Ecocide

The term ecocide refers to any extensive damage or destruction of the natural landscape and disruption or loss of ecosystem(s) of a given territory to such an extent that the survival of the inhabitants of that territory is endangered.^[1][2] Ecocide can be irreversible when an ecosystem suffers beyond self healing. It is generally associated with damage caused by a living agent whether directly or indirectly. An organism might inflict ecocide directly by killing enough species in an ecosystem to disrupt its structure and function.^[3] Ecocide can also result from pollution such as the introduction of high concentrations of pesticides which destroy the local flora extensively. A weaker definition of ecocide is that in which an organism destroys ecosystems other than its own. (e.g. cancer). For example, it could be said that during the Precambrian era, blue-green algae committed ecocide upon the prevailing reducing-chemistry-based ecology, by releasing oxygen into the environment. Organisms to which oxygen was a poison died off, while the algae and other organisms adapted and created a new oxidation-chemistry-based ecology.

Anthropogenic ecocide

The term ecocide is more recently used to refer to the destructive impact of humanity on its own natural environment. As a group of complex organisms we are committing ecocide through unsustainable exploitation of the planet's resources. The geological era we are living in, known as the anthropocene, is so named because the activities of the human species are influencing the Earth's natural state in a way never seen before. The most notable example is that of the atmosphere which is being transformed through the emission of gases from fossil fuel use : carbon dioxide, methane, chlorofluorocarbons etc. The population explosion of the last century in conjunction with economic models built on growth are fuelling this misuse, a form of global ecocide. The ecocide we are witnessing is a symptom of the disregard and reward for accounting for the damage being caused. U.S. environmental theorist and activist Patrick Hossay ^[4] argues that the human species is committing ecocide, via industrial civilization's effects on the global environment. Much of the modern environmental movement stems from this belief as a precept.

At the heart of the ecocide issue are practical and moral questions: is human activity destroying the ecological support system necessary for our own survival?

International crime

The concept of making Ecocide an international crime has been around for decades. From the 1970s onwards there has been growing support from government, business and communities to make Ecocide the fifth International Crime against peace to stand alongside the crime of Genocide by amending the Rome Statute.^[5] It is part of an emerging body of Earth Law or Earth jurisprudence.^[6]

Making Ecocide an international crime is proposed in order to protect human rights, the natural environment and prevent runaway climate change. However, opponents argue that this will criminalise the whole human race.^[7]

A Proposed Definition

Ecocide is not currently an international crime, although it is a domestic crime in at least ten countries. The legal definition of ecocide proposed to the United Nations in 2010 by UK Lawyer Polly Higgins was:

"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. " ^[8]

It is an international crime to cause widespread, long-term and severe damage to the non-human environment during war time. Article 8(2)(b)(iv) of the Rome Statute prohibits:

"Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the non-human environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated. "

However, presently there is no correlating crime during peacetime . The existing law of war could be used in the interpretation of what constitutes ecocide. The 1977 United Nations Environmental Modification Convention specifies the terms ‘widespread’, ‘long-lasting’ and ‘severe’ as:

1. widespread: encompassing an area on the scale of several hundred square kilometers;
2. long-lasting: lasting for a period of months, or approximately a season;
3. severe: involving serious or significant disruption or harm to human life, natural and economic resources or other assets.

History

1970 - 2000

The concept of creating an international crime of Ecocide; the extensive damage and destruction of ecosystems ^[8] has been around since the 1970s.^[9][10] The term was recorded at the Conference on War and National Responsibility in Washington 1970, where Arthur Galston proposed a new international agreement to ban ecocide.^[11]

In 1972 at the United Nations Stockholm Conference on the Human Environment which adopted the Stockholm Declaration, Olof Palme the Prime Minister of Sweden, in his opening speech spoke explicitly of the Vietnam war as an ecocide and it was discussed in the unofficial events running parallel to the official UN Stockholm Conference on Human Environment.^[12]

