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Brussels, 2 November 2020

Dear Members,

As we heard at the annual conference in an intellectually stimulating and, for me at least, deeply moving lecture by Professor von Bar, in at least you cannot see the law in isolation from our system of values.

Our law-based society is an which cannot survive if we destroy or allow others to destroy the natural environment in which we humans deploy our activities. The law is not value-neutral and I make no apologies for raising this question which some may regard as excessively political.

I have a story to tell and a proposal to make.

Polly Higgins died aged 50 of an aggressive on Easter Day 2019.

A British barrister, she led a decade-long campaign for “” to be recognised as a against humanity. She sold her house and gave up a well-paid job to dedicate herself to attempting to create a law that would make corporate executives and government ministers criminally liable for the damage they do to .

On her website Higgins wrote: “There is a missing responsibility to protect … What is required is an expansion of our collective duty of care to protect the natural living world and all life.”

Anyone who has reached my age cannot help but compare the world in which he or she grew up, with the world as it is now. As long ago as 1962, Rachel Carson published a book entitled Silent Spring documenting the adverse environmental effects caused by the indiscriminate use of pesticides. Carson accused the chemical industry of spreading disinformation, and public officials of accepting the industry's marketing claims unquestioningly.

For my part, I remember the countryside in my native Devon when I was a child, pullulating with life, this is no longer the case; five years ago, our garden in Le Marche was full of bees and horseflies and wasps were a constant menace, this year there were few.

Many scientists consider we are living through the Sixth Mass .

When Polly Higgins started her campaign to make to make ecocide an international crime, scepticism about was still rife. Now, its effects are palpable and growing, and the latest manifestation of humans’ interference with the natural world and the wanton destruction of habitats and wildlife for gain is the Covid and the wilful destruction of the in . Right now, a superannuated Japanese oil tanker is breaking up, and people are desperately trying to minimise the damage to the sands, reefs and wildlife of Mauritius. The law is about dissuasion and I strongly believe that we as lawyers should be taking a close look at the merits of Polly Higgins’ proposals as law and as a potential deterrent to corporations, holders of corporate office, managers and members of government.

As you know, the Statute is the treaty that created the International Criminal Court or ICC. It was adopted on 17 July 1989 and became effective on 1 July 2002.

The ICC has jurisdiction to prosecute individuals for international of crimes against humanity, war crimes, genocide and aggression. Currently, 122 countries are State Parties to the Rome Statute and the International Criminal Court.

To amend the Rome Statute, a State Party has to submit the text of its proposed amendment to the Secretary-General of the , who circulates it to all States Parties. The States Parties then vote on whether to take up the proposal. If the proposal is taken up, the amendment can be referred to a review conference, or to a vote by the Assembly of States Parties. If a two-thirds majority of the States Parties vote in favour, the amendment is adopted. No country has a veto, and the votes of small countries have the same weight as larger countries.

In April 2010, Higgins put a proposal to the UN Law Commission designed to amend the Rome Statute to include “ecocide” as a fifth .

She defined ecocide as “the extensive destruction, damage to or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished.”

The crimes against peace defined in Article 5(1) of the Rome Statute are:

1. The Crime of Genocide 2. Crimes Against Humanity 3. War Crimes 4. The Crime of Aggression

According to her website, the inclusion of ecocide law as a crime under would create a legal duty of care for all inhabitants that have been or are at risk of being significantly harmed due to ecocide.

It is worth noting that ecocide is already a crime in wartime, since Article 8(2)(b)(iv) of the Rome Statute provides that it is a crime to “intentionally launch an attack in the knowledge that such attack will cause…widespread, long-term and severe damage to the natural environment…”

Higgins later expanded her definition into a model law.

She initially proposed that ecocide should be a crime of strict liability, but she later took the view that intention, recklessness or negligence should be required. The model law is directed against acts or omissions which cause extensive “damage to, destruction of, or loss of human and/or non-human life to the inhabitants of the territory” where “inhabitants” include “indigenous occupants and/or settled communities of a territory consisting of one or more of the following: (i) humans, (ii) animals, fish, or insects, (iii) plant , (iv) other living organisms.”

In September 2011 Polly organised a mock ecocide trial in the Supreme Court in London to road-test the draft Ecocide Act (UK). The mock trial assumed that the law had already been enacted and so enabled it to be applied and examined from a number of angles to establish whether or not it was viable. This was the first time that a law not yet on the statute books had been tested in such a way.

The trial was not scripted but unfolded in the same way as a real trial; there was a properly vetted jury, Michael Mansfield QC and his legal team prosecuted, and Christopher Parker QC and his legal team defended.

On 15 October 2016, a civil society held a mock international tribunal of Monsanto at the Hague, eventually finding the company liable for the crime of ‘ecocide

In 2014, the group “End Ecocide on Earth” presented 170,000 signatures to the European Parliament in support of a EU Directive against ecocide.

In 2018, the ambassador of to the EU stated that he supported the call for ecocide to be made into a crime under international law and Vanuatuan foreign minister Ralph Regenvanu stated that he would propose that the Vanuatuan government take the proposed ecocide amendment forward to the ICC.

In the very recent period, the Pope has also come out in favour of ecocide as a fifth crime against peace.

President Macron is also in favour.

I would note in passing that for some time before its adoption, the draft Rome Statute did in fact make provision for the crime of ecocide. Certain European States contrived to exclude it.

Polly Higgins’ proposals are not only of great political concern, they also raise extremely interesting legal questions.

ELI, in my view, ought to be considering this question in order to take a fresh look at her proposal to amend the Rome Statute and at her idea of drafting a model law.

There is a great deal of material out there – Polly Higgins was not the first or the only lawyer to put forward the idea of ecocide as an international crime. Professor Laurent Neyret and his collaborators, in particular, have made a detailed analysis of the question and put forward punctiliously detailed proposals. This means that it would be a comparatively simple matter to produce a feasibility study, although this is not to underestimate the legal difficulties. Following the last Council meeting, it has been decided to form a group to draw up a feasibility study on ecocide, Professor Fausto Pocar, Robert Bray, Mark Clough, Laura Guercio and Ilaria Pretelli, with Femke Wijdekop, of Stop Ecocide NL, would invite interested members to make themselves known to the Secretariat. Suggestions for outside experts would also be appreciated.

I would urge those amongst you who have an interest in criminal law, international criminal law and to make themselves known. I am not personally holding myself out as a reporter as this is not my speciality but I am prepared to put my shoulder to the wheel.

Best regards,

Robert Bray

I am grateful to the following: https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1814&context=elr http://blog.uclm.es/repmult/files/2019/12/EcocideGB-072016.pdf https://ecocidelaw.com, along with George Monbiot’s obituary for Polly Higgins in the Guardian and Polly Higgin’s website, where JoJo Mehta and her team continue her crusade.