S Protecting the planet after Rio – the need for AL HARM a crime of ecocide ENT M Polly Higgins, Damien Short and ON Nigel South propose a way forward to deal with climate change and environmental VIR N deterioration E n March 2012 the Organisation affecting the environment. These for Economic Co-operation and need to be responded to through Photo courtesy of Kim McMahon IDevelopment (OECD) issued a both informal and formal means of stark warning; carbon dioxide resolution and restoration, emissions from energy use are underpinned by an internationally 120 states are party to the statute. expected to grow by 70 percent in applicable legal framework. Among other things, the statute the next 38 years because of our Criminology has often played a establishes the functions, jurisdiction dependence on fossil fuels. As a crucial role in ensuring law is and structure of the ICC but limits result, by 2100 the global average appropriate to its time and that it to being able to investigate and temperature will have increased entitlement to rights and justice is prosecute only the core international between 3 and 6 degrees Celsius, in fair and comprehensive. It does so by crimes – known as the four crimes turn causing melting ice, rising sea questioning the ‘taken for granted’ against peace (genocide, crimes levels and an increase in major nature of definitions and against humanity, war crimes and storms. The classifications of the crime of aggression) where states burden on Small crime, deviance are unable or unwilling to do so Island States is Problems of and harm, offering themselves. The proposal to add a quite literally alternative crime of Ecocide starts with defining unquantifiable climate change and proposals about it in the following way: ‘Ecocide is (Ghina, 2003). environmental damage where concern the extensive damage to, destruction Risk of injury or and regulation of or loss of ecosystem(s) of a given harm to human may be approaching a should be territory, whether by human agency and non-human directed (Passas or by other causes, to such an extent life is real and tipping point and Goodwin, that peaceful enjoyment by the immediate. A 2004). A ‘green inhabitants of that territory has been wide range of criminology’, severely diminished’. human activities imperil the planet, concerned with the creation of The case for making Ecocide the our environment and other species. effective systems for the 5th international Crime against Peace The World Wildlife Fund estimates administration of environmental is that this would create a pre- that there has been a 30 per cent justice, might therefore support a emptive, preventative and post- decline in wildlife since 1970. proposal to introduce into operative crime. Ecocide is Problems of climate change and international law new measures to preventative because it becomes a environmental damage may be address contemporary ecocidal ‘think before you act’ law; action can approaching a tipping point trends (South, 2010). be taken before the damage is done. according to the International Energy In responding to damage after the Agency, a scenario described in ‘Ecocide’ event, restorative justice can be dramatic terms by one NASA climate Higgins (2010; 2012) has proffered as an alternative to scientist predicting drought, floods, campaigned for the introduction imprisonment. economic crises and rising food of a crime of Ecocide as a fifth A law of Ecocide: 1. imposes an prices – ‘If this sounds apocalyptic, it international ‘Crime against Peace’ international and trans-boundary is’ says Hansen (2012). under a proposed amendment duty of care on any person or Following the failures of to the Rome Statute, the treaty persons exercising a position of Copenhagen and Rio there is a need that established the International superior responsibility, without for positive developments and new Criminal Court and in force from 1 exemption, in either private or public solutions to crimes and harms July 2002. As of 1 February 2012, capacity to prevent the risk of and/or 4 ©2012 Centre for Crime and Justice Studies 10.1080/09627251.2012.751212 rCJM No 90.indd 4 19/11/2012 10:36:43 actual extensive damage to or occasions. What is little known is damage, destruction or loss of destruction of or loss of ecosystem(s); that there has been over ten years of ecosystems and 2. impose a legal 2. closes the gap between words and concerted debate, discussion and duty of care upon persons in action; 3. imposes an international research concerning a law of positions of superior responsibility. and trans-boundary duty of care on Ecocide. In fact, a drafted Ecocide Kill our planet and we kill CEOs and directors of a business Convention already exists. ourselves: instead put in place a and/or any person who exercises Documents recently brought to light value system based on the health rights over a given territory to ensure in the report Ecocide is the Missing and well-being of all life and we will HARMS NTAL ecocide does not