What counts as ecocide?

Anything that causes mass damage, destruction to or loss of ecosystems. 

Why is ecocide referred to as a Crime Against Peace?

Damage, destruction or loss of ecosystems leads to resource depletion, which in turn leads to conflict and ultimately war. Sir David King, ex-chief scientific advisor to the UK government, warns of the 21st century being a century of resource wars, where we will be fighting for the last remaining resources, in particular water and oil. Some say that such wars have already happened.

In fact, during war-time, damage and destruction of the environment is taken very seriously.  During war it is a crime to cause ‘widespread long-term and severe damage to the natural environment…’. This crime has prevented the escalation of chemicals used for warfare, for instance. The prohibition of such damage should not be merely confined to war-time, but also to peace-time.

What is meant by ‘human agency or by other causes’?

Ecocide caused by human agency is ‘ascertainable ecocide’. Here, an individual responsible for the activity which has resulted in ecocide can be identified.

Other causes are external events; what is referred to in law as a force majeure or an ‘act of God’, such as flooding or an earthquake. Such events can be termed ‘non-acertainable ecocide’ as no one perpetrator can be identified.

Thus, the definition for ecocide sets out two types of ecocide – acertainable and non-acertainable ecocide. Non-ascertainable ecocide describes the consequence, or potential consequence, where there is destruction, damage or loss to the territory per se, but without specific identification of cause as being that which has been created by specific human activity eg. destruction caused by hurricane, volcanic activity, rising sea levels.

Ascertainable ecocide describes the consequence, or potential consequence, where there is destruction, damage or loss to the territory, and liability of the legal person(s) can be determined. The destruction of large areas of the environment and ecosystems can be caused directly or indirectly by various activities, such as nuclear testing, exploitation of resources, extractive practices, dumping of harmful chemicals, use of defoliants, emission of pollutants or war.

It is ascertainable ecocide that is proposed as an international crime. However, for the purposes of law, non-ascertainable ecocide can still be actionable in certain cases where a duty of care exists for territories that have been subject to, or are at risk of, ecocide. For instance, where trust obligations exist.

Why use the term ‘peaceful enjoyment’?

It is a well used term in law (sometimes also referred to as ‘quiet enjoyment’). This term has its roots in the civil laws of nuisance where a legal responsibility has been breached (the breach for ecocide is the act of damaging, destroying etc). It applies to those who have rights over land or possessions (in the case of ecocide, usually a corporation). The law of ecocide would impose the corresponding responsibility to ensure that the inhabitants’ right to peaceful enjoyment is not breached.  For more information on the law of nuisance, see here.

Ecocide applies to activities during peace time. What about environmental damage and destruction committed during war time?

During war any widespread, long-term and severe damage to the natural environment is deemed to be criminal and subject to imprisonment for committing a War Crime (Article 8(2)(b)(iv) of the Rome Statute).  Activities such as Saddam Hussein releasing oil into the Persian Gulf and setting oil wells aflame during the first Gulf war (1990 -1991) could have been potentially subject to criminal prosecution under the Rome Statute, had it been in force at that time (the Rome Statute, which governs the crimes which can be prosecuted by the International Criminal Court came into existence in 2002. The ICC does not prosecute retrospectively). Given that environmental damage of a certain size, duration and severity is illegal during war, it makes sense that it applies equally to peace times.

What would constitute ecocide in terms of size, duration and severity?

Existing laws of war help us here as well, and can be extended to peace-time activities. The 1977 United Nations Convention on the Prohibition of Military or any other Hostile Use of Environmental Modification Techniques (ENMOD) specifies the terms “widespread”, “long-lasting” and “severe” as

(a)    “widespread”: encompassing an area on the scale of several hundred square kilometers;

(b)    “long-lasting”: lasting for a period of months, or approximately a season;

(c)   “severe”: involving serious or significant disruption or harm to human life, natural and economic resources or other assets.

Would people found guilty of ecocide be put in prison?

It depends on the judge and the severity of the damage or destruction caused. We advocate that restorative justice is a far more practical solution, where the people who are found guilty are brought to the table to be part of the process of deciding how they can contribute their time to help restore the damage caused. In this way, we can change the problem into the solution.

What are Earth Rights and why are they important?

Earth rights are the legal tools to protect the Earth. Many cultures have believed for centuries that the Earth has her own rights; this is a relatively new concept in the western world. We have somehow forgotten that the water we drink has the same right as we do to be free from pollution, the earth we walk on has the same right as we do to life, the air we breathe has the same right as we do to a clean and healthy environment.

In 2008 Polly Higgins was invited by the UN to address them on an idea she had: a Universal Declaration of Planetary Rights. It was a radical idea then. Now the final outcome is the Universal Declaration of the Rights of Mother Earth which Bolivia is committed to making into international law. This has been the culmination of many people’s input. In April 2010 35,000 people went to Cochabamba to hear more about this proposal and others. It was a historic event. You can read more about it here. Rights however are just half the equation.

