Ecocide

Ecocide, or ecocatastrophe[1], is the extensive damage to, destruction of or loss of ecosystem(s) of a given territory, whether by human agency or by other, to such an extent that peaceful enjoyment by the inhabitants of that territory has been or will be severely diminished. Ecocide may have been previously used to refer to a very potent pesticide, particularly 1080 (sodium flouracetate)[2].

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 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 [3] 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.

Ecocide as a proposed international crime

The concept of ecocide as an international crime originated in the 1970s.[4]

In 2010 it was proposed that the Rome Statute be amended to include the international crime of Ecocide. The proposal was submitted to the United Nations International Law Commission[5] who are ‘mandated to promote the progressive development of international law and its codification’.[6] The definition proposed includes provisions for both individual and state responsibility and would be a strict liability crime(including both intent and negligence). It would create a duty of care in events of naturally occurring ecocide as well as creating criminal responsibility for human caused ecocide.[7]

Severity of environmental harm

To be considered an ecocide under the proposed law, an environmental harm would need to be widespread, long lasting or severe.[8] This is the parameter based disjunctive test, as already set out under the 1977 United Nations Environmental Modification Convention, which specifies the terms ‘widespread’, ‘long-lasting’ or ‘severe’ as:

  1. widespread: encompassing an area on the scale of several hundred square kilometers; and/or
  2. long-lasting: lasting for a period of months, or approximately a season; and/or
  3. severe: involving serious or significant disruption or harm to human life, natural and economic resources or other assets. [9]

History

1970

The word was recorded at the Conference on War and National Responsibility in Washington 1970, where Arthur Galston proposed a new international agreement to ban ecocide.[10][11] Galston was a US biologist who identified the defoliant effects of a chemical later developed into Agent Orange. Subsequently a bioethicist, he was the first in 1970 to name massive damage and destruction of ecosystems as an ecocide.[10]

In an obiter dictum in the 1970 Barcelona Traction case judgement, the International Court of Justice identified a category of international obligations called erga omnes, namely obligations owed by states to the international community as a whole, intended to protect and promote the basic values and common interests of all.[12]

1972

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.[13] Others, including Indira Gandhi from India and Tang Ke, the leader of the Chinese delegation, also denounced the war in human and environmental terms. They too called for ecocide to be an international crime. A Working Group on Crimes Against the Environment was formed at the conference, and a draft Ecocide Convention was submitted into the United Nations in 1973.[14]

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".[15]

Westing's view was that the element of intent did not always apply. "Intent may not only be impossible to establish without admission but, I believe, it is essentially irrelevant."[16]

1978

Draft Code of Crimes Against the Peace and Security of Mankind discussions commence. At the same time, State responsibility and international crimes are discussed and drafted.[17]

The ILC 1978 Yearbook's 'Draft articles on State Responsibility and International Crime' included: "an international crime (which) may result, inter alia, from: (d) a serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment, such as those prohibiting massive pollution of the atmosphere or of the seas."[18] Supporters who spoke out in favour of a crime of ecocide included Romania and the Holy See,[19] Austria, Poland, Rwanda, Congo and Oman[19]

1985

Ecocide as a crime continued to be addressed. The Whitaker Report, commissioned 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 was prepared by then Special Rapporteur, Benjamin Whitaker.[20] The report contained a passage that "some members of the Sub-Commission have, however, proposed that the definition of genocide should be broadened to include cultural genocide or "ethnocide", and also "ecocide": adverse alterations, often irreparable, to the environment - for example through nuclear explosions, chemical weapons, serious pollution and acid rain, or destruction of the rain forest - which threaten the existence of entire populations, whether deliberately or with criminal negligence."[21]

1987

Discussion of international crimes continued in the International Law Commission, where it was proposed that "the list of international crimes include "ecocide", as a reflection of the need to safeguard and preserve the environment, as well as the first use of nuclear weapons, colonialism, apartheid, economic aggression and mercenarism".[22]

1991

The ILC 'Draft Code of Crimes Against the Peace and Security of Mankind' of 1991 contained 12 crimes.[23] One of those was 'wilful damage to the environment (Article 26)'.

