Ecocide: Prosecute It Like a War Crime

Ed note: This interview is taken from the CIVICUS State of Civil Society Report 2021

CIVICUS speaks with Jojo Mehta, co-founder and Executive Director of Stop Ecocide International and Chair of the Stop Ecocide Foundation. The Stop Ecocide campaign seeks to establish ecocide as an international crime. To that end, the Netherlands-based Stop Ecocide Foundation works with international criminal lawyers, researchers and diplomats to develop an up-to-date, clear and legally robust definition of ecocide and advocate for states to propose an amendment to international criminal law.

How did the concept of ecocide develop, and what purpose does it serve?

The origins of the concept of ecocide go back around 50 years but it has only come to prominence recently. I co-founded the Stop Ecocide campaign in 2017 along with the late UK barrister Polly Higgins. We worked together for four and a half years until she passed away in 2019. We launched this campaign to continue the work that she had started years earlier to criminalise ecocide at the international level. The campaign sits at an interesting intersection where legal developments, diplomatic traction and public narrative meet. This allows us to both influence and amplify the conversation.

We use the term ‘ecocide’ to refer to mass damage and destruction of ecosystems. We see ecocide as the root cause or one of the key causes of the climate and ecological crisis that we find ourselves in. The destruction of ecosystems repeatedly and relentlessly committed by some of the world’s biggest corporations has exacerbated those crises. But this kind of irreversible damage has not been established globally as a crime, and therefore it is still largely permitted. A company can approach their government for a fishing, foresting or fracking licence or permit, get it and go on to produce a massive level of environmental destruction without much repercussion. In the world we live in, this behaviour is accepted, and the economy largely depends on such devastation. We believe it’s time to change the rules.

According to Nigel Topping, head of We Mean Business, a coalition of organisations working on climate change with thousands of the world’s most influential businesses and investors, in climate discussions we tend to focus on the economic players and what they do rather than on the fundamental rules allowing them to act that way. Criminalising ecocide would mean adding a ground rule to put ecosystem destruction beneath a global red line that is both moral and criminal. Bringing it into the criminal arena conceptually makes a large difference and creates a very different bottom line for businesses and corporations. Most environmental destruction is ultimately driven by corporations, so even if many of those corporations are sponsored by states, this makes this a corporate issue.

Ecocide is different from other world crimes in that CEOs care about how they are perceived, because their share price, public standing and investor confidence depend on it. By codifying ecocide in criminal law, we would create the potential for environmental criminals to be seen under the same light as war criminals, which is not good for business. If ecocide becomes a crime, investors, financiers and insurers will be forced to redirect their funds. Finance is like water; it flows through the path of least resistance. All the goodwill in the world will not stop finance from flowing into problematic environmental investments; it is up to us to shut down that path.

Why are you focusing your efforts on the International Criminal Court (ICC)?

One of the main reasons we aim for the ICC is that there is a set procedure for adding a crime to the Rome Statute, which governs international crimes. The ICC currently prosecutes four crimes: genocide, crimes against humanity, war crimes and crimes of aggression. If the crime of ecocide is added to the Rome Statute, the perpetrators of environmental destruction would be liable to arrest, prosecution and imprisonment just like war criminals are.

Ecocide is largely perpetrated by corporations, and we encourage all countries to legislate on ecocide within their own jurisdiction. However, there remains a lot of room for big companies able to hire expensive lawyers to work around those laws. Under international law, on the other hand, a corporation could be tried even if it is not prosecuted by the country where the crime was committed or the country where the perpetrator is from; any member state can invoke universal jurisdiction principles if they think the crime is serious enough. This creates a potential for enforceability that no other global mechanism can provide.

In order to have a law that applies consistently across borders, it makes sense to go through the route of the ICC. At the same time, it is important to start building a much larger consensus about what is lawful and what is not.

What would happen if ecocide was criminalised tomorrow?

If ecocide became a crime under international law tomorrow, it would be a disaster because nobody would be ready for it. Corporations would suddenly all become criminals and the courts wouldn’t be able to deal with them. So there would need to be a transition period.

But there is no risk that this will happen too soon, as the process involves several time-consuming steps. First, a state or group of states need to make a proposal. Second, a simple majority of countries needs to agree to discuss the proposal. Third, there is a lengthy process of negotiations among states to come up with the final text and adopt it. And finally, states have to ratify it. The last time the Rome Statute was amended, when the crime of aggression was added, it took seven to 10 years. We believe that for ecocide the process could actually be a lot quicker because there is far greater awareness of the problem and this is such a decisive decade regarding climate change and how we turn things around. Governments are waking up to these facts and the public is becoming more aware, so we estimate that the process could take about five years. It definitely won’t take the 20 years it took to get the Paris Agreement in place, because now the urgency is so much clearer.

What has the process been so far, and what have been its biggest achievements?

Polly Higgins had this epiphany in 2009-2010, when looking at the question ‘how do we create a legal duty of care for the earth?’. She realised that there is a relationship between rights and responsibilities, and that responsibilities need to be defined under criminal law. For instance, you can have a right to life, but if murder is not considered a crime, then your right to life is not really protected. You need to criminalise the damage in order to protect.

