Ecocide: The growing movement to prosecute polluters like war criminals

Amid a year of devastating events linked to the climate crisis, momentum has been building to make ecocide - the widespread, severe or systematic destruction of our planet - an international crime on par with war crimes, genocide and crimes against humanity. 

This month a panel of top international and environmental lawyers from around the world begin drafting a legal definition of ecocide, with the goal of having it included on the statute of the International Criminal Court (ICC) at The Hague in the coming years.  

Jojo Mehta, chair of the Stop Ecocide Foundation, told The Independent that interest in the issue has soared, partly due to the global climate protests. 

“What's been powerful in shifting the discourse has been the civil mobilization in the last year, whether that's Extinction Rebellion, Sunrise Movement, the school strikes,” Ms Mehta said. 

"That grassroots pressure has widened the window of what the media will cover and effectively pressurized governments into actively discussing the climate crisis.”

She added: “But the other thing is that the consequences of serious ecosystem destruction are becoming ever more obvious, and more apocalyptic, with fires, droughts, floods. It's that tragic thing of people not hearing it until they can see it in front of them.”  

Climate extremes in 2020 have been painfully clear: Unprecedented wildfires around the world, more evidence of sea ice decline, back-to-back hurricanes in the Atlantic and record high temperatures.

More than a third of all emissions worldwide since 1965 have come from the 20 largest oil, natural gas, and coal companies, the Climate Accountability Institute reported last week, and the blame largely lies with the developed world. The emissions of the planet’s richest 1 per cent account for more than twice the combined share of the poorest 50 per cent, the latest UN Emissions Gap report found. 

Legal challenges over the climate crisis have been filed across six continents, totaling more than 1,600 cases. The vast majority are from the US, followed by Australia, the UK, EU, Canada and New Zealand.

But there is currently no way to hold any parties criminally accountable. And that’s what ecocide activists, their legal supporters, and a growing number of prominent figures are determined to change. 

While many countries have environmental laws and regulations, making ecocide an international crime could act as a deterrent in a way that those measures do not.  

Ms Mehta says: "We're ultimately trying to change practices so that we're stopping the harm. The real focus is creating a deterrent, and criminal law can do that in a way that civil litigation simply can’t.

"With civil litigation, companies just budget for it. But criminal law is not like that. For a start, it's a lot more scary because it's actually about individuals.

"A CEO doesn't want to be seen in the same bracket as a war criminal, frankly. And if a CEO is basically described as a war criminal, then that's going to directly affect business.”

Pope Francis last year called on the international community to recognize ecocide as a “fifth category of crime against peace”.  

In July, Greta Thunberg donated €100,000 to the Stop Ecocide Foundation, while Prince Harry and wife Meghan used the term to describe the devastating Australian bushfires. 

French president Emmanuel Macron promised to champion the enshrining of ecocide in international law at a meeting with climate activists in June, and used the term to describe the burning of the Amazon rainforest. 

The Belgian government pledged support in October while last week, Finland’s foreign minister Pekka Haavisto sent words of support to a side event on the issue during the ICC’s annual meeting. The ecocide drafting panel was assembled by the Stop Ecocide Foundation at the request of several Swedish parliamentarians. 

Another driving force has been small-island nations, like Vanuatu in the Pacific and the Maldives in the Indian Ocean, who face a perilous future due to sea-level rise linked to climate change.

Vanuatu’s ambassador last year called on the ICC to give “serious consideration” to adding ecocide to the Rome Statute, which established the ICC’s remit.

The recently convened drafting panel is being led by Prof Philippe Sands QC, of University College London, and Justice Florence Mumba, formerly of the ICC, and now a judge at the Extraordinary Chambers in the Courts of Cambodia, also known as the Khmer Rouge Tribunal.

The panel plans to complete their work in early 2021. Defining ecocide is the first step in being able to propose it as a crime to the ICC. A proposal would ideally come from a group of states, Ms Mehta says, those “at the sharp end of climate change… but also a couple of bigger economies. There needs to be a demonstration that it’s not an isolated thing and that everyone is acknowledging something needs to be done”.

In 2016, the ICC, known as the “court of last resort”, said it would widen its remit to crimes that result in the “destruction of the environment”. 

It would do so, the court said, by looking at crimes against humanity in a broader context but so far, no charges relating to environmental offenses have been brought. The ICC, set up in 2002 and backed by the United Nations, has focused on genocide and war crimes. 

Ecocide campaigners say that a standalone crime is needed as “most ecosystem destruction happens in peace-time and does not always affect humans directly”.

One of the key aspects of the drafting panel will be to figure out what ecocide means. 

An early definition was submitted to the UN Law Commission by Polly Higgins, the late Scottish barrister who led the battle for ecocide to be recognized as a crime against humanity. 

“Ecocide is extensive loss, damage or destruction of ecosystems of a given territory(ies)… such that the peaceful enjoyment of the inhabitants has been or will be severely diminished,” she wrote in 2010.

And once it’s defined, what could count as ecocide? Ms Mehta says that the intent is to focus on mass destruction, "not not just chopping down the trees on the village green”. 

Some practices which could be potentially considered ecocide include industrial fishing with its deep-sea trawler practice of dredging the ocean floor which decimates ecosystems; oil spills - like the catastrophic Deepwater Horizon spill off Louisiana in 2010 which is still having impacts today; and the rampant plastic pollution which has invaded all corners of the world.

Other suggestions include industry-caused air pollution, fracking, the pollution of soils, rivers and insect populations with industrial chemicals and radioactive contamination from nuclear plant leaks.

However linking pollution or environmental damage with polluters is potentially tricky, according to Kate Mackintosh, executive director for the Promise Institute for Human Rights at UCLA School of Law and member of the panel.

"Some of the challenges in establishing such a law lie in the relationship between the destructive acts and the human harms, as well as the time it can take for that harm to manifest," she told Mic.

Ms Mehta admits that, while climate activists may groan at the timescale which typically accompanies a sea change at the international level, time is what is needed. 

“If you want to take the whole world with you, you’ve got to have transition time,” she said. 

"Putting a proposal on the table is just the beginning but it creates a kind of compliance period. Because if something's about to be made a crime, you can't finance it, can't insure it. If it’s on the horizon, then insurers, investors will start putting portfolios in different places.

She added: "The point is, how do we accelerate to a genuinely sustainable approach? At the moment, most treasury departments around the world are still aiming for GDP growth. And it's not possible, we all know that now. 

“We don't kid ourselves that ecocide law is the panacea for everything. At the same time, without some kind of rule like this in place, it's difficult to see how, for example, the Paris Agreement targets or the [United Nations] Sustainable Development Goals can be met. The finance keeps flowing where there's no resistance.”