law of ecocide
interview with polly higgins
Interview with Paul Gregoire
the athabasca tar sands are the most damaging project on the planet. located in alberta canada, the tar sands are the largest deposits of crude bitumen in the world. the extraction of this ‘dirty oil’ is excessively destructive and will eventually result in the loss of boreal forest and wetlands the size of england.
this project is an example of ecocide and in fact, takes the coveted position of number one in the list of top ten ecocides in the world.
ecocide is the excessive damage to or loss of ecosystems in a territory, caused either by humans or other forces, to the extent that the lifestyle enjoyed by the inhabitants is diminished.
polly higgins coined this current take on ecocide. she’s made it her mission to get ecocide recognised as an international law.
a barrister, who once represented transnational corporations, higgins found she got along with those she was representing but at the same time they were involved in activities causing environmental devastation.
higgins came to the conclusion there was something terribly wrong and that this was being caused by the current laws that put profits first. she had a light bulb moment when she realised that the destruction of ecosystems should be recognised as a crime and an international law of ecocide need be established.
powder caught up with higgins on the ecocide campaign trail to see how things are panning out.
you’ve been working to have ecocide recognised as an international law. is it a concept that you thought up or has it been around longer?
I submitted a legal definition into the United Nations World Commission back in 2010 to make it an international crime. But the discourse around it being an international law arises from the 1940s. In fact, it was in the 1940s when genocide was being drafted up as a crime and the lawyer who proposed that also proposed that ecocide be made a crime because in his opinion ecocide can lead to a slow genocide. If you think about the Athabasca Tar Sands what we are seeing is escalating rates of cancer for instance.
the rome statute established the international crime court (icc). what’s outlined in the statue?
So the Rome Statute codifies the existing international crimes against peace: genocide, war crimes, crimes against humanity and the most recent one, crimes of aggression. When it was being drafted ecocide was drafted in for the period of eleven years and at the eleventh hour it was removed in 1996. When I proposed to the United Nations that the Rome Statute be extended to include ecocide, I hadn't appreciated that actually it was meant to be there.
who did you approach with the idea to have ecocide established as an international law?
I submitted it to the UN Law Commission and that was in the end of March, 2010. I'm saying just expand the limits of the International Criminal Code because this is something that actually should have been there in the first place. So it's a simple amendment, we're not looking for a whole new treaty or convention.
ecocide is the destruction of the environment but you want it to be recognised as a crime against peace. how can this be?
How this works is international crimes are collectively known as crimes against peace. This is codified in the Rome Statute. They act like umbrella legislation and umbrella laws that supersede and take primacy over ever other law in the world, so you can't create laws that override genocide for instance.
They’re known as the international crimes against peace because what was recognised in the Rome Statute was that it was the crimes of most significant concern for humanity. The inference is that they're more significant for humanity as a whole and obviously threaten our ability to live in peaceful enjoyment on this earth.
if ecocide does become an international law, what will its impact be?
Actually it's going to have profound consequences. It has huge implications for humanitarian reasons. It’s often known as a law that will create governance for our human right to life as well as nature's right to life, but also this is really about corporate crime.
It's about identifying that which is causing significant harm and saying ok we can no longer go there. Also finance can't go into it, that would be a criminal activity. Policies of a government, if they contravene an international crime of ecocide, will be unlawful as well.
So this has huge implications for triggering a green economy. It sets out the international legislative framework that prioritises by law and gives a legal mandate for governments to preach first and foremost innovation in the other direction. That's hugely powerful, not just at a governmental level but also on a financial level as well, this is about the flow of finance.
What do we invest in? Where does our money go? What do we continue with and what do we no longer continue with? How do we help these companies that are now looking at activities that are going to be outlawed and how do we help them turn the corner so that the problem becomes a solution?
I propose a five year amnesty, where we give assistance to those companies because it's not going to help anyone if we just start closing down companies.
how do you expect powerful people and businesses to stop what they are already doing and is making them a lot of money? do you really think any of these companies actually care or want to make a change?
