How do you define the crime of Ecocide?

Ecocide is the 5th Crime Against Peace – it is a crime against nature, humanity and future generations. The legal definition of Ecocide submitted to the UN by international barrister and award winning author, Polly Higgins is “the extensive damage, destruction to or loss of ecosystems 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 severely diminished”. ‘Peaceful enjoyment’ is the legal term used in the tort of nuisance, which imposes a legal responsibility on those who cause diminution of or injury to life to such an extent that impact is severe. It is also sometimes referred to in law as a ‘fiduciary duty of care’.

Does Ecocide law mean that the whole of humanity is guilty?

No. Ecocide law, as an international crime, is primarily concerned with persons of ‘superior responsibility’; those who make decisions in their capacity as CEOs, directors, Ministers, Heads of State etc.

Is every ‘hole dug’ an ecocide?

No. The legal parameters to be applied are: size or duration or impact (note, this is a disjunctive test). These are the same parameters set out under the Environmental Modification Convention 1977.

Could it be said that Ecocide law is anti-development?

On the contrary, Ecocide law is pro-development. Yes it prohibits dangerous industrial activity that causes significant harm, but it also places a mandatory duty on governments, business and finance to ensure all industry is non-harmful on a major scale. In other words, by law governments, business and banks shall prioritise e.g. clean energy generation and production, creating many more jobs in the process. Furthermore it creates a level playing field for investors, thereby stimulating economies.

When Ecocide law is put in place, will jobs be lost when big extracting industries have to close?

Not necessarily. A five year transition period ensures that all businesses are given every assistance. Investments will move from fossil fuels to renewables. Millions of jobs will be created.

Will Ecocide law criminalise any business activity which is destructive to the environment?

The test is size or duration or impact (note this is a disjunctive test). These are the same parameters set out under the Environmental Modification Convention 1977.

How does naturally occurring ecocide fit in to Ecocide law? Surely an act of god or something which occurs naturally cannot be criminalised.

An act of god (a legal term used to describe naturally occurring disasters) is not  in itself a crime. What a law of Ecocide does is create a mandatory legal duty of care, and where one occurs (or is about to occur) that causes significant harm, on persons of superior responsibility (in most instances this will be Heads of State). One example is where people of a given territory can no longer govern as a result of catastrophic disaster: under Ecocide law where a Signatory State fails to give assistance, the Head of State can be held to account and prosecuted in a criminal court of law.

Ecocide law is not a law of intent, yet all other international criminal laws have intent as a mental element to be established before the crime is made out. Shouldn’t it be the same?

No. To establish whether ecocide has (or is likely to) occur under Ecocide law is a matter of fact and evidence, not mental state of mind. The mental element (whether there is intent to commit the crime or recklessness) is an aggravating feature for sentencing purposes only. Thus, where ecocide is proven on the facts of the case, where it is also shown that the Defendant also intended to commit ecocide or was reckless in that he/she knew about the possible consequences but proceeded in any event, then that shall be reflected in his/her sentence. Many ecocides are not intended. Furthermore, most international pollution laws are also crimes of strict liability – i.e. does not depend on knowledge or intent to cause harm (e.g. EU/UK/International Pollution)

Surely the creation of civil obligations/a civil duty of care will be enough?

No. Civil remedy does not prohibit, pre-empt or prevent. Individuals of an adversely affected community can only sue (which can take years and be very costly) with limited recourse to justice. With criminal law, the State has a duty to prohibit, pre-empt or prevent the ecocide and prosecute on the citizen’s behalf. Under civil law, the duty of care is very limited. For instance, in the UK (and in many countries) the duty of care is owed  to the company shareholders first and foremost, which for most means to maximise profit. The adverse consequences that can arise are not prohibited, pre-empted or prevented; without criminal law there are very limited powers of enforcement and redress. Civil laws in most instances only hold to account the company only (and not the CEOs). This means that there is a lack of individual accountability. Criminal law however 1. applies to the actions of individuals first and foremost, not the fictional legal personhood and 2. imputes a legal duty on the state to prosecute on behalf of its citizens. Civil litigation (suing) a company has very limited remedy; it is for the individual to take the case and rarely is the corporate veil removed, often preventing individuals and communities best recourse to justice.

Will there be a number of countries that will object to Ecocide law?

This is possible; however, non-State parties to the Rome Statute do not have standing. There is no power of veto and those who are not signatories cannot vote. (e.g. USA). Each member State of the Rome Statute (there are currently 123) has the right to vote to have ecocide included as an international crime. When 83 member States support an amendment to the Rome Statute to include the crime of Ecocide, it becomes law.

Can Ecocide law bind other non-signatory countries?

