How an amendment to international human rights law could hal the destruction of nature
India Bourke / The New Statesman
(February 16, 2021) — “We’re not heading in a good direction and I sense trouble ahead,” Philippe Sands QC, one of the world’s leading human rights lawyers, tells me when we speak over Zoom. Known for his work on the origins of genocide, Sands has long been acutely conscious of the horrors that humans can commit. But, to date, prosecutions at the International Criminal Court (ICC) have been limited to those acts which primarily impact other human beings — something Sands no longer believes is adequate.
Sands is now part of a push to make the systematic destruction of nature a recognised international crime known as “ecocide”. Since November, Sands has been co-chairing an expert panel charged with giving the term legal definition. If an amendment to the ICC’S founding treaty is then adopted, ecocide will sit alongside war crimes, genocide and crimes against humanity as a legally binding offence — one through which chief executives and heads of state can be brought to justice.
There are multiple reasons for making ecocide a criminal offence, from giving legal teeth to international treaties such as the Paris Agreement, to facing up to the scale of the threat posed by the climate crisis. There is also a practical need for environmental criminal prosecutions to be truly international in scope, so that its perpetrators have nowhere to hide — as Jojo Mehta, who co-founded the Stop Ecocide campaign alongside the late legal pioneer Polly Higgins, has highlighted.
As co-chairman of the panel, Sands will listen to and attempt to assimilate contributions from all quarters (a responsibility he repeatedly stresses throughout our conversation), including via an ongoing public consultation. But, in his personal view, the justification for the law’s introduction hinges on one particular idea: the need for humanity to understand that it is not all-powerful, and that non-human interests must be given expression and protection in their own right.
“To be frank, I’d be extremely disappointed to come up with a definition of ecocide that is centred, or even significantly based, on the protection of the human,” he says with characteristic candour. “I think this is the moment to go beyond that.”
Sands’s own connection to the subject is rooted in an almost uncanny entwining of the personal and the historical. In one way, he says, it began with the Chernobyl nuclear disaster in 1986. This cataclysmic event, he explains, “changed my life”, prompting him to write one of the first textbooks on international environmental law and to visit Vienna, the site of the International Atomic Energy Agency as well as his family’s historic home.
In another respect, the connection for Sands dates back to the 1945-46 Nuremberg trials of Nazi war criminals and the beginning of modern human rights law itself. In his acclaimed 2016 memoir, East West Street, he weaves together the birth of these influential laws and his own family’s traumatic wartime experience. Two brilliant legal thinkers, Raphael Lemkin and Hersch Lauterpacht, are central to this story. And it is their fearless commitment to judicial innovation that Sands sees as particularly relevant today.
“We need to do the same thing now,” Sands says. “We have to get off our arses and do something about it.” What comes out of that effort may not be perfect, he recognises, and some people won’t approve — but he’s “very inspired” by the events of 1945 and driven, in turn, by a sense of responsibility towards the next generation.
The splits between Lemkin and Lauterpacht — and the resulting definitions of genocide and crimes against humanity — also have a technical bearing on ecocide’s formal conception, not least because the crime of genocide requires proof of intent, and proving this in relation to the destruction of nature can be difficult.
The issue of intent also raises questions about what standards of care should be consciously applied to environmental harm and by whom. “Am I, merely by being a barrister, complicit?” Sands asks with regard to his own legal work on maritime boundary disputes, which often involve the distribution of rights to oil and gas. “We all have individual responsibility,” he says, while recognising that responsibility rises to the top. “You’ve got to ask yourself: who ultimately is going to stop this?”
In his previous work, Sands has criticised the treatment of crimes against humanity as less significant than genocide and has consequently argued that the latter concept should be widened. But he nonetheless recognises the term’s emotional pull. His “instinct” therefore is that the definition of ecocide should fall somewhere between the two: drawing its name from “genocide” but, in practice, being more akin to crimes against humanity.
Sands does not expect the working group to concur with him on all these points, nor does he expect it to have answered all these questions by the time it concludes work in June. But his aim is to produce a generic set of principles that can be applied by judges to particular sets of facts.
