Femke Wijdekop explains why 2016 could be a pivotal year in making Ecocide a crime under international law.
The duty to care for our common home, New Internationalist (2016)
01.01.16. Spanish African palm oil corporation, Empresa Reforestadora de Palma de Petén SA (RESPA) lost their appeal against the first ruling of its kind.
In a second major win for Indigenous-led environmental movements – and other mobilizations in defense of nature — an appellate court in Guatemala has upheld the unprecedented charge of ecocide against Spanish African palm oil corporation, Empresa Reforestadora de Palma de Petén SA – otherwise known as REPSA – denying a recent appeal that sought to overturn it.
The company has been accused of criminally negligent activity resulting in massive die-offs of fish and other wildlife in and around the La Pasión River, disrupting the lives of tens of thousands of Guatemalans living in the region.
Judge Carla Hernandez, of the Peten Environmental Crimes Court, ordered RESPA to suspend production activity for six months in September 2015 while the charges were fully investigated; though recent reports suggest that RESPA has yet to fully, if remotely, comply.
IC reported on the burgeoning trend of ecocide via pollution linked to palm oil production in Guatemala’s waterways in 2014. In June of 2015, the situation grew inescapably dire as mounting counts of fish die-offs spiraled from counts in the hundreds in 2014, to the millions in 2015. In response to the exploding ecological crisis, activists mobilized all over the world; and as with the case in 2014, at least one life was taken in a counter-attack orchestrated – allegedly – by the corporate industrial complex of ‘big palma’.
On September 18, 2015, Indigenous professor, human rights defender and vocal RESPA critic, Rigoberto Lima Choc, was killed outside of the courthouse following Judge Hernandez’s ruling for a six month suspension of RESPA operations in the region. Choc was the first activist to document the extensive socio-environmental damage occurring at the hands of REPSA, and took the charge of ecocide directly to the authorities. His murder followed the abduction and release of three other human rights defenders, fellow members of the Comisión por la Defensa de la Vida y la Naturaleza (Commission for the Defense of Live and Nature). During a brief period of contact with their families in the midst of the kidnapping, the Comisión activists relayed that they were being held in conjunction with the ceasing of RESPA’s operations.
With momentum accumulating from official complaints filed against palm oil activity in 2013, and 2014, the RESPA case was spearheaded by this collaboration of local groups operating as the Comisión por la Defensa de la Vida y la Naturaleza. Together, they filed a lawsuit against RESPA on June 11, 2015. Maya Q’eqchi community leader, Saul Paau – who has also been vocal about the larger schema of such catastrophes being related to, and unintended consequences of, the Central American Free Trade (CAFTA) – gave a statement to the Guatemala Indymedia Center, saying:
We can call the case a crime against humanity, because not only were various species of the river dying, but the river is also part of our historical culture, or our territory. We get our food from it, and the contamination and the fish deaths today have violated the food security of all of us.
The United Nations has expressed its own concern over the environmental impact of RESPA operations in Guatemala, and confirmed how their criminal negligence has impacted over 20 different species of fish, and over 20 more different species of reptiles, birds, and mammals. Guatemalan U.N. coordinator, Valerie Julliand, explained how water pollution impacts myriad facets of community and individual life, including such core foundational activities as eating, drinking, and basic hygiene. She further described the “psychological impact” such destruction had on local families and how this compounded the situation for those that were “mourning the loss of the river” – the brutal and sudden loss of their personal and community lifeline. Julliand cited U.N. statistics regarding how every ton of palm oil produced around 2.5 to 3.74 tons of industrial waste.
Rosalito Barrios, of the San Carlos de Guatemala Chemical Sciences Department, documented that pollution from RESPA’s industrial activity formed a 70-centimeter layer of toxins covering the entire surface of the river, effectively suffocating any life therein. This unfathomable mass killing is foundational to, and demonstrative of, the willful or negligent crime against humanity – and crime against peace – conceived of as ‘ecocide’.
A Dutch documentary about Polly Higgins and Ecocide Crime is now out. Baltasar Garzón, the Spanish prosecutor who indicted General Pinochet in 1998 for Crimes Against Humanity is one of the lawyers featured speaking in support of Ecocide crime.
At the opening of COP21, Ecuadorean president Rafael Correa called for the creation of an International Court of Environmental Justice to punish environmental crimes. Lead envoy for Nicuragua has refused to sign up to the ‘intended nationally determined contribution‘ [what this is: a voluntary UN pact that all countries in a position to do so are asked to submit ‘intended nationally determined contributions‘ (INDCs) to international efforts to hold warming to 2C], as it amounts to business as usual.
Elsewhere Prince Charles also wants law to step in. Publically supporting investors taking polluting firms to court if and when states ignore their responsibilities and fail to take action, Prince Charles highlighted the deficiency of politics and the neccessity of the rule of law. Company directors are at risk of litigation in the event they mislead investors and the public about climate change and shall find themselves in court for having contributed to anthropogenic climate change.