Lord Browne did in 2005. He took BP, he actually changed the name to Beyond Petroleum, because he wanted to make it all renewable.
Now he actually couldn't do that for a number of reasons, the main one was because there were no international laws in place to prioritise that, because it was going to be exceptionally damaging for the shareholders and therefore BP was no longer going to end up financially competitive. It's actually very difficult for these big companies at the moment to move out of what they are doing because there is no legislation to enable them to. They are driven by laws that say they have to put the interests of the shareholders first, which means putting profit first.
if it’s made a law will we see a lot of companies being summoned into the icc to be prosecuted for crimes of ecocide?
It's not companies that will be prosecuted. It's individuals, those at the very top that make decisions that adversely impact millions of people below, so this is directors, this is heads of state. This is heads of banks, who are actually signing off the money going into something that's causing ecocidal activities. You'll be penalised but you as an individual rather than just being given a fine.
you define ecocide as destruction of the environment not just by people but by other forces. why say that ecocide has been carried out by something not human, as you can’t take these forces to court?
A naturally occurring ecocide, so if we take an example of rising sea levels, that's a naturally occurring ecocide. So say for instance an island is going underwater then it becomes a legal duty of care for all nations to come together to give assistance before they go underwater. Those nations that won’t come on board and give help then they could be prosecuted. They could be held to account for failure to give assistance.
In fact this is about opening up what's known as the Trusteeship Council of the United Nations, which actually was put in place as one of the founding pillars of the United Nations to help Non-Self-Governing Territories, in the days when we had colonies. When countries withdrew from colonies suddenly these countries could no longer self-govern and they needed help so it was set up under Trusteeship Principles, which means you don't make money out of it, you do it because you've got a duty of care and all countries come together and work out what to do to help.
I'm saying if you create a legal duty of care, producing a duty under the law of ecocide you can reopen that Trusteeship Council because what happens when you go underwater is you're no longer self-governing, you need help, you need the international community to come and give assistance.
what’s an example of ecocide happening in the world today?
I think the largest ecocide we have playing out at the moment is the Athabasca Tar Sands in Canada, which is the size of England and Wales, huge tracts of land that is being destroyed. Ancient boreal wetlands and forests are being destroyed for want of a bit of energy for a period of forty years or so. That's a very good example of excessive damage and destruction to an ecosystem.
The thing is that the companies involved there, there's no intent, it's not usually a crime of intent, the companies don't say ok what can we destroy, in fact they are driven by their legal duty which is to put the interests of the shareholders first which means to make as much money.
A law of ecocide would create the governance structure for these companies, instead of being the problem they actually become the solution. They need to turnaround.
how long have you been campaigning for?
It's coming up to four years actually. It's been taken into every country in the world. A group of nations came together two years ago for a concept paper. How fast can we implement this? And this can be fully operational by 2020. It all comes down to political will. So that concept paper was taken into every country in the world and as a result, in the last two years, 54 governments have come back asking for legal advice. There's a recognition it's an idea that's kind of come and could solve a lot of problems that we're facing.
is your campaign making progress?
There's a lot of engagement around it, a lot of conversations happening behind closed doors. I think what's really required here is more of a public mandate, to come from the public.
what do you see as the next step?
Well the interesting thing is next year there’s a review conference of the Rome Statute and really there's no reason why this shouldn't be tabled. This is really about a Head of State or a group of countries coming together and saying ok we want this tabled.
how many countries would you need on board to make it happen?
It needs a two thirds majority of the signatories to the Rome Statute. There are currently 120 countries who are signatories, so that's 82 state parties. The important thing is to get the ball rolling because it's just a numbers game after that. Once you've got one signing on then it's just a matter of building on that.
So there's interesting stuff happening here and we've got a window of opportunity happening next year.
check polly's site