After that, attention will turn to seeking diplomatic support. For the definition to become international law, a country must formally propose it at the ICC in The Hague, where it will then need to be adopted by a two-thirds majority vote. Countries such as France and Sweden, as well as at-risk island states such as Vanuatu and the Maldives, have already expressed varying degrees of support, but full acceptance could still take years.
However, a slower pace isn’t wholly negative, says Mehta, pointing to the project’s potential to transform the world’s “ecocidal” economy into a more sustainable one — something that will take time.
And even while ecocide remains only a potential crime, its growing prominence may lead governments and companies to question their own role in the climate crisis.
“Nothing concentrates the mind better than the prospect of an individual being found criminally liable,” says Sands.
ACTION: Spread the word and join the movement to make ecocide an international crime
India Bourke is the online editor for the New Statesman‘s international edition.
See also:
• Could ecocide become an international crime?
ACTION: Spread the word and join the movement to make ecocide an international crime
The Stop Ecocide Campaign Aims to Make Harming the Planet an International Crime
The campaign hopes to criminalize environmental destruction — and save Earth in the process
(September 16, 2020) — Growing up, UK environmental activist Jojo Mehta always had a deep reverence for nature. It’s something her parents instilled in her from a young age, she says. But she admits it wasn’t until she was an adult and had a child of her own that she was moved to make environmentalism her life’s calling.
“It was learning about fracking that got me out of my ‘activist’s armchair’ and onto the streets,” Mehta explains. Hydraulic fracturing, commonly known as fracking, is a drilling technique designed to extract natural gas and oil from shale. The chemicals used in the process can cause increased groundwater contamination, wastewater pollution and air pollution.
Mehta’s daughter, then 5 years old, overheard her talking about it and “burst into tears.”
“‘But Mummy,’ she wailed, ‘if they are poisoning the ground, they will poison themselves too — you have to call them and tell them to stop!’” Mehta recalls her daughter saying. “It was one of those wakeup moments. Even a 5-year-old could understand how insane it was, and she was asking me what I was going to do about it.”
Mehta decided right then that she needed to do something. She got involved in the UK anti-fracking community and started organizing talks, surveys and protests. It was during this time that she met the late Polly Higgins, the visionary lawyer and environmental lobbyist with whom Mehta went on to found the Stop Ecocide campaign, now managed by the charitable Stop Ecocide Foundation (Netherlands) of which Mehta is Chair.
Launched in 2017, the Stop Ecocide campaign works with an exclusive focus: to make damaging and destroying ecosystems an international crime alongside genocide, crimes against humanity, war crimes and crimes of aggression. The reason we’re facing an ecological emergency today, the campaign charges, is because of decades of unchecked, widespread and systematic harm to nature caused by detrimental industrial activities. By destroying the natural world, we’re also destroying our chances of maintaining a livable planet — forests and oceans, for example, are some of the most significant carbon sinks on Earth.
As of now, however, the only penalties for corporations that fund these destructive environmental practices are lawsuits and fines, which they can simply write into the budget. But by making ecocide a crime, CEOs and financiers can be held liable for criminal prosecution.
“CEOs have an obligation to maximize profit within the law. They may not, for example, allow mass killing to take place en route to profit,” Mehta explains. “Currently, banks and investors continue to fund ecocidal activity. When asked why, the answer is simple: ‘It’s not a crime.’ Listing ecocide as an atrocity crime accurately reflects the very real, long-term and existential threat to humanity and our life-support systems from ecocidal activities.”
Mehta’s not the only one to champion this approach as a solution to curb climate change. Recent recognition from world leaders in France and Belgium as well as the Vatican, not to mention support from headline-making young climate activists, is helping to shine a spotlight on the Stop Ecocide campaign — and the urgent action needed to protect the planet for future generations.
A STATE OF EMERGENCY
Climate change is not a problem that the world can wait to address. It’s here, and we’re already feeling the repercussions in our daily lives, from increasingly active hurricane seasons and 100-year record floods to punishing droughts and rampaging wildfires.
Data from NASA reveals that 2019 was the second warmest year on record, with average global temperatures 1.8°F warmer than the 20th-century average. In fact, of the last 140 years, the past five have been the warmest. And in May, the concentration of carbon dioxide in Earth’s atmosphere reached 416 parts per million, the highest it’s been in history.