In 1972 Dai Dong, a branch of the International Fellowship of Reconciliation sponsored a Convention on Ecocidal War which took place in Stockholm, Sweden. The Convention brought together many people including experts Richard A. Falk, expert on the international law of war crimes and Robert Jay Lifton, a psychohistorian. The Convention called for a United Nations Convention on Ecocidal Warfare, which would amongst other matters seek to define and condemn ecocide as an international crime of war. Richard A. Falk drafted an Ecocide Convention in 1973, explicitly stating at the outset to recognise “that man has consciously and unconsciously inflicted irreparable damage to the environment in times of war and peace” ^[13]

During the 1970s the idea of expanding the 1948 Genocide Convention led to extensive enquiry as to whether ecocide should be included as a crime against peace by the United Nations. The Sub-Commission on Prevention of Discrimination and Protection of Minorities prepared a study discussing the effectiveness of the Genocide Convention, proposing the adoption of ecocide as well as cultural genocide to the list of crimes. In the following years making ecocide a crime was examined by working groups and mentioned in several studies. In 1985, ecocide surfaced again, within the Whitaker report, by the Sub-Commission on the Promotion and Protection of Human Rights on the question of the prevention and punishment of the crime of genocide prepared by then Special Rapporteur, Benjamin Whitaker.^[14] Members of the Sub-Commission were divided on including ecocide as a crime against peace. A draft resolution, prepared for the Commission on Human Rights submitted by Deschênes and Mubanga-Chipoya as part of the review, included the recommendation to have Whitaker expand and deepen the study of the notions of cultural genocide, ethnocide and ecocide. In the UN report on its 38th session, a reference is missing as to whether the Sub-Commission finally determined what route they were to take.

In 1996, Canadian/Australian lawyer Mark Gray published his 1988^[15] proposal for an international crime of ecocide, based on established international environmental and human rights law. He demonstrated that states, and arguably individuals and organisations, causing or permitting harm to the natural environment on a massive scale breach a duty of care owed to humanity in general. He proposed that such breaches, where deliberate, reckless or negligent, be identified as ecocide where they entail serious, and extensive or lasting, ecological damage; international consequences; and waste.^[16]

Ecocide was discussed by the International Law Commission in the Draft Code of Crimes Against the Peace and Security of Mankind.^[17] This eventually became the Rome Statute. The Rome Statute codifies four named crimes against peace – genocide, war crimes, crimes against humanity, crimes of aggression. Ecocide was considered for inclusion and when it was excluded in 1995 by the International Law Commission, many countries that had specifically spoken on the topic subsequently went on record calling at the very least for the retention of then Article 26 (crime against the environment).^[18]

What was retained in the final Rome Statute was a watered-down version of a war-crime, not a peace-crime, against the environment. Article 8(2)(b) of the Rome Statute adopted the 1977 Environmental Modification Convention definition of a crime against the environment and criminalises "Intentionally launching an attack in the knowledge that such attack will cause… widespread, long-term and severe damage to the natural environment…" There was however, one crucial difference; widespread, long-term or severe had been watered down, namely: or was replaced with and. Christian Tomuschat argues that history has demonstrated that proving destruction widespread, long-term and severe is almost impossible to prosecute.^[19]

2010 - 2012

In 2010 international environmental lawyer and author Polly Higgins ^[20] spearheaded an initiative “Eradicating Ecocide” ^[21] to make ecocide a crime. Higgins proposed to the United Nations that ecocide be made the fifth international crime against peace. The full proposal which was submitted to the UN Law Commission is set out in chapters 5 and 6 of her book Eradicating Ecocide: Laws and Governance to Prevent the Destruction of our Planet.^[8] The idea was developed further in her Earth is our Business: Changing the Rules of the Game, published May 2012.^[22]

In 2012 a concept paper on the Law of Ecocide was sent out to all governments around the world.^[23]

In June 2012 the idea of making ecocide a crime was presented to legislators and judges from around the world at the World Congress on Justice Governance and Law for Environmental Sustainability.^[24][25] held in Mangaratiba before the Rio +20 Earth Summit, the United Nations Conference on Sustainable Development.

