Potential groundbreaking case paves the way

The Global Legal Action Network (‘GLAN’) plan to bring a potentially ground-breaking climate change civil case to the European Court of Human Rights (ECtHR). Suing all 47 States of the Council of Europe, GLAN is acting behalf of six Portuguese children adversely affected by forest fires. In June of this year their district burned as a result of the worst forest fires in their country’s history. The fires, which have been linked to climate change, claimed the lives of over 60 people.

This case is potentially groundbreaking in a number of respects. If it succeeds in passing the first hurdle – a preliminary ruling allowing it to proceed on the basis of exceptional circumstances – the core issues come down to causation, adverse impact and collective responsibility.

Currently there is no overriding mandatory duty of care to prevent serious harm, or to pre-empt it. States have yet to be found accountable for some of the biggest impacts caused by acts or omissions. This case paves the way for recognition of missing ecocide law where persons of senior State responsibility can be personally held to account.

The objective is to secure on behalf of these applicants a ruling that the States party to the European Convention on Human Rights (ECHR): (a) must significantly strengthen their emissions cutting policies, and (b) must commit to keeping most of their existing fossil fuel reserves in the ground, in order to minimise the threats posed to their welfare by climate change in the future.

The Relevant Principles of ECHR Law

The ECHR imposes a positive obligation on States to take “reasonably available measures” to prevent interferences with human rights, or to mitigate those interferences where it is not possible to prevent them completely. A range of human rights of people alive in Europe today are threatened by climate change, including what many see as the most fundamental, the right to life (Article 2).

GLAN assert that the ECHR imposes obligations in relation to climate change which are far more onerous than those contained in the Paris Agreement. The latter, while setting an ambitious collective goal of keeping global warming to well below 2°C, imposes no meaningful obligations on States to implement measures consistent with achieving that goal. The case law of the ECtHR, however, emphasises that the measures which States adopt to protect human rights must be effective.

Now, this is where it gets interesting, if you’ve got this far –

In terms of procedure, the general rule under the Convention is that an applicant must ‘exhaust domestic remedies’ (i.e. take a case through the domestic courts) before taking a case to the ECHR. An exception exists where the remedies in question are not practically available. GLAN’s case will argue that it would not be practically possible for a group of applicants to launch climate change cases in the domestic courts of all of the 47 States party to the Convention and that this therefore justifies the application of the exception to the rule. In other words, it is the ambitious scale of this case which allows to take a case directly to the ECtHR.

The scale of the case also helps in proving ‘causation‘ i.e. that the inadequacy of the measures taken (or not taken) by States in relation to climate change can be causally linked to threats it poses. While this is a difficult argument to establish where only one State is concerned, that is not the case when dealing with 47, who collectively are responsible for approximately one-fifth of global greenhouse gas emissions.

Evidence will cover a range of issues including the impact which climate change is projected to have in Europe this century, the reserves of fossil fuels held by each Convention State and the emissions cuts projected to result from their existing policies and commitments.

From third tier to second tier governance

As noted, the 47 States that have ratified the ECHR are collectively responsible for nearly one fifth of global greenhouse gas emissions. They also hold a similar proportion of the world’s known fossil fuel reserves. Decisions of the European Court of Human Rights are, therefore, binding on these States so a decision of the kind they are seeking would clearly be of major significance. Legally-speaking, were such a decision to be handed down, it would be as if the 47 States party to the ECHR had entered into a climate change treaty with far greater ‘bite’ than the Paris Agreement. If this case succeeds, the outcome shall shift governance up the governance pyramid, from soft law to the civil law level, paving the way for the top level; criminal law. The second tier of governance can provide remedy for climate and ecosystem destruction, but this is primarily only by way of imposing fines. You can read more about how the governance pyramid operates here.

Why ecocide crimes are crimes of recklessness

It used to be that ecocide was a crime of consequence per se, but now this is no longer the case.

Every crime is defined by its elements – what lawyers call Mens Rea and Actus Reus (the state of mind and the act).  Since the Paris Agreement, we have a situation where the Mens Rea in ecocide crime is that of recklessness, i.e disregarding available information and proceeding/or failing to prevent, regardless of knowledge.  (We know that in very few cases of ecocide is there an actual intent to harm). However no decision-maker can now claim ignorance of the potential harm resulting from dangerous industrial activity or failure to prevent it. This will be a key factor in international acceptance of ecocide as a crime. What is significant here is this: the nexus between corporate and State is well established. Bodies of evidence, such as the Carbon Majors research and the signing of the Paris Agreement, mean that corporations and States can no longer declare lack of knowledge when it comes to industrial and climate impacts.

Polly discusses recklessness at De Balie’s Freedom Lecture in Amsterdam. You can watch the full event here.

ICC widens remit

ICC widens remit to include environmental destruction cases under existing crimes.

Guardian: In change of focus, Hague court will prosecute government and individuals for environmental crimes such as landgrabs.

