Wednesday, October 30, 2019

Making Ecocide a Crime

Many of the world's most serious environmental problems would be addressed if we were to make ecocide a crime. This would also protect Indigenous livelihoods and lands. Here are excerpts from an article titled Ecocide, genocide and the disregard of alternative life-systems by Tim Lindgrin. It was published in the International Journal of Human Rights.

As defined by by Polly Higgins, in a book titled Eradicating Ecocide: Laws and Governance to Prevent the Destruction of Our Planet (London: Shepheard-Walwyn, 2010). Ecocide refers to “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 severely diminished” (Higgins, Short & South, 2012, p. 4).

There are global initiatives that seek to make ecocide an international crime dating to the 1970s. Inclusion of ecocide into the Rome Statute1 as one of the crimes against peace was extensively discussed between 1985 and 1996. However, the final version of the Statute only included ecocide as a crime in times of war.

In April 2010, environmental activist and barrister Polly Higgins submitted a proposal to the International Law Commission of the United Nations for the amendment of the Rome Statute, advocating the recognition of mass environmental destruction and damage as an international crime and a crime of strict liability committed by legal or natural persons.

Following the submission of the proposal, Higgins and several other lawyers created a draft Ecocide Act that outlines the guiding principles of an international law of ecocide. The draft Act urges the condemnation of ecocide and views it as a crime against humanity, nature, and future generations.

State and corporate actors are responsible for most of the ecological social harms and injustices and they are commonly the ones who write the laws. 

The draft ecocide act is set up under the Rome Statute, which established the International Criminal Court. This court would have jurisdiction over suspected perpetrators of the crime of ecocide.  Those responsible would be held accountable and sentenced to a term of imprisonment upon their conviction. This means that transnational corporations who commit ecocide will not be able to escape the grave environmental and social consequences of their activities by simply paying a fine.

Furthermore, the proposed law of ecocide imposes international and transboundary duty of care on governments to provide help and assistance to those facing naturally occurring ecocides and catastrophic events. In addition to this, the Act urges the recognition of the crime of cultural ecocide “where the right to cultural life by indigenous communities has been severely diminished by the acts of a person, company, organization, partnership, or any other legal entity that causes or fails to prevent extensive damage to, destruction of or loss of cultural life of the inhabitants of a territory” (Ecocide Act, n.d., section 7).  If adopted, states and corporations that commit acts that severely diminish indigenous peoples right to cultural life will be guilty of the crime of cultural ecocide.

Lindgrin argues that collective action is the most appropriate and effective response for eradicating ecological destruction and its negative impacts on people and the planet. With considerable support from governments, scholars, and the public, making ecocide an international crime was actually on the international agenda until the adoption of a final version of the Draft Code of Crimes Against the Peace and Security of Mankind, which later became the Rome Statute.

While finalizing the Draft Code, the International Law Commission discussed the possible inclusion of offences, which cause serious damage to the environment in times of peace and drafted Article 26. However, wording of the draft Article 26 met with objection from several governments and was consequently removed from the final version (Gauger, Pouye Rabatel Fernel, Kulbicki, Short and Higgins, 2013).

Regardless of this outcome, ten countries have chosen to incorporate the crime of ecocide into their national penal codes.3 Consequently, one can conclude that “ecocide was recognized as a crime which the international community had deemed to be so serious that it was included in the Draft Code of Crimes Against the Peace and Security of Mankind” as well as national penal codes of several countries

Despite political reluctance, promulgation of an international law of ecocide is possible with strong global awareness and support, given the current status of the climate crisis. What is needed first is one State Party to propose an amendment to the Rome Statute to introduce the crime of ecocide as the fifth international crime against peace. Following this achievement, strong transnational cooperation and effective campaigning will be indispensable to convince two-thirds of the States’ Parties to adopt the proposed amendment which would prohibit crimes against nature and its inhabitants. Once an international law of ecocide is put into place, states could pass laws to incorporate the crime of ecocide into their national legislation and the International Criminal Court (ICC) could become the court of last resort in cases where a national court is unable or unwilling to prosecute. As a penalty, the ICC could impose a prison sentence in addition to a fine or a forfeiture of proceeds, property, and assets (Rome Statute of the International Criminal Court, 1998, art.77). As a complementary sentencing mechanism, the Ecocide Act advocates restorative justice processes in addition to or substitution of imprisonment. According to Section 19, “where a defendant pleads or is found guilty, the court must remand the case in order that the victim(s) shall be offered the opportunity to participate in a process of restorative justice involving contact between the offender and any representatives of those affected by the offence” (Ecocide Act, n.d.).

There is also a growing discussion about the establishment of a more suitable tribunal to prosecute those who commit the crime of ecocide. An International Criminal Court of the Environment and Health or an International Court for the Environment are among the proposed institutions.

Lindgrin suggests that an alliance between indigenous environmental and climate movements would be an important step towards the realization of a law of ecocide with an international scope. Increasing research and scientific publication, exchanging knowledge, launching global campaigns, organizing conferences and events at executive levels are among the ways that the two movements can collaborate with transnational initiatives that want to make ecocide an international crime. Such cooperation will empower both movements and their lobbying power for their common endeavor to pursue ecological and social justice.

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