1993

As of 29 March 1993, the Secretary-General had received 23 replies from Member States and one reply from a non-member State. They were: Australia, Austria, Belarus, Belgium, Brazil, Bulgaria, Costa Rica, Ecuador, Greece, Netherlands, the Nordic countries (Denmark, Finland, Iceland, Norway, Sweden), Paraguay, Poland, Senegal, Sudan, Turkey, UK, USA, Uruguay and Switzerland. Many objections were raised, for summarised commentary see the 1993 ILC Yearbook.[24] Only three countries, the Netherlands, the United Kingdom and the United States of America, opposed the inclusion of an environmental crime.[25] The issue of adding a high test of intent (‘wilful’) was of concern: Austria commented: "Since perpetrators of this crime are usually acting out of a profit motive, intent should not be a condition for liability to punishment." Belgium and Uruguay also took the position that no element of intent was necessary for the crime of severe damage to the environment (Article 26).[26]

1996

In 1996, Canadian/Australian lawyer Mark Gray published his 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.[27]

Meanwhile, in the ILC, ‘wilful and severe damage to the environment’ (Article 26) had been tasked to a working-group: "The Commission further decided that consultations would continue as regards [Article 26] …the Commission decided … to establish a working group that would meet … to examine the possibility of covering in the draft Code the issue of wilful and severe damage to the environment ... the Commission decided by a vote to refer to the Drafting Committee only the text prepared by the working group for inclusion of wilful and severe damage to the environment as a war crime. "[28]

1998

The final Draft Code was used as inspiration for the Rome Statute at the United Nations United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, which was held in Rome.[29] The Rome Statute was the founding document of the International Criminal Court (ICC), to be used when a state is either unwilling or unable to bring their own prosecutions for international crimes.[30]

Ecocide was not included in the Rome Statute as a separate crime, but featured in relation to a war-crime.[31] The test for this war crime was narrower than previous proposed tests. Under the Environmental Modification Convention 1977 (ENMOD) the test for war-time environmental destruction is ‘widespread, long-term or severe’,[9] whereas Article 8(2)(b) of the Rome Statute 1998 modified the ENMOD test with the change of one word to ‘widespread, long-term and severe.[31]’ Article 8(2)(b) limited environmental harm to circumstances when "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 natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated."[31]

2010

The proposal for the crime of Ecocide was submitted to the United Nations by a private party. In March 2010, British "earth lawyer" Polly Higgins submitted to the United Nations an amendment to the Rome Statute, proposing that “ecocide” be legally recognised as the fifth international Crime against peace. The Rome Statute currently acknowledges four crimes against peace: genocide; crimes against humanity; war crimes; and the crime of aggression. Each of these crimes affects human victims. While Higgins’ proposed definition of ecocide attends to inhabitants’ “peaceful enjoyment”, the victim the amendment is primarily promising to protect is not human but environmental.[5][32]

2011

A mock Ecocide Act was drafted[33] and then tested in the UK Supreme Court via a mock trial[34] by The Hamilton Group.

2012

A concept paper on the Law of Ecocide[35] was sent out to governments In June 2012 the idea of making ecocide a crime was presented[36] to legislators and judges from around the world at the World Congress on Justice Governance and Law for Environmental Sustainability,[37][38] 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.[39]

In October 2012 a range of experts gathered at the international conference Environmental Crime: Current and Emerging Threats[40] 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). The conference 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 head up a study into the definition of environmental crime, new environmental crime and give due consideration to the history of making ecocide an international crime once again.[41]

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".[42] The European Citizens' Initiative,[43] 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 aimed 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.[44] The initiative did not collect the 1 million signatures needed, but was discussed in the European Parliament.[45]