In certain circumstances international criminal law, once passed, is binding over all States; a person of superior responsibility that is from a State that is not a signatory can still be prosecuted. E.g. General Pinochet was indicted for Crimes Against Humanity in the UK in 1998. Chile was not a signatory country to the Rome Statute; the UK Supreme Court (as now called) ruled that he was to be prosecuted under international criminal law as he had entered a State that was a signatory to the Rome Statute.

How can we prevent Ecocide law from being rendered toothless?

There are a number of ways. Ensuring all documents are in the public domain, to be shared freely; building support from diverse and numerous organisations, individuals and communities; ensuring the intent behind the law remains visible (as set out in the preamble to the Ecocide Act).

Will it not take a long time to get countries to agree to its implementation?

Not necessarily. All nations can pass emergency laws overnight and past experience shows us that when a tipping point is reached, many countries come on board. Take the crime of Genocide – a law that was put in place within 3 years of the end of World War 2. Amending the Rome Statute is a fast-track; it is much easier to amend a document than put in place a Treaty, Convention or Agreement (and which have no ‘legal teeth’).

Could the on-going amendment process of the Crime of Aggression be an obstacle?

Only if it is used politically as a barrier by those who do not want to support Ecocide law. Or, it could be a benefit; we can learn from it and address the hurdles pre-emptively.

Could Ecocide law impact upon cultural or minority rights?

Yes, in a positive way. Ecocide law puts in place the legal duty that upholds cultural and minority rights for their territories, to ensure that corporate activity does not cause ecocide. The State must intervene on the community’s behalf pre-emptively where there is a risk of ecocide.

Could it be too early to introduce a new law?

The longer it is left, the more harm occurs. It is incumbent upon us to act now; the law is required now.

Is it possible that States who do not want Ecocide law could threaten to withdraw from the Rome Statute?

Maybe. Until Ecocide law is tabled, it is impossible to gain-say whether States would threaten to leave on the basis that they wish to continue committing the crime of Ecocide. Remember, all existing States are signatories to uphold ‘the most serious offences known to man’ – to opt-out on the basis of wanting to commit a crime suggests that such a State is not prepared to uphold any international criminal laws.

Is it not the case that making Ecocide a crime internationally could prove to be a challenge?

Indeed – if it was easy it would have remained in place when the Rome Statute was being drafted. Now, nearly two decades later there is a shrinking democratic space. Yes our challenge may be greater, but all the more reason to act.

Will Heads of State endorse Ecocide law that puts them in a position of being held to account?

Ultimately a Head of State (or Minister) who supports accountability at the very top end will support Ecocide law. Moreover, it gives leverage to a government to ensure by law that their governmental policy is strengthened by international law.

Does Ecocide law apply to climate change?

Indirectly yes. Ecocide law, whilst it specifically addresses the source of the harm, can rely on evidence that is climate related to establish the harm. Climate change is often a symptom of Ecocide (eg data to show excess greenhouse emissions from Carbon Major industries).

Is it difficult to determine whom to prosecute/convict?

No. A prosecuting authority shall, as in every criminal case, lay charges against the main defendants – that will be in the case of ecocide the CEOs, Directors and possibly also Ministers and Heads of Financial Institutions if appropriate. The principle of Superior Responsibility applies. To watch and read how this was applied in a test case, see the mock Ecocide Trial (eradicatingecocide.com/the-law/mock-trial/) that took place in the UK Supreme Court in 2011. Also see Polly Higgins second Book, Earth is our Business in which the indictments used in the trial and the Ecocide Act are set out.

What about crimes where the perpetrator is not easily identified?

Most human-caused ecocide defendants are identifiable – most (but not all) are corporate-caused ecocides. Non-human ecocides, such as rising sea-levels, do not lead to a prosecution in the same way; it is the failure to act to give assistance in this instance that can give rise to a prosecution.

Surely Ecocide is caused by intent?

Very rarely. in the case of human caused ecocide, the intent is usually for a company to maximise (or exploit to the fullest) their business for profit. Causing harm is not the intention of corporate activity. For the purposes of Ecocide law, if there is intent (or indirect intent – also called ‘recklessness’ when the defendant knew it would cause harm but proceeded in any event), it is an aggravating feature for purpose of sentence. Thus, for an Ecocide crime to be established, no intent is required to be proven in court unless it is to be relied upon for sentencing purposes.

Is the International Criminal Court (ICC) too fragile to expand its remit?

On the contrary, by including Ecocide law (remember this is missing law that was originally part of the Rome Statute) as an international crime, it demonstrates great strength and the power of the Rule of Law as it was originally meant to be. Now, more than ever, the ICC can demonstrate its capacity to stand strong and take a quantum leap rather than simply struggle to survive.

Can there be a fear of supporting Ecocide law?