Making ecocide an international crime was voted as one of the top twenty solutions to achieving sustainable development at the World Youth Congress in Rio de Janeiro in June 2012.^[26]

In July 2012 the University of London Human Rights Consortium launched The Ecocide Project ^[27] to further carry out research into the history of the Law of Ecocide and develop the law further.

In October 2012 a range of experts gathered at the international conference Environmental Crime: Current and Emerging Threats ^[28] held in Rome at the UN Food and Agricultural Organization Headquarters hosted by the United Nations Interregional Crime and Justice Research Institute(UNICRI) in cooperation with United Nations Environmental Programme (UNEP) and the Ministry of the Environment (Italy). It was recognized that environmental crime is an important new form of transnational organized crime in need a greater response. One of the outcomes was that UNEP and UNICRI will head up a study into the definition of environmental crime and look into suggesting new environmental crime considering the history of making ecocide a crime against peace.^[28]

2013 - 2014: European citizen Initiative for criminalising ecocide

On January 22, 2013, a committee of eleven citizens from nine EU countries officially launched the "European Citizens Initiative "End Ecocide in Europe""^[29] The European Citizens' Initiative,^[30] or ECI, is a tool created by the Lisbon Treaty to promote participative and direct democracy. The ECI is a way for EU citizens to propose new or suggest amendments to legislation directly to the European Commission which is the institution proposing new EU laws. This initiative aims at criminalising ecocide, the extensive damage and destruction of ecosystems, including the denial of market access for products based on ecocide to the EU and investments in activities causing ecocide. Three MEPs, Keith Taylor, Eva Joly, and Jo Leinen, publicly gave the first signatures on this day. The ECI obtained less than 120 000 signatures, far less than the required 1 million signatures required for it to be considered by the European Commission.

The international crime of ecocide

Polly Higgins proposed that there are two types of ecocide the law should cover; ascertainable and non ascertainable.^[8] Many reasons are put forward for the need for an international crime of ecocide. There is wide scientific agreement that the scale of anthropogenic impact on the natural environment is unsustainable and that continued interference with the Earth system will have significant consequences.^[31] Humanity has stepped out of what has been called a safe operating space and has exceeded at least three defined planetary boundaries.^[32]

Ascertainable ecocide

Ascertainable or human made ecocide is caused by humans and can be the consequence of corporate activity. Here, an individual responsible for the activity which has resulted in ecocide can be identified. Examples of ascertainable ecocide include:

1. Large-scale land use change that causes the direct destruction of habitats – as is the case with deforestation in most tropical rainforests and including the Deforestation of the Amazon Rainforest
2. Significant pollution whether deliberate or incidental – such as oil dumping and spills as in the Niger Delta;
3. Open cast mining where entire landscapes are removed – as is the case with oil sands and some coal and gold mining such as the Athabasca oil sands.

Proponents for the criminalisation of ascertainable ecocide argue that it will act to prevent it and restore the damage once it is caused and open the doors to sustainable development.^[8] As a crime of strict liability it will hold those in a position of superior or Command responsibility criminally liable if they commit ecocide, without the necessity to prove mens rea. This will act to prevent businesses from carrying out dangerous industrial activity, Heads of States will redirect policy and subsidies away from the fossil fuel industry to renewable energy, and financial institutions will redirect investment into the green economy. If ecocide is committed a range of measures are proposed including restorative justice. A draft Ecocide Act and Sentencing Guidelines have been drafted by Polly Higgins.^[8] If ecocide is made an international crime by amending the Rome Statuteprosecutions will take place in national courts, according to principal of complementarity, but where States are complicit or unwilling to prosecute, a case will go to the International Criminal Court.