Just as our human right to life is protected by the crime of murder and on an industrial scale, the crime of genocide, so too does the Earth’s Right to Life require the crime of ecocide. The two sit side by side. Rights in isolation do not ensure governance of breaches of responsibilities – the breach has to be named before it can be brought to justice. By giving mass damage destruction and loss of ecosystems legal definition we can close that door to the killing of the Earth. This is a world that deserves to live!

Is ecocide a climate change law?

Climate change is a (contested) symptom arising from ecosystem damage. The crime of ecocide is legislation to prohibit extensive damage, destruction or loss of ecosystems.  By prohibiting large scale damage and destruction to ecosystems, climate change will be abated. Soils, seas, trees, animals, fish, humans, the atmosphere – these are just some of the species affected within a given ecosystem that are being damaged.  In this regard, ecocide is both humanitarian and environmental in remit – a people and planet law.

Is global warming a determining factor in contributing to defining ecocide as a crime?

No. For the purpose of the definition proposed, global warming (the increase of the Earth’s temperature) may or may not be considered a contributory factor but it is not determinative of whether ecocide has been caused. Global warming is speculative (based on scientific readings of possible future outcomes), whereas ecocide is based on fact: whether damage, destruction to or loss of ecosystems has taken place in a given territory.

Can climate deniers be prosecuted?

No. Ecocide is a proposal for an international international law premised on fact, not opinion. Extensive damage, destruction or loss of ecosystems is something that is based on evidence. To be a climate change believer or denier is a matter of opinion that each of us is entitled to conclude.  Ecocide could not be used to prosecute climate deniers.

Can ecocide be compared to genocide in terms of severity of crime?

Yes. Tragically, millions of people have lost their lives because of genocide, this we know. Destruction of large areas of the environment and ecosystems can be caused directly or indirectly by various activities, such as nuclear testing, exploitation of resources, extractive practices, dumping of harmful chemicals, use of defoliants, emission of pollutants or war.  What is less well understood is that such damage and destruction brings with it death to many millions of humans (which are just one species) as well as destruction, loss or damage of many other species, ecosystems, biodiversity and species habitat. For instance, globally, two million tons of sewage, industrial and agricultural waste is discharged into the world’s waterways and at least 1.8 million children under five years-old die every year from water related disease, or one every 20 seconds. See: Sick Water? A Rapid Response Assessment. UNEP, UN-HABITAT report, 2010

Is ecocide the same as genocide? Isn’t it wrong to compare the two?

Both are crimes against peace. Genocide is a crime that protects the human right to life and ecocide is a crime that protects the Earth’s right to life. There is a crucial difference between the two: whilst genocide is a crime of intent (the intent to kill humans), ecocide is a crime of consequence (there is often no intent, rather the destruction is secondary to other drivers).

Is ecocide about putting nature’s needs above people’s needs?

No. A law of Ecocide places people and planet over and above profit. Profit per se is not a problem, but profit that leads to death or injury to life of people and planet cannot be justified.

Is ecocide anti-capitalism?

No. Ecocide is pro-profit that does not cause mass damage and destruction.

Wouldn’t a law of ecocide damage economies and increase poverty?

A law of Ecocide will increase health and well-being for all beings. It will provide the legal governance which will act as a disruptor to the existing paradigm, by shifting companies from the “polluter pays” principles to “the polluter doesn’t pollute.” Ecocide law will in effect create a “think before you act” pre-emptive obligation. In so doing, the flow of money into damaging practices will be halted in it’s tracks. The green economy will have it’s floodgates opened and the flow of money will drive clean business investment and stimulate economies overnight. 

Is this law anti-corporate?

No. This is not about stopping corporate activity, nor is it about stopping profit. It’s about stopping activity that is damaging and stopping profits that arise from illegal plundering on a mass scale. This law is about corporations taking responsibility. It is about putting in place a pre-emptive obligation, a duty of care to prevent ecocide from happening in the first place. The corporations who in the course of their activities cause enormous ecocide, or are at risk of causing huge ecocide must now become accountable for such activity.  By making ecocide related activities criminal, business will be under enormous pressure to prevent such activity taking place.  CEO’s and directors of corporations will not wish to make decisions that will render them at risk of conviction, heads of banks will no longer want to sanction the funding of criminal activity and governments will not want to be seen to be making policy decisions which promotes such criminal activity. Innovation, finance and governmental support will by neccessity flow in the other direction. These corporations will then become clean companies, banks will finance non-damaging activities and governments will create planet-friendly policies. This is about corporations turning rapidly from being the problem to being a big part of the solution.

Is overpopulation the big problem causing ecocide?

It is not so much numbers of people that cause ecocide but the decisions of a very few people at the top that can lead to ecocide. In international crime, the principle of ‘superior responsibility’ takes those who are in a position of superior responsibility to task and imposes a duty of care on those few top people who make decisions that affect civilisation as a whole. That means that Heads of State, CEO’s and Directors of companies and banks are the ones who have enormous power to determine what the rest of civilization does and it is those people who have the power to stop the ecocide.