Why we need a law against ecocide

From claiming lives to threatening the country’s native wildlife population, the Australian bushfires have had an immense impact on the drought-stricken country

Australia is guilty of ecocide.

More than one billion animals have been killed in the multi-state bushfires, and that toll is expected to climb sharply. The scale of the loss of life is unprecedented and beyond comprehension.

However, we humans are so selfish and narrow-minded that animal lives merely form a footnote to our calculations about losses from bushfires and other disasters. We tally the human lives cut short and the property damage, but animal life comes a distant third in our evaluations.

A photo from the front page of The Times last week, featuring a kangaroo in front of a burning house. More than a billion animals are feared to have been killed in the recent bushfires.
One billion dead animals are a tragedy for each individual animal: the lives lost and the incomprehensible suffering. Each of those animals felt pain and fear,  exactly as humans do,  and died in terror. The fact that we don’t really care about that, and barely pause to contemplate it, says much about us as a species.

However, although the loss of animal life is shocking, it is neither surprising nor was it unforeseeable.

Australia is a climate-change denier and has failed utterly to act to mitigate the destructive effects of human activity. It has ignored – and continues to ignore – the scientific consensus on what action is required.

It is the world’s second-largest coal exporter and its main political parties support continuing to extract and export coal. Politicians keep focusing on the “cost” of combating climate change, while closing their eyes to the far greater toll that is being paid for failing to act. Australian MP Craig Kelly appeared on British television this week and continued to deny the link between climate change and the Australian bushfires.

Now is the time to change that.

The late British barrister Polly Higgins led a decade-long campaign to make ecocide a crime. In a submission to the United Nations Law Commission in 2010, she explained ecocide as being “the loss, damage or destruction of ecosystem(s) of a given territory … such that peaceful enjoyment by the inhabitants has been or will be severely diminished.”

Ecocide covers the direct damage done to sea, land, flora and fauna, as well as the cascading impact on the world’s climate. The term was first used in the 1970s at the Conference on War and National Responsibility in Washington, and academics and lawyers have in the decades since then argued for the criminalisation of ecocide.

Ecocide would sit alongside the four other international crimes – genocide, crimes against humanity, war crimes, and crimes of aggression – which are set out in the 1998 Rome Statute that established the International Criminal Court.

Female koala Anwen recovers in Port Macquarie Koala Hospital from burns suffered in bushfires in November.

Higgins’ website, www.ecocidelaw.com, explains that there is currently no international, legally binding duty of care towards the Earth. This means that companies can destroy environments and communities for profit without fear of prosecution.

The website states that existing laws put shareholders first, meaning that the laws of individual nations are regularly contravened in the pursuit of financial returns – often with the consent of governments that issue permits to pollute.

Higgins’ vision was that a crime of ecocide would act as both a brake on companies by making senior executives personally criminally responsible, and discourage government ministers from facilitating harmful activity and make banks and investors less likely to finance it. Like senior executives, ministers would face the prospect of criminal proceedings.

Ecological Defence Integrity was founded by Higgins and Jojo Mehta in June 2017 to lobby for the creation of a crime of ecocide under the jurisdiction of the International Criminal Court. It launched the public campaign Stop Ecocide in November 2017.

Barrister and journalist Catriona MacLennan says it is time to enact laws against ecocide.
Barrister and journalist Catriona MacLennan says it is time to enact laws against ecocide. Cat MacLennan is a barrister and founder of Animal Agenda Aotearoa
Four elements would comprise the crime of ecocide:

* A perpetrator’s acts or omissions causing ecocide

* The actions severely diminishing peace

* The perpetrator having knowledge of actual or possible outcomes; and

* The perpetrator being a senior official.

Ecocide law would also provide legal backing to the campaigns of indigenous communities in many nations to protect their lands.

Ecocide is already recognised as a crime in 10 nations, including the Russian Federation, Ukraine, Vietnam and Belarus.

Scientists have warned humans about climate change for decades, and we have ignored those warnings. As recently as last month, Australia and the United States worked with other nations at COP25 to block stronger action on climate change.

A crime of ecocide would prohibit harmful activity and force governments, businesses and financiers to prioritise clean generation and production.

New Zealand is included in that imperative. We are watching on in horror at the Australian bushfires, but our own action to combat climate change is woefully inadequate. SOURCE

Bolsonaro and ecocide in the Amazon – some questions answered

fire eye to eye.jpg
We’ve received a lot of panicked emails over the last few days from many people asking similar questions… so here are a few answers.

Can the adoption of ecocide law be speeded up?

An amendment to the Rome Statute of the International Court must be proposed by a Head of State more than 3 months prior to the Assembly of States Parties in December making next year (2020) the earliest possible opportunity to do this. We are well aware that the time is ripe.

Can you prosecute Bolsonaro at the International Criminal Court (ICC)?

We can’t, for a number of reasons.

Firstly, (unlike in civil litigation) individuals and organisations don’t prosecute crimes, states do – or in this case the international community via the ICC, which must have a detailed communication submitted for preliminary examination in order to commence the process. This is not something that can be put together overnight.

Secondly, although we absolutely support the broadening of existing law to include ecological and climate concerns, we are not a practising law firm but a legally focussed non-profit campaign, working to practically progress the adoption of future law. Our mission is ultimately a diplomatic one and we do not take on specific cases or represent clients in court.

The Amazon situation highlights that ecocide is MISSING from the list of prosecutable offences at the ICC. It’s why our organisation exists, and why the ICC is at present powerless (with some wartime exceptions) to directly prosecute ecological destruction, however massive.

But what about Crimes Against Humanity?

We are aware that there are possibilities for including environmental crimes under some existing provisions of Crimes Against Humanity and we are conducting studies to examine this, but we are not in an evidential position to apply it to Bolsonaro ourselves (see also previous answer). Others may be. MORE


France’s Macron says real ‘ecocide’ going on in Amazon

How to Defend the Planet in Law

In the face of a growing raft of evidence that increasingly points to an imminent global catastrophe—the very self-destruction of humanity, even—one means of taking concrete action, as opposed to fatalism and denial, is to promote new legal frameworks that can structure debate and action on this issue. Valérie Cabanes shows that defining the concept of ecocide is the first key step along this road.

The Earth needs the adoption of the Crime of Ecocide to be adopted by the International Criminal Court as the fifth Crimes Against Humanity. This law would have the effect of preventing ecocide as humanity accepted our property role as trustees of life.

The destruction of the Earth’s ecosystem by industrial technologies that show no respect for living things is tantamount to mortgaging the living conditions of current and future generations. It is vital that the people (and legal entities) that are actively responsible for this destruction should be prosecuted when their decisions affect the integrity of life, and therefore the safety of the planet. The crime they commit is that of ecocide—in a sense, the original crime; the crime that destroys the very conditions for habitability on Earth. For several decades now, a series of actors have been seeking to ensure that the intrinsic value of nature and the right of ecosystems to exist are recognized, by inventing the legal means to defend them in court.

In 1986, Doudou Thiam, the Special Rapporteur tasked by the International Law Commission with submitting a draft statute establishing the future International Criminal Court (ICC) to the United Nations General Assembly, suggested that the list of crimes against humanity should be supplemented by a provision making violations of the rules governing environmental protection punishable acts. The text he proposed in Article 12 (“Acts constituting crimes against humanity”) of his draft reads as follows:

The following constitute crimes against humanity: […] Any serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment. 

The Special Rapporteur added the following comment: “It is not necessary to emphasize the growing importance of environmental problems today. The need to protect the environment would justify the inclusion of a specific provision in the draft code.”