What is ecocide?
Ecocide is loss, damage or destruction of ecosystem(s) of a given territory(ies)… such that peaceful enjoyment by the inhabitants has been or will be severely diminished
– definition submitted by Polly Higgins to the UN Law Commission in 2010
The term ‘ecocide’ has been around since the 1970s when it was first recorded at the Conference on War and National Responsibility in Washington. From the 1970s onwards many academics and legal scholars argued for the criminalisation of ecocide and debated the elements required for such an international crime. For an in depth account on the development of the concept of ecocide, please click below.
Ecocide is a crime against the Earth itself, not just against humans. It covers the direct damage caused to the Earth’s land, sea and river systems, the flora and fauna within the affected ecosystems, as well the resultant impact on the climate.
Ecocide has adverse impacts on many levels. The harm is not always just environmental; it can be cultural and emotional as well and affect communities at a deep level, especially when a way of life is profoundly and/or practically connected to the affected ecosystem.
Why do we need an ecocide law?
Put simply, there is no international legally binding duty of care towards the Earth.
This means that companies can destroy environments and communities in the pursuit of profit without fear of prosecution. Existing law puts the interest of the shareholder first – companies are under a duty to maximise profit. Individual countries may have local, national environmental laws and regulations but these are regularly contravened, often with the consent of those in government who issue permits to pollute. Sometimes we even honour the individuals responsible for environmental damage for their contributions to the economy.
There is no genuinely effective check on the destruction wrought by industry. We have, in effect, normalised environmental harm.
There are examples of massive scale environmental destruction by industry all over the world:
A law making ecocide a crime, bringing with it the prospect of the senior executives and complicit government ministers facing criminal proceedings, will be a strong deterrent against ecocidal practices and will be the catalyst for finding new, sustainable ways of operating.
We are inextricably linked to and part of the Earth and we cannot survive without it being in good health. A law against ecocide will create a legal duty of care – and indeed a legal form of life insurance policy – not only for the environment but for communities, for future generations and for the wider life of our Earth.
The major polluters
Our inability to halt dangerous industrial activity is the hidden story behind climate change. The so-called Carbon Major industries exacerbate/drive climate change – to such a degree that the lives and livelihoods of millions of people, particularly in the low-lying Pacific Island States, are under threat.
An important piece of research published in 2017 by CDP which monitors global environmental data, shows that just 100 companies are responsible for over 70% of industrial greenhouse gas emissions since 1988.
More recently, the Climate Accountability Institute in the US has identified the 20 fossil fuel companies who together have produced 35% of global energy-related carbon dioxide and methane. These 20 companies include well-known investor-owned firms such as BP. Shell, Exxon and Chevron, as well as state-owned companies such as the Saudi Aranco and the Russian Gazprom.
The legal position
Soft law: On an international basis, there are agreements, such as the Paris Agreement, the UN Global Compact and the UN’s Development Sustainable Goals which attempt to regulate polluting emissions. The problem is that they do not prevent serious harm for the simple reason that are voluntary and cannot be enforced. We have recently seen the United States announce its intention to withdraw from the Paris Agreement.
On a national basis, individual countries have their own laws, civil and criminal, regulating environmental damage, but these too are limited in the protection they provide.
Civil law needs to be instigated by those individuals or communities affected by the environmental destruction; these individuals and communities are very often poor and without the necessary resources to take such action against the wealthy and powerful polluters. Even if these corporations are ultimately forced to pay compensation, they can continue their ecocidal business practices. Indeed, such compensation payments are seen simply as a cost of doing business.
National criminal law is where the state comes into play and its basic function is to prevent harm. There are penalties for certain environmental crimes but often these are directed at companies rather than individuals as they are easier targets. Criminal law in developing countries is often less robust and less able to protect the environment.
This is why we need to establish a new INTERNATIONAL crime of ecocide to sit alongside the other international atrocity crimes.
What would an ecocide law achieve?
Existing international declarations, treaties and protocols do not impose an international legally enforceable requirement to uphold nation state and corporate responsibility for ecocide. The impact of making ecocide an international crime will therefore be significant. It will prevent dangerous industrial activity that causes environmental destruction and exacerbates climate change.
Making ecocide a crime will not only act as a brake on the companies themselves by making the senior executives personally criminally responsible; it will discourage government ministers issuing permits for it, banks from lending on it, investors from backing it and insurers from underwriting it. In fact, the whole infrastructure which silently underpins and sanctions acts of large scale environmental destruction will be seriously weakened.
How can an international crime of ecocide be created?
The process is actually very simple.
The 1998 Rome Statute, which established the International Criminal Court, needs to be amended to include a crime of ecocide to sit alongside the other four international crimes: genocide, crimes against humanity, war crimes, and crimes of aggression.
Amendment of the Rome Statute requires the head of one signatory state to propose the inclusion of ecocide as a crime. Any member state, however small, can propose an amendment and, once three months have passed, it needs a simple majority of members present and voting at the next meeting to take it up. Once taken up, it cannot be vetoed. With a two thirds majority the amendment can be adopted and added to the statute. There are currently 122 state signatories so 82 would need to vote for it to be adopted. States can then ratify the amendment, which comes into force in that state a year after ratification is submitted.
States which do not ratify are nonetheless significantly affected by the adopted amendment because their nationals can no longer operate ecocidal activities in countries which have ratified and, under universal jurisdiction principles, may be arrested in any ratifying country. Click below for more details about amending the Rome Statute.
The missing law
Ecocide was actually originally intended to sit alongside the crimes of genocide, crimes against humanity and war crimes when the International Criminal Court was set up in the 1990s. Crimes of aggression were introduced as a later amendment.
It had been proposed by the Swedish Prime Minister Olof Palme, at the United Nations and was under discussion in the 1990s but was removed in a closed doors meeting in 1996. Papers have since emerged that show the US, UK, France and the Netherlands lobbied to have ecocide removed.
For an in depth account on the development of the concept of ecocide, please click below.