“I dare you to be great – go, on stand up and speak out. We get to determine what the future is. Let’s engage in the big questions of our time, not the ones we already know the answers to. Ask questions – big ones that make a difference. And once you find the answer, let’s make it happen”.
I Dare You To Be Great explores Polly Higgins’ story as an Earth lawyer as she discovers how we can create a legal duty of care for the Earth – a law of Ecocide. We have a choice: break our chains and create a greater freedom, or remain enslaved to an era of Ecocide. Polly invites in a conversation of a different kind; firing up a neural pathway of exploration that takes us into the unknown yet expands our vision of what our legacy could be. Sharing her insights, she sheds a light on what is possible – a vision far greater and more beautiful than we have dared before.
Greatness is a quest: one that speaks to all of us. By daring to be great – rediscovering how to use the creativity, passion and power that lie within us – we can find freedom and inspiration to break the cycles of harm playing out in our world. This is the message of a new and inspiring book by prizewinning author Polly Higgins.
I Dare You To Be Great, Clink Street, London & New York, 2014 £6.99.
You can buy online here.
” It is my honour to be the Arne Naess Professor this year, here in Olso, following in the footsteps of a great man who paved the way for me being here today.” For full speech, please download the transcript Inauguration Speech Oslo Uni (11.10.13) of Dr Polly Higgins speech at the inauguration of her Honorary Professorship at Oslo University, on the 11th of October 2013.
I write to you from Vienna, a city I know from my student days when I lived here. Now, 24 years later, I have been invited back to take the stage at the world famous EARTHtalks, hosted by NeonGreen Network at the Hofburg Palace.
The press took up my call for Austria to lead for the amendment to the Rome Statute – Kleine Zeitung, Der Standard, Biorama and Kurier as well as Austrian radio reported the support for a global law of Ecocide by fellow speaker Greenpeace’s CEO of Central and Eastern Europe, Alexander Egit, and prominent figurehead in the Austrian environmental movement Freda Meissner-Blau.
A motion has already been tabled in the Austrian Government to build cross-party support for an amendment to the Rome Statute to include a law of Ecocide and Austria’s Green Party have gone public with their support.
Speaking in the Hofburg Palace has historical significance. In 1815 world leaders responded to the call to end the era of slavery. Many people throughout the world had at that time said ‘Enough – this must stop.’ In 1815 the final document to end the slave trade was signed at the historic Vienna Congress; in 2015 a new Vienna Congress could be held to herald end the era of Ecocide.
It took a special kind of leadership back then – it took bold, moral and courageous leadership – and my call is to Austria to take the key step that is needed to end Ecocide. Austria can be great once again – this time to end the era of Ecocide.
Austria was one of the countries who engaged in an international law of Ecocide first time round, when it was included in the earlier drafts of the Rome Statute. In fact, Austria was the country that spoke out to say that Ecocide was rarely a crime of intent. This is correct in law; most Ecocide is caused as a result of unintended consequences, often because profit is put before people and planet. You can read more about the history of a law of Ecocide and why it was not included, despite many countries officially supporting it, here.
You can watch Polly’s EARTHtalks Keynote Speech here:
A groundbreaking discovery; the crime of Ecocide was for decades included by the UN as the fifth Crime Against Peace.
Imagine my surprise when a journalist called me to ask for my comment on the news that a law of Ecocide had been considered to be an international crime over 15 years ago. All he had was one document that referred to 3 countries who had objected to it being included as Crime Against Peace. This one document took Dr Damian Short of the School of Advanced Legal Studies Human Rights Consortium at University of London on a paper trail with a team of his students. They unearthed written documentation and evidence of the history of Ecocide Law spanning the past 40 years.
Today we now have a paper trail that takes us back to 1972. The call to make Ecocide an international crime was, we discovered, nothing new – over 7,000 people took to the streets in Stockholm in 1972 to demand that Ecocide be a crime. It was the time of the Vietnam War and world leaders had met in Stockholm to resolve environmental issues at an international level for the first time. At the same time, The People’s Forum brought together some of the top experts of the day to discuss Ecocide. A draft Ecocide Convention was submitted into the UN in 1973, a direct outcome of the Stockholm conference.
Fast forward a decade; 1985 saw the flame of the Law of Ecocide burn brightly again. Most significantly was the draft Code of Crimes Against the Peace and Security of Mankind (precursor to the Rome Statute) which included Ecocide. For a further 11 years the United Nations partook in concerted debate, discussion and research. What happened next is set out in the research paper Ecocide is the Missing 5th Crime Against Peace.
Launched 19th July 2012 by The Human Rights Consortium at the School of Advanced Studies, University of London, The Ecocide Project will continue to unravel the question as to why the Crime of Ecocide law was shelved. The report draws attention to the preamble of the draft Ecocide Convention, where there is the explicit recognition that Ecocide is not always a crime of intent – and that Ecocide is caused in both times of war and peace.
