis revealed the dangers its products posed to the climate in the 1980s. Despite this, the company continued to fund groups that pushed climate science denial and failed to warn shareholders of the risks for decades.
Read DeSmog’s ShellKnew investigation in full
Motivation
It has taken years to get to what Higgins describes as “the first step” of holding these multi-billion dollar corporations to account. So what drives her to keep going — to keep taking on these hugely powerful opponents?
“I grew up in the countryside. I grew up loving the beauty of the wilderness of the west coast of Scotland. I spent my childhood holidaying in Wales. So I think it greatly informed what I’m doing now,” she says.
“It’s just part and parcel of who I am, and I think if you fundamentally care about people and the planet then it’s something you’re just not going to be able to walk away from.”
She’s motivated by protecting the people affected by major polluters, just as much as she’s driven to protect the planet itself. That means facing up to some big political powers as well as Big Oil.
An international ecocide law “is not something that most western world governments will sign off on,” she admits. “This is something that small islands that are most adversely impacted will want to have legal redress for, which kind of plays into the David and Goliath aspect of it.”
“Although it will impact the whole of humanity, those on the frontline tend to be the small island states such as Tuvalu and Vanuatu. And, for them, climate collapse is an existential humanitarian crisis. So they’re seeking ways to significantly abate the primary drivers of climate breakdown.”
Ruth Davey ©
That’s why she’s targeting the International Criminal Court, where each member has one vote, rather than more cumbersome and potentially unjust institutions like the UN Framework Convention on Climate Change, where small countries can find themselves crowded out or bullied. Higgins sees a more permanent law, rather than delicate political solutions, as the best way to give calls for climate action some teeth.
Legacy
A few weeks after we speak, Higgins is diagnosed with aggressive terminal cancer. It makes her efforts to create something more solid — a law, rather than a political solution — seem all the more pertinent.
Pushing for ecocide to be acknowledged as a crime is her way of “recognising that there’s a current absence of proper political leadership on this issue,” and “where political will fails then the law can prevail.”
“Ultimately all of this is preventable and that’s really what ecocide law is about.”
“It is fundamentally unjust to sit back and watch the destruction occurring,” she says.
Higgins is very good at explaining why an ecocide law could be effective, in theory. But there remain few mainstream campaign groups or political parties that back her cause. The UK’s Green Party in 2012 passed a resolution giving “wholehearted support for an international law of ecocide”. No other party has yet followed the Greens’ lead.
Higgins says that’s in part because hers is a movement that doesn’t wholly rely on public awareness “because it’s not the number one issue of concern,” she says.
Instead, she has worked on “discerning who are my allies in this, and how to take this forward working with them behind the scenes.”
That doesn’t mean public support for the idea isn’t useful — “it does help to have public support without a doubt,” she acknowledges — it just may not be necessary. If the International Criminal Court agrees with her, her job is done.
That’s why her focus is on forging a new tool for campaigners — an ecocide law — rather than courting them.
As she says: “Where do you go when NGO campaigns have failed? Where do you go when countless petitions to governments get you nowhere?”
Her work has laid the groundwork for a new answer to those questions: For decades, people have taken to the streets. Thanks to Higgins’ work, perhaps one day, they will be able to take the prime suspects in climate atrocities to the criminal courts.Main image credit: Rupert Pessl ©
Polly Higgins is an attorney/barrister who has devoted her life to creating an international crime of ecocide. This means serious damage to, or destruction of, the natural world and the Earth’s systems. It would make the people who commission it – such as chief executives and government ministers – criminally liable for the harm they do to others, while creating a legal duty of care for life on Earth.
I believe it would change everything. It would radically shift the balance of power, forcing anyone contemplating large-scale vandalism to ask themselves: “Will I end up in the international criminal court for this?” It could make the difference between a habitable and an uninhabitable planet.
There are no effective safeguards preventing a few powerful people, companies or states from wreaking havoc for the sake of profit or power. Though their actions may lead to the death of millions, they know they can’t be touched. Their impunity, as they engage in potential mass murder, reveals a gaping hole in international law.
Hundreds of dead dolphins are washing up on French beaches, often with horrendous injuries. Why? Because trawler companies fishing for sea bass are failing to take basic precautions to stop them being caught. The dolphins either drown in the nets or, when pulled up wounded, are stabbed to death (to make them sink) by fishermen. For a marginal increase in profits, the trawler firms could be driving common dolphins towards regional extinction.
In West Papua, which is illegally occupied by Indonesia, the nonprofit news organisation Mongabay reports that an international consortium intends, without the consent of indigenous peoples, to clear an area the size of Somerset of stunning rainforest to plant oil palm. Its Tanah Merah project is ripping a hole in an enormous expanse of pristine forest, swarming with species found nowhere else. According to Mongabay, if the scheme continues, it will produce as much greenhouse gas every year as the state of Virginia.