occur and creates a 5th Crime Against Peace (Gauger et end the era of ecocide. When we E law with criminal sanctions when al., 2012) demonstrate that Ecocide prohibit activities that are damaging their actions, or the actions of others, was a ‘crime’ very much at the and destructive and hold to account create a risk of and/or actual forefront of work in the relevant in a criminal court of law those who extensive damage to or destruction international policy circles between make the decisions that cause of or loss of ecosystem(s). Ecocide is 1972 and 1996. For over a decade ecocide, suddenly the rules that a crime against peace because the Ecocide was included as a Crime govern business change. This is a law ENVIRONM risk of and/or actual extensive against Peace in extensive that examines consequences – no damage to or destruction of or loss of discussions and drafting undertaken longer can we make money out of ecosystem(s) leads to: breaches by the United Nations until it was activities that cause ecocide. Instead, against humanity, nature and future finally removed from the text that protection of the interests of the generations; heightened risk of became known as the Rome Statute, wider Earth community becomes the conflict; diminution in the quality of which codified the Crimes against over-riding consideration. The Earth’s life of all inhabitants of a given Peace. right to life is protected. n territory and of territories further A law of Ecocide would recognise afield; diminution in the health and that human-caused environmental Polly Higgins is a barrister, author and well being of inhabitants, arising out destruction perpetrated outside of international environmental lawyer. Damien Short is a Senior Lecturer, Institute of of or leading to catastrophic disaster, war-time is not usually a crime of Commonwealth Studies, University of London. food poverty, water pollution and clear intent. Of the ten countries that Nigel South is a Professor, Department of shortages, and unnatural climate have already included Ecocide in Sociology, University of Essex change. their criminal penal codes, not one of them sets out a test of intent. References What needs to be done? Instead an international law of Gauger, A., Pouye Rabatel-Fernel, M., An institutional framework for Ecocide should be a crime of strict Kulbicki, L., Short, D. and Higgins, P. sustainable development and liability for without it a legal (2012), Ecocide is the missing 5th Crime international environmental loophole looms large – one which Against Peace, London: Human Rights governance does not yet exist. To be many corporations would exercise. Consortium, School of Advanced Study, fully effective three crucial steps are Quite simply businesses would not University of London. required: close the door to existing have to be accountable; mass Ghina, F. (2003), ‘Sustainable subsidies to dangerous industrial- damage and destruction would be development in small island developing related activity; prohibit activity treated as collateral damage and the states’, Environment, Development and that gives rise to mass damage defence that ‘we had no intent’ Sustainability, 5, 1-2, pp. 139-165. and destruction; open the door to would be heard time and again. Hansen, J. (2012), ‘Game Over for the subsidies to innovation in another Companies are unlikely to explicitly Climate’, New York Times, May 9. direction. A law of Ecocide closes intend to commit ecocide: it is all Higgins, P. (2010), Eradicating Ecocide, the door to the carbon majors, too often a by-product of placing London: Shepheard-Walwyn industries that cause carbon dioxide profit first and considering Higgins, P. (2012), ‘Closing the Door to emissions. The outcome will be a consequences later. Dangerous Industrial Activity: Concept green economy and a new dominant Our world has normalised the paper for all Governments on the Law of economic paradigm. daily ecocide caused by business Ecocide’, www.eradicatingecocide.com This proposal is timely and practices that are escalating at such a Passas, N. and Goodwin, V. (2004), ‘A clearly responds to the indicators of rate that melting ice in the arctic is a crime by any other name’ in Passas, N. environmental harms described threat to life in small island states and Goodwin, V. (eds) It’s Legal but it above as well as resonating with that are part of completely different Ain’t Right: Harmful Social similar or related statements or continents across the world. Human- Consequences of Legal Industries, Ann proposals made in the past. But is the caused climate change has not been Arbor: University of Michigan Press. prospect of realising a law of ecocide looked at through the lens of law. South, N. (2010), ‘The ecocidal simply too fanciful and naive? The When we do that, a different tendencies of late-modernity: Trans- answer would seem to be ‘no’ perspective emerges and we see that national crime, social exclusion, victims because enactment of such a we can literally change the rules.