Based on this understanding, in 2010 Polly submitted a draft defining ecocide as a crime to the International Law Commission. This led to a lot of interest and a mock trial being held in the UK. But over time, she found [it] difficult to get support in the form of funding to move this forward. At the time, her proposal was viewed as extreme and drastic, and foundations saw the work as risky. This is advocacy work at the diplomatic level, which can be unpredictable. However, a growing number of people believed in this, and that is how the Stop Ecocide campaign was born. This happened in 2017. We soon realised that to get things done, we needed to crowdfund. As a result, the campaign took off. Within a month we raised enough money to send Polly and a team to the ICC. We were able to support small island states to send delegates too, starting with Vanuatu, our first ally.

The interesting thing about diplomatic advocacy is that key developments often cannot be publicised. We worked with Vanuatu for three years before they felt comfortable talking about ecocide and acknowledging our work. While the narrative on ecocide had already become very public, the core work of the campaign remained under wraps for a long time.

Given her role as a beacon, one of the major jumps experienced by the campaign sadly happened when Polly passed away. When she became ill there were many questions about what would happen if she passed, but what actually happened was very interesting. For years we were so tight on funding we had to work without a salary, but upon Polly’s passing there was an upsurge in support, including from people seeking to contribute to the campaign.

That is when I discovered that there were many lawyers and organisations in different countries who were really keen to work on this and had even been working on it, but had just not been working directly with us. Bringing together these people who were already players in this arena has been a massive dot-joining exercise. We realised that we could not work in our individual silos and started coordinating our work towards a common goal. In the case of the Stop Ecocide movement, there has been something very powerful about a single word – ecocide – bringing together the ways in which a lot of people understand what is happening in a lot of environmental arenas.

We have been helped by a surge of grassroots activism and mobilisation. Whether it is the school strikes inspired by Greta Thunberg or the actions by Extinction Rebellion in the UK or the Sunrise Movement in the USA, there is broad street mobilisation. This has pushed the conversation into the media and has echoed among governments. The climate and ecological crises are increasingly becoming a part of mainstream discourse, and a lot of it can be credited to public mobilisation.

The progress of Stop Ecocide has not been linear. In 2019, as Vanuatu became the first country to call for ecocide to be recognised as a crime at the ICC, the conversation jumped to the international level. Vanuatu was immediately echoed by the Maldives and other ICC members. Also in 2019, Pope Francis came out in favour of criminalising ecocide. In an address to the International Association of Penal Law, the Pope proposed that ‘sins against ecology’ be added to the teachings of the Catholic Church and proposed ecocide to be added as a fifth category of crimes against peace at the international level. The Vatican is therefore a significant supporter of this concept.

Some progress was also achieved in terms of country-specific implementation, notably in the case of France. French President Emanuel Macron stated that this is an international issue that should be addressed at the ICC, but France has attempted domestic law too. Following the gilet jaunes protests, which had been triggered by a hike in fuel taxes, President Macron convened a Citizens’ Climate Assembly, giving 150 randomly selected French citizens a mandate to discuss and propose policies for addressing the climate crisis. And the citizen’s assembly came back with the proposal to criminalise ecocide! If you ask the people, for most of them, criminalising ecocide is a ‘no-brainer’.

Since then, a law within France has been proposed. It is a very watered-down version compared to the Assembly’s proposal, but it still offered us the opportunity to create a buzz and have a broader conversation. As expected, the business sector put a lot of resistance and they got a little bit of their way, which showed why it is easier to win support for this at the international level. It’s easier for governments to do because they don’t have to act on it immediately, and from our perspective it is also better in the long term.

Six national governments have so far shown interest in including ecocide into their legislation or government programmes. There are also 11 states with parliamentarians interested in the definition we are working on. This is a key development because it is forcing us to come up with a definition that is usable for the ICC. To do this, we have convened a drafting panel of top international lawyers. The drafting process is now underway, and various advisory groups are feeding into it. We have provided key scientific reports about the global state of affairs, and are engaging with Indigenous groups from around the world to make their voices heard. This is key because 80 per cent of the world’s biodiversity is stewarded in Indigenous lands. We also plan to consult with faith groups and youth activists to get a full understanding of what this definition should take into consideration.

Looking back, what has been a fundamental challenge Stop Ecocide has faced and what does the future of Stop Ecocide look like?

A lot of the work we do is about narratives, getting the concept of ecocide out to build traction. When Vanuatu made its announcement in 2019, nobody would have known about it if we hadn’t worked to amplify it. Because it was amplified, it triggered the next level of the conversation.

Given the importance of amplifying the message and triggering new conversations, a major challenge for us has been media silence. For instance, in what was Polly’s last big event, which we held in The Hague parallel to the ICC assembly, we looked hypothetically at who could be prosecuted if ecocide were codified as a crime, and big companies such as Shell were named. We can only speculate as to why the media didn’t pick this up, but we can assume there is a lot of self-censorship. The media will avoid pointing fingers at such powerful forces.

We understood that this was a polarising issue and we were making powerful enemies. Going forward, what we need to do is get the big corporations to see the destruction looming and have them steer away. Some corporations such as BP have begun changing their ways, although many would argue that they are just putting on a ‘greenwashing’ act and question how genuine their commitment is.

For this to work, empowerment towards environmental change has to happen across the spectrum. It has to start from the grassroots level, work through the ranks of government and up to the corporate level. We need ecocide to be broadly spoken about globally, so reaching out to all of these arenas is extremely important. We need to get them all thinking about how they are going to deal with having a new ground rule in place.

Get in touch with Stop Ecocide through its website or Facebook page, and follow @EcocideLaw and @Jojo_Mehta on Twitter.

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