When governments collaborate (as in all these cases they do), how can such atrocities be prevented? Citizens can pursue civil suits, if they can find the money and the time, but the worst a company will face is a fine or compensation payments. None of its executives are prosecuted, though they may profit enormously from murderous destruction. They can continue their assaults on the living planet.
Cases against governments, such as the successful one against the Dutch state seeking a legal order to speed up its reduction of greenhouse gases, may be more productive, but only when national (or European) law permits, and when the government is prepared to abide by it. Otherwise, at international summits, where perpetrators share platforms with states that should hold them to account, we ask them nicely not to slaughter our children. These crimes against humanity should not be matters for negotiation but for prosecution.
Until 1996, drafts of the Rome statute, which lists international crimes against humanity, included the crime of ecocide. But it was dropped at a late stage at the behest of three states: the UK, France and the Netherlands. Ecocide looked like a lost cause until Higgins took it up 10 years ago.
She gave up her job and sold her house to finance this campaign on behalf of all of us. She has drafted model laws to show what the crime of ecocide would look like, published two books on the subject and, often against furious opposition, presented her proposals at international meetings. The Earth Protectors group she founded seeks to crowdfund the campaign. Recently she has been working with the Republic of Vanuatu with a view to tabling an amendment to the Rome statute, introducing the missing law.
She has started something that will not end here. It could, with our support, do for all life on Earth what the criminalisation of genocide has done for vulnerable minorities: provide protection where none existed before. Let it become her legacy.
**
Ecocide Crime
Ecocide is the extensive loss or damage or destruction of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been or will be severely diminished.
Currently it is not an international crime, climate justice is predominantly a “soft law”. Where the United Nations has failed to address the wider issue of justice through annual negotiations, the International Criminal Court has the ability to prosecute, if there is law. Serious international crime can be and is prosecuted in many countries throughout the world, under the principle of universal jurisdiction. The amendment to the Rome Statute for Ecocide Law, protects from serious harm both people and planet from corporate and climate activity.
Dangerous industrial activities and climate disasters are the ultimate responsibility of the very people who have the power to prevent the serious harm, at a State and corporate level. Ecocide law is a legal route that will significantly abate climate chaos, protect millions of lives and prevent serious harm by imposing State and corporate responsibility for dangerous industrial and climate activity. Ecocide law has a history spanning nearly 50 years, find a summary of the history here.
Criminalising ecocide at an international level requires one or more State Parties to the Rome Statute of the International Criminal Court to propose the inclusion of ecocide to the existing “most serious crimes of concern”. You can read the process that will be required to implement ecocide as an international crime of the Rome Statute here. Existing laws, including international declarations, treaties and protocols, do not impose a universal legal requirement to uphold State and corporate responsibility for serious harm. In response to this, a draft law of Ecocide was submitted by Polly Higgins (need link here) in April 2010 into the United Nations Law Commission.
The Model Law – proposed amendment to the Rome Statute
THE CRIME
Ecocide crime is:
- acts or omissions committed in times of peace or conflict by any senior person within the course of State, corporate or any other entity’s activity which cause, contribute to, or may be expected to cause or contribute to serious ecological, climate or cultural loss or damage to or destruction of ecosystem(s) of a given territory(ies), such that peaceful enjoyment by the inhabitants has been or will be severely diminished.
- To establish seriousness, impact(s) must be widespread, long-term or severe.
- For the purposes of paragraph 1:
(a) ’climate loss or damage to or destruction of’ means impact(s) of one or more of the following occurrences, unrestricted by State or jurisdictional boundaries: (i) rising sea-levels, (ii) hurricanes, typhoons or cyclones, (iii) earthquakes, (iv) other climate occurrences;
(b) ’ecosystems’ means means a biological community of interdependent inhabitants and their physical environment;
(c) ’territory(ies)’ means one or more of the following habitats, unrestricted by State or jurisdictional boundaries: (i) terrestrial, (ii) fresh-water, marine or high seas, (iii) atmosphere, (iv) other natural habitats;
(d) ‘peaceful enjoyment’ means peace, health and cultural integrity;
(e) ‘inhabitants’ means indigenous occupants and/or settled communities of a territory consisting of one or more of the following: (i) humans, (ii) animals, fish, birds or insects, (iii) plant species, (iv) other living organisms.
4. For the purposes of paragraph 1: the Paris Agreement of 4 November 2016 shall be considered to be established premise for prior knowledge by State, corporate or any other entity’s senior person, or any other person of superior responsibility.
THE ELEMENTS
- The perpetrator’s acts or omissions caused, contributed to, or may be expected to cause or contribute to serious ecological, climate or cultural loss or damage to, or destruction of ecosystem(s) of a given territory(ies).
