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ICC Urged to Accept ‘Ecocide’ as an International Crime

Ido Liven

AARHUS, Denmark, Jun 15 2011 (IPS) - Images of the immense, dark stain of oil covering the waters of the Gulf of Mexico made their way across the globe last year as one of the largest oil spills in history unfolded. Other images – of the ‘Great Pacific Garbage Patch’, a gigantic pile of litter floating in the North Pacific Ocean; of countless felled trees in the Amazon; of tar sands in Canada – have gained much fewer headlines, but are likely to remain as monuments to the price tag of wanton human appetites.

Seeking to avert similar calamities, and demanding justice globally, London-based lawyer and activist Polly Higgins in April 2010 submitted to the U.N. a legal proposal to add widespread environmental wreckage – dubbed ‘ecocide’ – as a fifth crime against peace. The International Criminal Court (ICC) was set up in 2002 to hear cases involving four crimes against peace: genocide, war crimes, crimes of aggression, and crimes against humanity.

“Existing [domestic] environmental legislation doesn’t fit the purpose,” Higgins says. “We have enormous damage and destruction happening on a daily basis and it’s escalating, it’s not decreasing.”

Higgins’ proposal defines ecocide as “the extensive destruction, damage to 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 the territory has been severely diminished.”

Higgins, who spent her childhood holidays in Scotland’s Highlands, and her adulthood years as a barrister in London courts, said on one occasion that she “saw the planet, in effect, as a client that really was in need of a good lawyer.”

The proposed crime of ecocide alongside the existing crimes against peace is described by Higgins as “an expansion of our cycle of concern. No longer is it just human to human, but it’s now human to the wider Earth community”.

She points to a vicious cycle that revolves around humanity’s relations with nature’s treasures. Intensive resource exploitation, she explains, results in degradation or loss of ecosystems – that is ecocide – and correspondingly in resource depletion that triggers conflict, at times armed conflict. In turn, war inflicts large-scale damage to the environment as well.

Mass environmental damage during wartime is already outlawed. An article under ‘War Crimes’, within the Rome Statute that established the ICC, prohibits ‘widespread long-term and severe damage to the natural environment’ under certain conditions.

The 1977 United Nations Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques that was put in place following the Vietnam War also classifies such destruction as unlawful.

Higgins’ proposal wishes to extend these legal liabilities to peacetime.

Although there are several ways for a legal case to be initiated and brought before the ICC, Higgins believes that prosecution of ecocide would most likely result from information submitted by NGOs and local communities to the ICC Prosecutor.

Seeking to hold those responsible for the damage accountable, the proposed crime of ecocide would impose the corresponding responsibility on individuals. Additionally, restoration of the damage could replace payment of fines – a common penalty in many countries’ environmental legislation.

Many corporations aware of a financial sanction, Higgins argues, choose to simply factor the fines in as an external cost.

“There’s certainly a gap in international law in that it’s very difficult to see how [it] reaches particularly private sector bad behaviour,” says David Hunter, associate professor of law at American University Washington College of Law. He points particularly to the vulnerability of developing countries that endure significant environmental problems, such as toxic waste disposal, but lack a robust legal system to tackle them.

“As far as the need for something like this, and an expansion of international criminal law to cover the most egregious environmental issues, I think it’s a good idea,” Hunter says. “Whether there’s actually a support for it, or how long it would take to build that support, is a different question.”

Hunter also points out the fact that the existing crimes against peace are essentially aimed at deliberate acts. Environmental destruction, as described by Higgins’ ecocide proposal, is often a result of negligence. Moreover, these actions – as in the case of the tar sands extraction in Alberta, Canada, that Higgins considers as a classic example of ecocide – might in fact be domestically lawful.

“I just don’t think that we’re going to label a country’s decision to develop its natural resources as violating international law anytime soon,” says Hunter.

And indeed, some see the proposed ecocide law as yet another green provocation seeking to “destroy prosperity by criminalising necessary economic activities,” says Wesley J. Smith, a senior fellow at the Discovery Institute’s Center on Human Exceptionalism.

In an opinion article Smith published at the neo-conservative ‘Weekly Standard’ in May 2010, he argues that “equating resource extraction and/or pollution with genocide trivializes true evils such as the slaughter in Rwanda, the killing fields of Cambodia, the gulags, and the death camps, while elevating undefined environmental systems to the moral status of human populations”.

Higgins says she was expecting a lot more opposition than what she has received. “In a way I’m going under the radar,” she says with a smile.

To be approved, the ecocide proposal would need at least two-thirds of the votes at the U.N., and would require to be adopted by all member governments.

But Higgins’ proposal goes beyond aiming to deter potentially destructive activities or to punish their perpetrators. “What we do is create amnesty,” she says. “We give a transition period where we help those companies transition into being the clean, green solutions. Because we need big corporate activity to turn around the sinking ship very fast, and they have the skill-base, they have the workers.”

This is really about coming to the table without blame, without judgment, Higgins explains. “Because actually we’re all complicit. The energy coming into my house, as much as I’d have wanted to come from renewables, doesn’t. If I drive a car I’m using fossil fuels.” And, in fact, one of her own forebears, Patillo Higgins, made one of the most important oil discoveries in the U.S. in the beginning of the twentieth century.