Ecocide: The missing crime against peace

This is a repost from http://katherineportilla.wordpress.com/

by Katherine Portilla

Deforestation

Deforestation is considered an ecocide crime (Photo courtesy of crustmania from Flickr)

Crime against peace

Deforestation, oil spills, and mining. According to Polly Higgins, these three things have one crucial thing in common. They are all acts of ecocide, defined as the extensive destruction of ecosystems.  Higgins is the founder of Eradicating Ecocide, a movement to make ecocide the fifth crime against peace. The four existing crimes against peace are genocide, war crimes, crimes of aggression, and crimes against humanity.

Response to increasing environmental pressure

Today, environmental issues are a common topic of discussion. In light of climate change and resource depletion we are facing increasing pressure to address our impact on our natural surroundings.

The ecocide campaign, lead by Higgins, advocates that ecosystem damage has a number of negative impacts on human and non-human life, including the heightened risk of conflict and the loss of cultural life. The team highlights a need for international mechanisms to hold perpetrators responsible for their actions, and to allow victims to claim compensation.

Older than you think

Hardly new, the concept of ecocide has been around since the 1970s. The Ecocide Project, an academic forum hosted by the University of London, is backing up Eradicating Ecocide’s cause by filling in the gaps of ecocide’s institutional history. Dr Damien Short, director of the project, comments on the challenge of their work:

“[Ecocide] had a significant past in the UN system, but the paper trial is incredibly difficult to work your way through.”

Dr Short and his team revealed that the United Nations examined the case of ecocide as a crime against peace through the 1970s-1990s. The idea was then shelved in 1996 without being put to vote, despite a number of countries objecting to its exclusion. The Ecocide project produced a free online report of their findings earlier this year.

A work in progress

Dr Karen Hulme, director of the Essex Law Clinic, tries to give some explanation as to why the concept was dropped.

“There were a lot of issues with terminology and the notion that states could commit crimes,” she says, referring to the Draft Ecocide Act. “Crimes are committed by people not states.”

The Act also refers to ecocide as an action performed by ‘human agency or by other causes’. Dr Hulme comments that for an action to be considered a crime, a human has to be involved. Otherwise, it would be difficult to link the action to a particular state. This ambiguity makes it unlikely that this definition would be adopted in an international law. She suggests that the notion of ecocide might be more appropriate for a treaty rather than an international crime.

International jurisdiction

Dr Hulme also doubts whether the International Criminal Court (ICC), which enforces the existing crimes against peace, is the appropriate mechanism to prosecute ecocide. The persecution of Nazi war crimes and illegal drug trade partly motivated the establishment of this relatively young institution. The ICC was set up to deal with crimes against people and by people.

“International law works best and is really provided when states can’t handle it themselves,” says Dr Hulme. She points out that many states already have good environmental protection protocols in place. Meanwhile, others could simply refuse to give consent to a treaty if they knew they were in breach of it. For example, oil sand extraction in Canada is seen as highly polluting and is considered ecocide. Dr Hulme points out that in this case, it is likely that Canada would be hesitant in signing any type of ecocide treaty that would then prosecute them.

In reality, ecocide is already an international crime during wartime. However, during peacetime no such crime exists. Higgins and her team are trying to close this legal loophole.

Growing voice

The idea of ecocide is gradually becoming more mainstream. This is largely due to strong advocacy efforts by the various ecocide projects already mentioned. On September 30, 2011 a mock ecocide trial was held at the UK’s supreme court. Real lawyers, judges and a public jury found CEOs of fictional fossil fuel companies guilty of ecocide. “It was very good for raising the ecocide profile and getting the ideas across,” comments Dr Short. Sky News broadcast the trial worldwide on the Internet.

Higgins had the opportunity to speak about ecocide at the United Nations Interregional Crime and Justice Research Institute (UNICRI) International Conference on environmental crime, which took place last October. Following the two-day discussion, UNICRI and the United Nations Environment Programme (UNEP) announced that they would head up a study into the definition of environmental crime, and would look into suggesting new laws.

Challenges in support

“One of the biggest challenges in the short-term is to get a head of state to speak out,” says Louise Kulbicki, Eradicating Ecocide’s Legal Coordinator.

An amendment to the Rome Statute, which defines the international crimes against peace, requires one head of state to call for an amendment and then a further 80 to agree.

Eradicating Ecocide has gained a number of supporters including environmentalists, peace organisations, the legal profession, and some politicians. However, no government has gone public with their support yet.

WISH20 is a campaign by Eradicating Ecocide that aims to end ecocide by 2020. Both Dr Hulme and Dr Short comment on this target with scepticism. “Whether or not, politically speaking, it is realistic by that date is hugely debatable,” says Dr Short. However, he is optimistic about getting ecocide back into the UN agenda. “If you can make people see that it hasn’t just fallen from the sky in the past ten years or so, but that it has a history that goes back to the early 70s, it adds strength to the fact that ecocide is a serious possibility as a law within the international arena.”

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