Opponents to making ascertainable ecocide an international crime argue that it could potentially criminalise the whole of humanity and also that it is anti development.^[7] It could potentially criminalise any business activity which environmentalists loath.^[33] The wording of the proposed definition, and the use of the wartime model for preventing a peacetime crime, has also been challenged.^[34]

Non-ascertainable ecocide

The second type of ecocide is caused by “other causes” or non ascertainable ecocide. These are catastrophic events which are referred to in law as a force majeure or an ‘act of God’, such as flooding or an earthquake. Such events can be termed ‘non-ascertainable ecocide’ as either they occur naturally or, no one perpetrator can be identified, as is the case with climate change and its effects.^[8]

A law of Ecocide could potentially imposes a duty of care on all states to provide assistance to those facing naturally occurring ecocides, using Articles 73 and 75 of the United Nations Charter. It could ensure governments open a dialogue and talk about how to assist those facing rising sea levels and flooding. Article 73 in the United Nations Charter sets out the Sacred Trust of Civilization. It states:

Members of the UN... recognise that the interests of the inhabitants are paramount, and accept as a sacred trust the obligation to promote to the utmost... the well-being of the inhabitants of these territories…

The Sacred Trust of Civilization highlights that the number one responsibility for members of the UN is to ensure the well being of people and the planet.

One of the founding pillars of the UN is the United Nations Trusteeship Council, to help territories in need of assistance. Article 75 in the United Nations Charter states:

The UN shall establish ...an international trusteeship system for the administration and supervision of trust territories.

Critics argue that creating an international crime to deal with naturally occurring ecocide does not make sense. You cannot criminalise an act of God or something which occurs naturally.^[34][35]

Opposition to the international crime

Opponents to making manmade ecocide an international crime argue that it could potentially criminalise the whole of humanity and also that it is anti development.^[36] It could potentially criminalise any business activity which environmentalists loath.^[37] Critics argue that creating an international crime to deal with naturally occurring ecocide does not make sense as you cannot criminalise an act of god or something which occurs naturally.^[35] They also argue that there will be inevitable resistance from a number of very important countries to making ecocide a crime, and that it could be a long and messy business to get countries to agree to its implementation.^[38]

Practical application of the law

In 2011 a mock ecocide trial was held in the Supreme Court of the United Kingdom to test how the International Crime of Ecocide would work in practice. Michael Mansfield acted as the prosecution in the case.^{[39][40][41][42][43][44]}

In 2012 a restorative justice sentencing was held at the University of Essex as a follow up to the mock trial. Lawrence Kershen, chair of the Restorative Justice Council, UK facilitated the process and the hearing included a number of participants including a member of First Nations people of Northern British Columbia.^[45]

Implementing the Crime of Ecocide

It is already an international crime to cause widespread, long-term and severe damage to the natural environment during war time.^[46] In peace time there is no correlating crime. The Rome Statute sets out the four core international crimes and established the International Criminal Court to prosecute these. ^[47]

An amendment to the Rome Statute is needed to include ecocide as the fifth crime against peace. To do this requires one party to the Rome Statute to call for an amendment for this document to be reviewed. When put to the vote, it requires a total of 81 signatories, a two thirds majority, to be declared a lawful amendment.^[48]

Once implemented Polly Higgins proposes that there should be a 5 year transition phase before the law comes into force to allow for subsidies to be redirected and businesses to adapt and become leaders in the green economy, similar to how the Montreal Protocol phased out Ozone depleting substances to prevent Ozone depletion.^[8]

Critics argue that there will be inevitable resistance from a number of very important countries to making ecocide a crime, and that it could be a long and messy business to get countries to agree to its implementation.^[38]

Existing domestic ecocide laws

Ten countries have made ecocide during peacetime a national crime. Although there are Laws of Ecocide in place, the effectiveness of these laws depends on a number of factors including the enforcement of the law, an independent judiciary and respect for the rule of law. Many of the countries with national laws of ecocide in place are ranked very highly for corruption and low for respect for the rule of law by Transparency International.^[49]