But while fossil-fuel burning power plants and passenger cars are still the main drivers of climate change, the agriculture and forestry industries are also culpable, accounting for an estimated 23% of total human-caused greenhouse gas emissions, a 2019 U.N. Intergovernmental Panel on Climate Change (IPCC) report finds. The study emphasizes that deforestation and other activities related to these industries have already led to the loss of natural ecosystems such as forests, savannahs, natural grasslands and wetlands, and a decline in biodiversity. This, in turn, is threatening food security and water supplies for millions of people worldwide.
The Amazon rainforest, in particular, is facing innumerable threats due to unsustainable economic development. Spanning 670m hectares, the region is home to 10% of the world’s known plant and animal species and to 34 million people who depend on its resources to live. The Amazon’s trees and vegetation play a major role in combatting the effects of climate change, storing between 90 to 140bn metric tons of carbon. However, if the current alarming rate of deforestation and degradation continues — a result of clearing land for agriculture, illegal logging, reckless mining and drilling, drought-related wildfires and other damaging events — more than a quarter of the Amazon’s trees will be gone by 2030. And gone along with them will be our biggest climate solution: nature itself.
In order to mitigate the most catastrophic effects of a warming planet, humans must take drastic measures to reduce greenhouse gas emissions by nearly 50% by 2030, and then to zero by 2050, warns the IPCC. And while the landmark Paris Agreement calls for cosigning nations to reduce their emissions in order to limit global warming to 2.7°F (1.5°C), only two countries — Morocco and the Gambia — are currently on track to meet that target. We need to do more, and urgently so, to preserve nature, experts say. Otherwise, we all suffer.
“We’re not short of solutions: renewables, regenerative farming, circular economy approaches. But with all the emissions-reducing ambition in the world, it’s hard to see how we can transition fast enough unless the harmful practices are stopped,” Mehta says. “Establishing ecocide crime has the potential to level that playing field, re-channel finance and unleash innovation and rapid transition. And since Covid-19, nobody can claim that rapid action isn’t possible — ecocide law is the necessary nudge.”
TIME TO CHANGE THE RULES
Supporters of criminalizing ecocide say that being able to legally hold accountable global and corporate leaders that demonstrate a willful disregard for the impact of negligent environmental practices such as deforestation, drilling and mining will result in a domino effect of sorts, deterring corporations that depend on reputation and public/investor confidence from causing further devastation. And by criminalizing it on an international stage, says Mehta, it creates coherence across boundaries and allows for universal jurisdiction to be applied, meaning environmental offenders from countries that are not members of the International Criminal Court (ICC) can be arrested and prosecuted in ratifying countries.
In July, Belgium became one of the first Western nations to introduce a bill into parliament to criminalize ecocide within its borders and to support island nations Vanuatu and the Maldives in their quest to amend the ICC’s Rome Statute to include the crime of ecocide. The proposal by Samuel Cogolati, a Belgian MP who is part of the Green party (the second largest group in the House of Representatives), came on the heels of French president Emmanuel Macron’s public endorsement for establishing ecocide as a crime during the country’s citizen’s climate assembly this summer. If passed, Cogolati’s proposal will mark a significant milestone in Stop Ecocide’s mission. Belgium is one of few countries that already operates universal jurisdiction.
“A national law recognizing ecocide in Belgium could have an international impact on the prosecution of the worst polluters worldwide,” Cogolati says. “We are all victims of climate breakdown, pollution and the collapse of biodiversity. We must recognize the intrinsic value of ecosystems in our penal code and the ICC statute. Because without water, without forests, without clean air, we cannot survive on Earth. The planet is our common home. It’s time for criminal law to come to the rescue.”
Just a day before Cogolati introduced his bill, four young climate activists — Greta Thunberg of Sweden, Germany’s Luisa Neubauer and Belgium’s Anuna de Wever and Adélaïde Charlier — issued an open letter to EU leaders meeting in Brussels, urging them to treat climate change as a crisis and to support establishing ecocide as an international crime. The letter garnered support and was signed by thousands of people, including fellow activists, celebrities and scientists.