Yes. It disrupts and puts in place a law that will, for instance, ensure our economies are service-led rather than ownership-driven; our businesses shall have an overriding legal duty of care rather than putting profit before people and planet; and our governments shall by law be required to switch policies so that use of resources are reduced. To support Ecocide law requires great statesmanship, not compromise.

There’s still genocide, so even with an Ecocide law will we not still have ecocide?

We still have theft, yet we would not think of revoking the law of theft; what is in place for theft is a route to justice. Likewise for genocide. Post World War Two when genocide was named as an international crime, it has become an exception – no longer a normative – and that is the power of law. By criminalising a moral wrong, we prohibit a legal wrong. It provides the legal tools for lawyers to act and speak on behalf of those harmed and society at large no longer deems it acceptable for the crime to take place.

Is it not the case that environmental degradation is caused mainly by diffused sources and billions of small decisions, thereby making it impossible to prosecute?

This is not always the case. Under the international criminal law principle of ‘superior responsibility,’ those few at the top end who make decisions that can cause harm on a widespread, long-term or severe basis are the individuals that are held to account. Ecocide law goes to the source; identifying the few key decision makers who determine the outcome.

What is the best priority for environmental non-governmental organisations to take?

All environmental NGO’s can call in the support of law; it supports their campaigns and gives support to their campaigners who currently face enormous hurdles when it comes to preventing ecocide. Instead of being arrested for speaking out, campaigners shall have the support of law when an injustice occurs.

How will Ecocide law affect businesses that already have effective monitoring systems in place?

Those businesses that are already ensuring their businesses cause no harm shan’t be touched by a law of Ecocide. What Ecocide law does do is ensure that best practise standards are the same for all businesses; previously voluntary or soft provisions are reinforced by Ecocide law and what was once voluntary becomes mandatory enforcement. Businesses that already have effective monitoring systems in place shall have first mover advantage in the market place.

Is there any other time in history where something similar happened?

Yes. Before slavery was criminalised, 300 international agreements were implemented, with very little success, to suppress slavery. Many of these agreements lacked adequate institutions and procedures to ensure that they were enforced. Similarly with apartheid; Resolutions were passed in the United Nations, motions and declarations written and signed, nations publicly condemned and signed a Convention, but none of it stopped apartheid. Finally, apartheid was upheld as an international Crime Against Humanity. The rule of law means very little until and unless those who cause the harm or injustice can be held to account and the harmful activities (and the decision-making that leads to the harm) are outlawed.

Why is an international law of Ecocide so powerful?

As an international crime, it stands to be recognised over and above national laws.  The international Crimes Against Peace are in effect super-laws, that override national law, thereby taking supremacy.

In a nutshell, can you summarise what can be done?

Sure: 1. get at least 1 Head of State to call for an amendment to the Rome Statute to include a law of Ecocide, 2. Open the Rome Statute for signatories to sign up in support. 3. Once 2/3rds of the signatories sign up, a law of Ecocide becomes international law.  Timewise, this can be done by 2020.

What’s at the heart of this law?

It is currently the law for Chief Executive Officers and directors to put profit first. By creating a law of Ecocide corporations are empowered, by legal means, to put people and planet first. By making Ecocide a crime the moral and legal duty to prevent Ecocide trumps the current number one driver of business, namely the economic imperative. This is about giving persons of ‘superior responsibility’ in corporations, government and finance the legal framework in which they can choose whether to commit a crime or to become the drivers of innovation and leadership in a very different direction.

How long will it take to get Ecocide made a Crime Against Peace?

Once an amendment to the Rome Statute has been agreed upon to include Ecocide, what has been proposed is a period of transition (5 years) when corporations will be given all the help they need to become the drivers for change and create the solutions for a green economy, and to help them thrive economically under the new legal and moral framework.

Why was a law of Ecocide removed in 1996 as an international Crime under the Rome Statute?

No reasons were given at the time. What we do know is that some countries had given statements of support for a crime of Ecocide and some countries even went so far as to object when it was withdrawn. All we have are the records of those meetings and the opinions of the UN Rapporteurs at that time who believed it was corporate interests that lobbied. You can read the full summary of those documents in the University of London’s Human Rights Consortium’s Ecocide Project research paper, called Ecocide is the Missing 5th Crime Against Peace.

Could this happen again?

Yes it could. But unlike last time, this time round, you know about this. Everything on this website is under a creative commons license so that you can share and spread this one law, so that this time round the public know what can be done.

How can we make sure that a law of Ecocide is put in place?

By creating a public mandate.

How can we make sure that a law of Ecocide is not relegated to a lesser definition than the one stated here?

By calling for what is required, not accepting something less.

What can I do to help?

Please gift your time, energy and/or money. All are equally valued. For ideas of how you can help have a look at What You Can Do.