Existing domestic ecocide laws

Ten countries have codified ecocide as a crime during peacetime. Those countries follow closely the ILC Draft articles definition of "An individual who wilfully causes or orders the causing of widespread, long-term and severe damage to the natural environment shall, on conviction thereof, be sentenced [to...]."[23] 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.[46]

Georgia 1999

Article 409. Ecocide: "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 ..."[47]

Republic of Armenia 2003

Article 394. Ecocide: "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 ..."[48]

Ukraine 2001

Article 441. Ecocide: "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 ..."[49]

Belarus 1999

Art 131. Ecocide: "Deliberate mass destruction of flora and fauna, or poisoning the air or water, or the commission of other intentional acts that could cause an ecological disaster (ecocide), - shall be punished by ..."[50]

Kazakhstan 1997

Art 161. Ecocide: "Mass destruction of flora or fauna, poisoning the atmosphere, land or water resources, as well as the commission of other acts which caused or a capable of causation of an ecological catastrophe, - shall be punished by..."[51]

Kyrgyzstan 1997

Art 374. Ecocide: "Massive destruction of the animal or plant kingdoms, contamination of the atmosphere or water resources, and also commission of other actions capable of causing an ecological catastrophe, shall be punishable ..."[52]

Republic of Moldova 2002

Art 136. Ecocide: "Deliberate mass destruction of flora and fauna, poisoning the atmosphere or water resources, and the commission of other acts that may cause or caused an ecological disaster shall be punished ..."[53]

Russian Federation 1996

Art 358. Ecocide: "Massive destruction of the animal or plant kingdoms, contamination of the atmosphere or water resources, and also commission of other actions capable of causing an ecological catastrophe, shall be punishable by ..."[54]

Tajikistan 1998

Art 400. Ecocide: "Mass destruction of flora and fauna, poisoning the atmosphere or water resources, as well as commitment of other actions which may cause ecological disasters is punishable ..."[55]

Uzbekistan 1994

Art 196. Pollution of Natural Environment: "Pollution or damage of land, water, or atmospheric air, resulted in mass disease incidence of people, death of animals, birds, or fish, or other grave consequences – shall be punished ..."[56]

Vietnam 1990

Art 342 Crimes against mankind: "Those who, in peace time or war time, commit acts of ... as well as other acts of genocide or acts of ecocide or destroying the natural environment, shall be sentenced ..."[57]