Recently, Thunberg was awarded the first Gulbenkian Prize for Humanity. She quickly pledged the prize money to various environmental protection groups, including more than $100,000 to the Stop Ecocide Foundation.
“A MORAL AWAKENING”
Another big visibility boost to the campaign came last November when Pope Francis, addressing the International Association of Penal Law in the Vatican, declared ecocide a “sin” and called for it to become a “fifth category of crimes against peace” at the international level. The Pope has often stressed that we are living in a climate emergency, warning that “we must take action in order to avoid perpetrating a brutal act of injustice towards the poor and future generations.”
Even with the high-profile support, many challenges lie ahead in making ecocide a crime. Some key obstacles are pre-existing economic relationships and economic mindsets, says Mehta, an example of the latter being the use of GDP growth as a measure without accounting for the planet’s finite resources. Earlier this month (3rd September) he received a special eco-delegation from France in the Vatican palace, which included Stop Ecocide Advisory Board member Valérie Cabanes, who was able to personally urge Pope Francis to build on last year’s call by using his diplomatic and spiritual influence with global leaders and the Catholic community worldwide. Francis described his own “ecological awakening”, declaring that “we cannot make compromises if we are to live in harmony with nature”.
Another barrier is the need for a shift in our collective cultural mindset, says Fr. Joshtrom Isaac Kureethadam, coordinator of the sector on “Ecology and Creation” at the Vatican Dicastery for Promoting Integral Human Development.
“A change of our lifestyles personally and collectively has to begin with a moral awakening, an ecological conversion. We need a true conversion of the heart. We need to examine our unsustainable patterns of consumption. We need to become aware that our addiction to excessive quantities of goods, comforts and services come at the cost of despoiling the atmosphere, forests and oceans, and exploiting the world’s poor,” Fr. Joshtrom says. “Otherwise, we will keep on deceiving ourselves with a bit of recycling and greenwashing while the planet and the poor continue to languish.”
We’ll need to put up a “united front in responding to the collapse of our common home,” he continues, and create a real sense of urgency that we are running out of time. How do we do that? By building up a critical mass of environmental activism from below, Fr. Joshtrom says, and the arrival of young climate champions in recent years on the global stage has made a “huge difference” in bringing these issues to light.
“We need to sustain them and come together from all walks of life: faith communities, civil society and all of people of good will,” he continues. “We cannot afford to continue to be silent or neutral when sinful human actions are destroying our common home and jeopardizing the lives of poorer communities and the survival of future generations.”
THE PATH FORWARD
You don’t have to be a world leader or a lawmaker or have legions of Twitter followers to make change. Whether it’s signing petitions (an international one is available on Stop Ecocide’s website), volunteering to pick up litter or choosing to support sustainable, local food producers, everyday citizens can further the goal of bringing balance back to nature.
“Spreading the word and expanding the conversation is what it’s all about right now, so that governments feel the pressure to declare support, just as happened with Macron,” says Mehta.
Cogolati, of Belgium’s Green party, agrees. “Nothing is more effective than citizen participation. I see that as an MP: all the letters and phone calls my colleagues receive from citizens really have an impact on the passing of climate-friendly laws. So please ask your local politicians to protect ecosystems, like the river that passes through your town, the oceans, the forests where you go walking. Ask them to support small local food producers who care about their land and animals. Ask them to invest in green renewable energy: it will create jobs, cut CO2 emissions and save lives.”
You can support the Stop Ecocide campaign too by joining the more than 17,000 people who have pledged to be Earth Protectors.
“I think we are seeing the beginnings of a snowball effect, as more and more people, from faith leaders to influencers, NGOs, lawyers and the public, realize the simplicity and power of establishing this crime,” Mehta says. “It’s already moved beyond being a ‘radical idea’ into the realm of serious state consideration. It’s only a matter of time before it’s perceived as simply a kind of course correction.”
She adds, “Everybody’s voice helps, everybody’s contribution helps, everybody’s action helps. And as the conversation around ecocide gets louder, the law to address it comes closer.”
Posted in accordance with Title 17, Section 107, US Code, for noncommercial, educational purposes