These are words that have just as much relevance today as they did when they were written in the draft Ecocide Convention in 1973:
“Man has consciously and unconsciously inflicted irreparable damage to the environment in times of war and peace.“
Like the name of the research paper suggests – Ecocide is the missing 5th Crime Against Peace – when we outlaw mass damage and destruction, the missing 5th crime is put back in its rightful place, as an international Crime Against Peace.
One of the team, Louise Kulbicki, reports back on what happened at the Earth Summit, Rio+20 and the World Congress on Law, Justice and Governance for Environmental Sustainability, June 2012:
Here in Rio, a green-lit “Christo Redentor” – Christ the Redeemer – watches over the city, serving as an important reminder that we are in desperate need of new leadership. Today the moral imperative is to stop killing our Earth. Indeed, the whole of humanity is in jeopardy if we don’t step up to the challenge and really change the trajectory of where we are headed.
The Lawyers leading the way?
In the past many visionaries and leaders have been lawyers – think of Gandhi and Nelson Mandela. So when I arrived at the World Congress on Justice, Law and Governance for Environmental Sustainability (a pre-Rio conference) I was full of hope that just maybe we might be able to come up with some concrete legal solutions (i.e making Ecocide a crime), to halt humanity in its current trajectory of destroying the environment.
The World Congress is a closed-door invitation-only event. It brought together some of the top legal minds in the world; Attorney-Generals, Chief Prosecutors, Auditors-General, Chief Justices, Senior Judges and other legal practitioners to discuss the role of the law in achieving sustainable development and to create a document to be taken to world leaders at the Earth Summit.
The event opened on the 17th at the impressive Tribunal de Justica, Rio De Janeiro. Achim Steiner, the UN’s Environment Programme (UNEP) Executive Director, gave an inspiring speech whilst Ricardo Lorenzetti, the Supreme Court Chief Justice of Argentina, made clear the importance of the judiciary in ensuring governments do not renege on their promises. We then took a shuttle bus 100 km out of Rio to the Portabello Resort in Mangaratiba; where surrounded by luscious green mountains and a palm tree-lined private beach, it was quite easy to forget the urgency of addressing the critical issues humanity and the Earth are facing.
In Mangaratiba the first day opened with Bakary Kante, UNEP’s Director of the Division of Environmental Conventions. He is a clear leader with a strong moral radar. Kante emphasised that the outcome of the World Congress “must mark environmental law history” and that “we cannot have an elephant give birth to a mouse”. The following days were long, and heated discussions took place relating to the nexus between human rights and environmental rights, and the need to identify transnational environmental crimes. In these sessions I emphasised the need to create a crime of Ecocide which led to fruitful discussions; it was evident that there was much support for the idea. I also took up Bakary Kante’s call for participants to put in writing any substantial proposals to be included in the final outcome document. It was then up to fate. Whilst a select few disappeared behind closed doors to determine the content of the final document, we were left with Bobby McFerrin’s classic tune being strummed on a guitar with the hopeful words ringing in our ears, “Don’t worry, be happy.”
The plenary reconvened 2 hours behind schedule, and the draft final Outcome document was read out. One of the positive outcomes of the document was that it stressed the need for UNEP to be transformed to allow it to advance the global law making agenda – but where were the laws suggested? It failed to take into account a number of proposals – including any reference to the law of Ecocide, or even the need to develop international environmental crimes. I later found out that the proposal to include making Ecocide a crime had been opposed strongly by one country, which one was not disclosed. The Latin American countries had reached a separate agreement which seemed stronger referencing environmental rights and an international court for the environment.
People wanted to speak. The steering committee rejected the call for comments until one participant stood up and spoke out about the importance for us to be able to comment. At which point things heated up. Others started to speak out too; a number of lawyers raised a number of issues highlighting their discontent with the Outcome document. I stood up and pointed to the footnote in the text which read: “ this declaration attempts to capture the wide range of views of participants….it does not represent a formally negotiated outcome nor does it necessarily represent…consensus on all issues.” My proposal to call on our world leaders to make Ecocide a crime should have been included, or at the very least the emphasis on developing environmental crimes – which had been discussed extensively and was supported by a number of lawyers present.
When the plenary finally came to a close, it was unclear whether these comments would be taken into consideration. The final session was held in the Supreme Court. We all wanted to hear the outcome of the final document and the translation of the Portuguese Latin American agreement. But it never came. The Outcome document was not presented, nor was any part of it read out; instead one of the steering committee announced that it had been adopted by consensus. What happened next left me questioning the whole system: for the next ten minutes a Brazilian soprano singer sang. Her voice soared, but what of the outcome? The situation was quite bizarre.
A green future?
Bakary Kante spoke in the closing session that the World Congress marked a point in history where we were all starting on a journey to achieving something beautiful. Given the urgency of the problems we are facing, I just hope the journey is a short one.