Proponents for a law of ecocide argue that to be effective ecocide should be made an international crime. In this case, action could be taken against members of governments and judiciaries who are complicit with ecocide.^[8]

Georgia 1999

Article 409. Ecocide i.e. Contamination of atmosphere, land and water resources, mass destruction of flora and fauna or any other action that could have caused ecological disaster – shall be punishable by imprisonment extending from eight to twenty years in length.^[50]

Republic of Armenia 2003

Article 394. Ecocide i.e. Mass destruction of flora or fauna, poisoning the environment, the soils or water resources, as well as implementation of other actions causing an ecological catastrophe, is punished with imprisonment for the term of 10 to 15 years.^[51]

Ukraine 2001

Article 441. Ecocide i.e. Mass destruction of flora and fauna, poisoning of air or water resources, and also any other actions that may cause an environmental disaster, – shall be punishable by imprisonment for a term of eight to fifteen years.^[52]

Belarus 1999

Art 131. Ecocide i.e. In a part dealing with crimes against the peace and the security of mankind and war crimes, provides for the punishment of ecocide, namely mass destruction of the fauna and flora, pollution of the atmosphere and water resources as well as any other act liable to cause an ecological disaster ^[53]

Kazakhstan 1997

Art 161. Ecocide i.e. namely mass destruction of the fauna or flora, pollution of the atmosphere, agricultural or water resources, as well as other acts which have caused or are capable of causing an ecological catastrophe, constitutes a crime against the peace and security of mankind.^[54]

Kyrgyzstan 1997

Art 374. Ecocide i.e. namely mass destruction of the flora and fauna, poisoning of the atmosphere or water resources, as well as other acts capable of causing an ecological catastrophe, is punishable by deprivation of liberty.^[55]

Republic of Moldova 2002

Art 136. Ecocide i.e. namely the deliberate and massive destruction of the fauna and flora, the pollution of the atmosphere or poisoning of water resources, as well as other acts capable of causing an ecological catastrophe, is punishable by deprivation of liberty.^[56]

Russian Federation 1996

Art 358. Ecocide i.e. namely massive destruction of the fauna and flora, contamination of the atmosphere or water resources, as well as other acts capable of causing an ecological catastrophe, constitutes a crime against the peace and security of mankind.^[57]

Tajikistan 1998

Art 400. Ecocide i.e. namely mass extermination of flora or fauna, poisoning the atmosphere or water resources, as well as other acts capable of causing an ecological catastrophe, constitutes a crime against the peace and security of mankind.^[58]

Vietnam 1990

Art 278. Ecocide i.e. destroying the natural environment, whether committed in time of peace or war, constitutes a crime against humanity.^[59]

See also

• Ecophagy
• Ecotage
• Environmental disaster
• List of environmental issues
• Operation Ranch Hand
• Scorched earth
• WALL-E, ecocide in fiction
• War on Drugs

References

External links

• Official website of Polly Higgins International campaign
• Official website of the european citizens' initiative
• The story of stuff
• Polly Higgins on YouTube
• The Ecocide Research Aggregator
• EcocideUSA Twitter Feed

Further reading

• Franz, Broswimmer (2002). Ecocide: A Short History of Mass Extinction of Species. Pluto Press. ISBN 0-7453-1934-3. 

• Diamond, Jared (2005). Collapse: How Societies Choose to Fail or Succeed. England: Penguin Books. p. 575. ISBN 0-14-303655-6. 

• Cherson, Adam (2009). Ecocide: Humanity's Environmental Demons. Greencore Books. p. 135. ISBN 978-0-595-46318-3. 

• Higgins, Polly (2010). Eradicating Ecocide: Laws and Governance to Prevent the Destruction of our Planet. Shepheard-Walwyn. p. 202. ISBN 978-0-85683-275-8. 

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