Environmental destruction and landgrabs could lead to governments and individuals being prosecuted for crimes against humanity by the international criminal court following a decision to expand its remit.

The UN-backed court, which sits in The Hague, has mostly ruled on cases of genocide and war crimes since it was set up in 2002. It has been criticised for its reluctance to investigate major environmental and cultural crimes, which often happen in peacetime.

In a change of focus, the ICC said on Thursday it would also prioritise crimes that result in the “destruction of the environment”, “exploitation of natural resources” and the “illegal dispossession” of land. It also included an explicit reference to land-grabbing.

The court, which is funded by governments and is regarded as the court of last resort, said it would now take many crimes that have been traditionally under-prosecuted into consideration.

The ICC is not formally extending its jurisdiction, but the court said it would assess existing offences, such as crimes against humanity, in a broader context.

The ICC’s policy paper on case selection and prioritisation declares: “The office [of the prosecutor] will give particular consideration to prosecuting Rome statute crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land.”

Land-grabbing has become increasingly common worldwide, with national and local governments allocating private companies tens of millions of hectares of land in the past 10 years.

The anti-corruption campaigners Global Witness say this has led to many forced evictions, the cultural genocide of indigenous peoples, malnutrition and environmental destruction.

“Land-grabbing is no less harmful than war in terms of negative impacts on civilians”, said Alice Harrison, an adviser at Global Witness. “Today’s announcement should send a warning shot to company executives and investors that the environment is no longer their playground.

“The terrible impacts of land-grabbing and environmental destruction have been acknowledged at the highest level of criminal justice, and private sector actors could now be put on trial for their role in illegally seizing land, flattening rainforests or poisoning water sources.”

International lawyers said broadening the priority cases to include land-grabbing would recognise that mass human rights violations committed during peacetime and in the name of profit could be just as serious as traditional war crimes.

“It will not make land-grabbing per se a crime, but mass forcible evictions that results from land-grabbing may end up being tried as a crime against humanity,” said Richard Rogers, a partner in the international criminal law firm Global Diligence.

Rogers has lodged a case with the ICC on behalf of 10 Cambodians alleging that the country’s ruling elite, including its government and military, has perpetuated mass rights violations since 2002 in pursuit of wealth and power by grabbing land and forcibly evicting up to 350,000 people.

“Cambodia is a perfect example for this new ICC focus. It fits in to the new criteria,” he said.

He predicted it could have a bearing on the way business is done in certain countries. “Companies who want to invest in [some] places risk being complicit in crimes against humanity. Tackling land-grabbing will also help address some of the causes of climate change, since deforestation is very often a result of land-grabbing.”

The new ICC focus could also open the door to prosecutions over climate change, Rogers said, because a large percentage of CO2 emissions had been caused by deforestation as a result of illegal land-grabbing.

The ICC can take action if the crime happens in any of the 139 countries that have signed up to the Rome statute, if the perpetrator originates from one of these countries, or if the UN security council refers a case to it. Crimes must have taken place after the Rome statue came into force on 1 July 2002.

Reinhold Gallmetzer, a member of the ICC working group who drew up the policy document, said: “We are exercising our jurisdiction by looking at the broader context in which crimes are committed. We are extending the focus to include Rome statute crimes already in our jurisdiction.

“Forcible transfer [of people] can already be a crime against humanity, so if it is committed by land-grabbing – whether as a result or a precursor – it can be included.”

The ICC paper also lists other crimes, such as arms trafficking, human trafficking, terrorism and financial crimes, in which it intends to provide more help to individual states to carry out national prosecutions.

IN THE NEWS:

The Guardian: ICC widens remit to include environmental crimes

New York Times: International Court to Prosecute International Crimes in Major Shift

ICC Press Release: ICC Prosecutor, Fatou Bensouda, publishes comprehensive Policy Paper on Case Selection and Prioritisation

 ICC Policy paper on case selection and prioritisation

 

GUATEMALAN COURT UPHOLDS RULING ON ECOCIDE

GUATEMALAN COURT UPHOLDS RULING ON ECOCIDEGuatemala Ecocide ruling

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’.

Read full articles here and here.

Advocate for the Earth


The documentary, Advocate for the Earth, follows Polly’s journey, taking Ecocide law forward. Baltasar Garzón, Spanish jurist and prosecutor (indictment of General Pinochet in 1998 for Crimes Against Humanity) is one of the lawyers featured speaking in support of Ecocide crime.

You can watch Advocate for the Earth online (or click above) and you can read the Dutch paper Volkskrant’s interview here.

President Correa calls for eco-crimes

RafaelCorrea.162409At 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.

 

Hofburg Palace, Vienna: EARTHtalks

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 StatuteKleine 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.

You can watch my talk at the Hofburg Palace here (and in German here).

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:

EARTHtalks 2013 Polly Higgins