- The perpetrator’s activity has or will severely diminish peaceful enjoyment by the inhabitants.
- The perpetrator had knowledge or ought to have had knowledge of the likelihood of ecological, climate or cultural harm.
- The perpetrator was a senior person within the course of State, corporate or any other entity’s activity in times of peace or conflict.
What ECOCIDE LAW will achieve
LAW OF ECOCIDE
• Prevents the risk of and/or actual extensive damage to, destruction of or loss of ecosystem(s);
• prohibits decisions that result in extensive damage to or destruction of or loss of ecosystem(s);
• pre-empts decision-making of a political, financial and business nature that may lead to significant harm.
DUTY OF CARE
Superior responsibility provision: an international and transboundary duty of care on any person or persons who exercises a position of superior responsibility, without exemption, in either private or public capacity to prevent the risk of and/or actual extensive damage to or destruction of or loss of ecosystem(s).
Business provision: an international and transboundary duty of care on CEOs and directors of a business and/or any person who exercises rights over a given territory to ensure ecocide does not occur.
Political provision: an international and transboundary duty of care on governmental actors, specifically Heads of State and Ministers with environment/energy/climate change portfolios, to ensure ecocide does not occur and to provide emergency assistance before, during and after to other territories at risk or adversely affected by ecocide.
Financial provision: an international and transboundary duty of care on financiers, investors, CEOs and directors of any banking and investment institutions who exercises a position of superior responsibility, to ensure ecocide is not financed.
TRUSTEESHIP
A law of Ecocide also imputes a legal duty of care in the event of natural catastrophe (e.g. rising sea-levels, droughts, earthquakes). The United Nations Trusteeship Council’s purpose (as one of the founding pillars of the UN Charter) was to assist territories that were unable to self-govern; it is proposed that the Trusteeship Council re-open it’s doors and be put to use again to assist non-self governing territories that have been or are at risk of being harmed by Ecocide[5]. It can be used to assist territories suffering from Climate ecocide as well as ecological ecocide and cultural ecocide. By re-opening the UN Trusteeship Council chamber (set in abeyance since 1994), Member States that are facing ecocide, and thus can no longer self-govern, have a ready-made forum in which to appeal to and receive aid. For instance, nations seeking a humanitarian response to flooding and rising sea-levels could then seek the assistance of the international community under the auspices of the Trusteeship Council, to ensure that nearby nations are supported as they give safe harbour to frontline States that have or about to suffer climate ecocide.
ROME STATUTE
The Rome Statute of the International Criminal Court is the governing document which sets out the existing international Crimes. The international crimes currently provided for under the Rome Statute do not however address:
• the protection of ecology (non-human inhabitants of a territory);
• the protection of indigenous and cultural rights (for example when there is destruction of a traditional way of life); or
• loss, damage and destruction that occurs in peace time.
Ecocide crime shall address all of this and was included in earlier drafts, until it was removed in 1996. You can read about ecocide law history here and download the The Human Rights Consortium research paper “Ecocide is the missing 5th Crime Against Peace“.[5]
The Process
There are currently 124 nation States that are signatories to the Rome Statute. Amendments to the Rome Statute of the International Criminal Court must be proposed, adopted, and ratified in accordance with Articles 121 and 122 of the Statute (you can download core ICC texts here). Any State Party to the Statute can propose an amendment. Adoption of the proposed amendment is by a two-thirds majority vote in either a meeting of the Assembly of States Parties or a review conference called by the Assembly. An amendment comes into force for all States Parties one year after it is ratified by seven-eighths of the States Parties.
Any amendment to articles 5, 6, 7, or 8 of the Statute (the crimes) only enters into force for States Parties that have ratified the amendment. A State Party which ratifies an amendment to Articles 5, 6, 7, or 8 is subject to that amendment one year after ratifying it, regardless of how many other States Parties have also ratified it. (Article 121(5)) For an Article 5, 6, 7, or 8 amendment, the Statute itself is amended after the amendment comes into force for the first State Party to ratify it. (Article 122(2))
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[1] Polly Higgins, Eradicating Ecocide: laws and governance to prevent the destruction of our planet, 2010 (2nd Ed 2015), pp. 61- 92. See also her second book, Earth is our Business, 2011.
[2] Preamble, Rome Statute.
[3] See iecc-tpie.org, who are calling for an International Criminal Court for the Environment.
[4] See icecoalition.com and see also the International Court for the Environment Foundation.
[5] ‘Ecocide is the missing 5th Crime Against Peace’ Summary Document setting out the history of Ecocide law. First published in 2012 and updated in July 2013. See: SAS Ecocide Project
[6] See Chapter 6, Polly Higgins, Eradicating Ecocide: laws and governance to prevent the destruction of our planet, 2010 (2nd Ed 2015), pp. 72 – 92.