See also

References

  1. ↑ Barnhart, Clarence L. (1970). "Of Matters Lexicographical: Keeping a Record of New English, 1963-1972". American Speech. 45 (1/2): 98–107. doi:10.2307/455067.
  2. ↑ Egler, Frank E. (1968). "Review of Pesticides & Pollution". American Scientist. 56 (4): 484A–486A.
  3. ↑ Hossay, Patrick (2006). Unsustainable: A Primer for Global Environmental and Social Justice. United Kingdom: ZED Books. ISBN 1842776576.
  4. ↑ Gray, Mark Allan. 'The international crime of ecocide' (1996) 26 California Western International Law Journal 215.
  5. 1 2 Jowit, Juliette. "British campaigner urges UN to accept 'ecocide' as international crime". the Guardian. Retrieved 2015-10-11.
  6. ↑ "Official document of the United Nations" (PDF). legal.un.org. Retrieved 2015-10-11.
  7. ↑ "The Law | Eradicating Ecocide". eradicatingecocide.com. Retrieved 2015-11-08.
  8. ↑ "FAQs | Eradicating Ecocide". eradicatingecocide.com. Retrieved 2015-11-08.
  9. 1 2 Article 1 of the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD) http://disarmament.un.org/treaties/t/enmod/text
  10. 1 2 Zierler, David (2011). The Invention of Ecocide. University of Georgia Press. ISBN 0820338273.
  11. ↑ Article published in New York Times, 26 February 1970; quote in Weisberg, Barry Ecocide in Indochina (1970) Canfield Press, San Francisco OCLC 135562
  12. ↑ The Barcelona Traction case [1970] ICJ Rep 3, page 33, paras 33 & 34, http://www.icj-cij.org/docket/files/50/5387.pdf%5D
  13. ↑ Björk, Tord. "The emergence of popular participation in world politics: United Nations Conference on Human Environment 1972" (1996) Department of Political Science, University of Stockholm, page 15; last accessed 16/07/12.
  14. ↑ Björk, Tord. "The emergence of popular participation in world politics: United Nations Conference on Human Environment 1972" (1996) Department of Political Science, University of Stockholm, page 15
  15. ↑ 1. Falk, Richard A. "Environmental Warfare and Ecocide – Facts, Appraisal, and Proposals" In: Thee, Marek (ed.) Bulletin of Peace Proposals (1973) volume 1.
  16. ↑ Westing, Arthur H. (1974): 'Proscription of Ecocide'. In: Science and Public Affairs, January 1974
  17. ↑ A/CN.4/SER.A/1978/Add.l (Part 2), Page 80, Article 19.2. (d)http://legal.un.org/docs/?path=../ilc/publications/yearbooks/english/ilc_1978_v2_p2.pdf&lang=EFS
  18. ↑ A/CN.4/SER.A/1978/Add.l (Part 2), Page 80, Article 19.3. (d)
  19. 1 2 Sub-Commission on Prevention of Discrimination and Protection of Minorities. Study of the Question of the Prevention and Punishment of the Crime of Genocide. 4 July 1978. E/CN.4/Sub.2/416, p.124 and p.130
  20. ↑ The Whitaker Report E/CN.4/Sub.2/1985/6.
  21. ↑ E/CN.4/Sub.2/1985/6, page 17, para 33 http://www.preventgenocide.org/prevent/UNdocs/whitaker/section6.htm
  22. ↑ 987 Yearbook of the ILC Vol I, p. 56, para 38, A/CN.4/SER.A/1987 http://legal.un.org/ilc/publications/yearbooks/english/ilc_1987_v1.pdf
  23. 1 2 A/CN.4/SER.A/1991 http://legal.un.org/docs/?path=../ilc/publications/yearbooks/english/ilc_1991_v1.pdf&lang=EFSRC
  24. ↑ http://legal.un.org/ilc/publications/yearbooks/english/ilc_1993_v2_p1.pdf
  25. ↑ A/CN.4/448 and Yearbook of the ILC 1993, Vol. II, Pt. 1. Documents of the 45th session. A/CN.4/SER.A/1993/Add.1 (Part 1) see Netherlands: pp. 82-88; United Kingdom: pp. 97-102; United States of America: pp.102-105. http://legal.un.org/ilc/publications/yearbooks/english/ilc_1993_v2_p1.pdf
  26. ↑ 1993 Yearbook of the ILC Vol II, Part 1, A/CN.4/448 and Add.1 http://legal.un.org/ilc/publications/yearbooks/english/ilc_1993_v2_p1.pdf p.68, para 30 for Austria, Belgium p. 72 paras. 26 & 27; Uraguay P. 106 para 9.
  27. ↑ Gray, Mark Allan, 'The international crime of ecocide' (1996) 26 California Western International Law Journal 215; and 'The international crime of ecocide' (2003) in International Crimes, The Library of Essays in International Law, ed. N Passas, Ashgate Publishing, Aldershot UK.
