Hello hello, I hope you had a wonderful Easter break! Iceland is a-mazing, in case you wondered, so I’d definitely recommend it to anyone. I’m planning a post on a peculiar Icelandic export soon, so there might be some pics in there as well, but today I want to talk about something different – namely, the concept of ecocide.
Yesterday, I went to a presentation by Polly Higgins, a lawyer who submitted an amendment to the Rome Statute of the International Criminal Court – the document that defines what constitutes international crimes, such as genocide and crimes against humanity – asking that ecocide be considered an international criminal offence as well. What is ecocide, you ask? The definition is as follows:
Ecocide is the extensive damage to, destruction of 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 that territory has been or will be severely diminished.
Basically, Higgins argued as follows – in today’s world, especially in the corporate sector, the law obliges companies to prioritize their shareholder interests – i.e., profit maximization – which makes it hard for companies from a legal point of view to consider things like their impact on the environment in their decision-making process. Nowadays, if they do considerable harm (say, create an oil spill or pollute groundwater), the only avenue for communities to seek justice is to submit a civil case for every single offence – a process that can take years and is really expensive, as well as resulting in too little – too late compensation. If there were an international law deeming it a crime to destroy ecosystems in the name of economic progress, a whole number of things would change:
- First, countries would have to incorporate that international mandate into their own legal system and in their decision-making process. That is, it would also be illegal for governments to hand out contracts for industrial activities with a hugely negative environmental impact, and heads of state could be held responsible in front of the International Criminal Court if they went ahead anyway. Similarly, laws would have to be adjusted, making it impossible for governments to pass legislation that protects and exempts industry from environmental regulations (as has happened with the fracking industry in the US, for example).
- Therefore, there would be a massive incentive to subsidize and prioritize sustainable and green businesses and industries in order to keep competitiveness up in this new legal environment. Closing the door to dangerous industrial activity would also give more space to the niche companies that are currently trying to be sustainable, but are failing in a cut-throat marketplace, and encourage innovation.
- Companies in turn would have to consider long and hard whether to go ahead with projects that could have a massive negative impact anyhow, knowing that their CEO could be held personally responsible in court if they did. Since the law would be based on strict liability, companies would be responsible for damages even if they claim they had no prior knowledge of what would happen (eliminating the ‘I knew nothing’ argumentation against recklessness claims). Furthermore, in a criminal law setting, it would be the responsibility of states to take action against companies, rather than it resting on the shoulders of individuals, so the balance of power would be rectified. Finally, the principle of superior responsibility would hold those at the very top of the ladder – CEOs, heads of banks, heads of governments – to justice rather than somebody that was just following orders, and thus the most powerful themselves would be personally interested in cleaning up their companies’ and institutions’ act.
I loved the idea, and Polly is a really powerful speaker. You can watch her TED talk below, in which she gives powerful reasons why ecocide should be considered a crime (talking about considering the Earth as a living being, rather than as a commodity, and adopting a legal duty of care and trusteeship rather than of property law and possession).
I remember sitting in the room and thinking “well, that is really nice, but not very realistic, is it?” and hear her in the next minute saying “don’t think about what is realistic. We can change realities, norms, what is considered possible, in very short time frames – just look at the abolition of slavery or the fall of the Berlin wall. Think about what is required for our world to change.” I really liked that attitude, and I do see that this kind of idealism as necessary – though a certain amount of pragmatism is also necessary, particularly since, in order for this proposal to go forward, it needs to be tabled by the government of one country and supported by a 2/3 majority of UN member states that are signatories to the Rome Statute. As Higgins also mentioned, there is a huge culture of fear surrounding the corporate backlash of going ahead with such a proposal, especially since companies are prone to play countries out against each other and holding jobs hostage. But that just means that we need to create a public mandate that gives parties and governments the go-ahead to move in and protect our planet, for the benefit of the many rather than the benefit of the few. I for one look forward to see this proposal develop and snake its way through the international legal system, and am crossing my fingers that we can arrive at a new normality in the process.
If you want to know more about ecocide, you can check out the website http://eradicatingecocide.com/ which also has information about a mock trial they staged to see how the principle would work in practice, join their Facebook group and sign the Avaaz petition to log your support.
Also, fun fact – the law of ecocide was originally included in the Rome Statute when it was formalized in the 1990s, but mysteriously vanished during the drafting process after allegedly oil and nuclear interests in the US, France, the UK and the Netherlands voiced their opposition to it. Read more about it in this research project done by students at the University of London.
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