  28. ↑ 1996 Yearbook of the ILC Vol II, Part 2, p16, paras 40, 41 and 44, A/CN.4/SER.A/1996 Add.1 (Part 2) http://legal.un.org/docs/?path=../ilc/publications/yearbooks/english/ilc_1996_v2_p2.pdf&lang=EFSRAC
  29. ↑ "Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 1998". legal.un.org. Retrieved 2015-11-04.
  30. ↑ "ICC - ICC at a glance".
  31. 1 2 3 The Rome Statute, Article 8(2)(b)(iv) https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf
  32. ↑ The full proposal, which was submitted to the International 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, Polly Higgins, Published by Shepheard Walwyn: 2010. ISBN 0856832758
  33. ↑ "Ecocide Act | Eradicating Ecocide". eradicatingecocide.com. Retrieved 2015-11-08.
  34. ↑ Walsh, Bryan. "Is Ecocide a Crime?". Time. ISSN 0040-781X. Retrieved 2015-11-08.
  35. ↑ Closing the door to dangerous industrial activity: A concept paper for governments to implement emergency measures. The Earth Community Trust http://eradicatingecocide.com/wp-content/uploads/2012/06/Concept-Paper-Closing-the-Door-to-Dangerous-Industrial-Activity.pdf
  36. ↑ "Palm trees and controversy: the world's top judges and lawyers at Rio+20 | Stanley Johnson". the Guardian. Retrieved 2015-11-08.
  37. ↑ "Environmental Rule of Law". www.unep.org. Archived from the original on August 31, 2013. Retrieved 2015-11-08.
  38. ↑ "Summary of the World Congress on Justice, Governance and Law for Environmental Sustainability, 17-20 June 2012, Rio de Janeiro, Brazil". www.iisd.ca. Retrieved 2015-11-08.
  39. ↑ "No lack of solutions at Rio+20 - News - Professional Resources - PreventionWeb.net". www.preventionweb.net. Retrieved 2015-11-08.
  40. ↑ "International Conference on Environmental Crime: Current and Emerging Threats". www.unicri.it. Retrieved 2015-11-08.
  41. ↑ "International Conference on Environmental Crime: Current and Emerging Threats: ACTION PLAN ON COMBATING ENVIRONMENTAL CRIME" (PDF). www.unicri.it. Retrieved 2015-11-08.
  42. ↑ "Initiative details - European Citizens' Initiative - European Commission". ec.europa.eu. Retrieved 2015-11-08.
  43. ↑ "Basic facts - European Citizens' Initiative - European Commission". ec.europa.eu. Retrieved 2015-11-08.
  44. ↑ "IES > News > Citizen Campaign to End Ecocide in Europe". www.envirosecurity.org. 2015-08-11. Retrieved 2015-11-08.
  45. ↑ "Public hearing in the European Parliament | European Citizens' Initiative | The ECI Campaign". www.citizens-initiative.eu. Retrieved 2015-11-08.
  46. ↑ "Transparency International". Transparency.org. Retrieved 2014-08-15.
  47. ↑ "Criminal Code of Georgia 1999 Article 409". Wipo.int. 1999-07-22. Retrieved 2015-07-15.
  48. ↑ "Criminal Code of the Republic of Armenia 2003 Article 394". Parliament.am. Retrieved 2015-07-15.
  49. ↑ "Criminal Code of Ukraine 2001 Article 441". Legislationline.org. Retrieved 2015-07-15.
  50. ↑ (Russian)Original text: Статья 131. Экоцид Умышленное массовое уничтожение растительного или животного мира, либо отравление атмосферного воздуха или водных ресурсов, либо совершение иных умышленных действий, способных вызвать экологическую катастрофу (экоцид), – наказываются ... Penal Code of Belarus 1999 Art 131. Retrieved 2015-07-15
  51. ↑ Code Kazakhstan 1997 (Amended 2011) Art 161. Retrieved 2015-07-15.
  52. ↑ "Penal Code Kyrgyzstan 1997 (Amended 2009) Art 342". Wipo.int. Retrieved 2015-07-15.
  53. ↑ "Penal Code Republic of Moldova 2002 (amended 2009) Art 136". Legislationline.org. Retrieved 2015-07-15.
  54. ↑ "Criminal Code Russian Federation 1996 Art 358". Russian-criminal-code.com. Archived from the original on March 1, 2015. Retrieved 2015-07-15.
  55. ↑ "Criminal Code Tajikistan 1998 Art 400". Legislationline.org. Retrieved 2015-07-15.
  56. ↑ Criminal Code of Uzbekistan 1994 Art. 196. Retrieved 2015-07-15.
  57. ↑ "Penal Code Vietnam 1990 Art 342". Wipo.int. Retrieved 2015-07-15.

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