by Jerry Alatalo
here is a global movement to add ecocide to the list of four international crimes in the Rome Statute, and then prosecutable in the International Criminal Court (ICC). If the Rome Statute were to become amended to add ecocide as the fifth international crime – alongside genocide, war crimes, crimes against humanity, and crimes of aggression – governments, corporations and individuals would for the first time face prosecution for severely damaging the environment. As the United Kingdom has ratified the Rome Statute and agreed to come under jurisdiction of the ICC, for example: if ecocide had already become an international crime at the time of British Petroleum’s (BP) massive Gulf of Mexico oil spill, BP would have faced prosecution in the ICC for the international crime of ecocide.
British barrister/lawyer Polly Higgins has been one of leading proponents for making ecocide the world’s fifth international crime, and she shares some very interesting historical details in the following short talk from March 2015 given in Sweden.
After Ms. Higgins attempted to insert ecocide into the world’s framework of international law by submitting her proposal to the United Nations Law Commission in 2010, her efforts turned to the events leading up to creation of the Rome Statute which led to establishing the ICC during the period between 1985 and the late 1990’s. During the period 1985-1996 when the Rome Statute was under development, most people are aware that the ICC now deals with genocide, war crimes and crimes against humanity, but at that time there were two other international crimes discussed for possible inclusion into the statute’s provisions: crimes of aggression and ecocide.
Polly Higgins admits that when she proposed adding the fifth international crime of ecocide to the United Nations Law Commission in 2010 she was unaware that ecocide was on the agenda during the 1985-1996 Rome Statute developmental meetings. Her sense that her proposal ended up in the UN Law Commission’s “in file” and would remain there led her to believe nothing would happen without her taking the issue out into the public domain. After that, her ecocide proposal became the topic of an article published in the British newspaper The Guardian, and, as she had managed to create a website at the same time, resulted in 28,000 hits after the article’s publication.
From that, a German man contacted her with code #’s of United Nations documents from the 1985-1996 period related to the ecocide discussions. She went to the UN’s website, typed in the code #’s to look at the meeting documents, and was unable to pull the documents up for reading. She phoned the United Nations and explained her inability to see the documents online, in an effort resolve the internet missing link problem, and became transferred in an endless loop from person to person for two hours before realizing she was not going to have any luck. She needed a man or woman who was familiar with UN records in Geneva, found a man at the University of London School of Advanced Studies who was, and learned that the man had already made plans to travel to Geneva two weeks later with a team of students to the UN “basement” for researching the lawyer who proposed genocide.
The man and his team of students used the reference #’s Polly Higgins had received from the German man, followed the paper trail, and brought back two “stacks” of documents related to UN ecocide discussions from 1985-1996. From those records, Ms. Higgins learned that ecocide law discussions began during the time of Sweden’s Olaf Palme, in Sweden, and that Mr. Palme had criticized the UN for “dragging its feet” on ecocide laws. From 1985-1996 ecocide was the subject in discussions, until:
“…finally one day in a closed-door meeting, with fewer people than we have here today, it (ecocide) was removed (taken off the agenda). No reasons were given and many countries, including Sweden, had supported ecocide as an international crime. These are not my opinions; this is from the record found in the basement. Thankfully, someone took records of that actual meeting before it was removed. The environment crime working group disbanded, was removed, and disappeared”.
According to Polly Higgins, “four, possibly five, countries had lobbied behind the scenes to have it removed, and the countries were the US, UK, France and the Netherlands”.
“Now, to give that political context, back in 1996 when it was removed, that was the year that genetic modification was first introduced into supermarket shelves in the US. There was a very important judgment going through the International Court of Justice on the use of nuclear weapons, and it was hoped that would go the full way to say it was illegal to use them – it didn’t quite go there. …1996 was the year when it was decided to really scale up unconventional tar extraction and (becoming) more focused with fracking”.
“Where does that leave us here today, twenty years on? We’re in a worse position, not a better position”.
Ms. Higgins goes on to describe the parallel of ecocide to a historical pattern seen when humanity dealt with slavery, civil rights violations, and apartheid. Before slavery, denial of civil rights and apartheid were finally overcome due to global pressure from the people, years of conventions, treaties, agreements, declarations, UN resolutions etc. passed before a critical mass manifested and fully effective legal measures became implemented. Slavery, apartheid, and denial of civil rights are now crimes, and, although instances of those crimes still occur, people have recourse under the law not available pre-critical mass and real change.
“At the moment, with mass damage and destruction, it’s (ecocide) not a crime. And this is very important here, because we’re missing a law. Here we are – 40 years of many agreements, treaties, conventions, protocols, what have you – and we haven’t gotten to the point of saying significant harm is a crime”.
“Criminal law stands very clearly: If this is a harm, it has to stop”.
What was retained in the final Rome Statute was a watered-down version of a war-crime, not a peace-crime, against the environment. Article 8(2)(b) of the Rome Statute adopted the 1977 Environmental Modification Convention definition of a crime against the environment and criminalises “Intentionally launching an attack in the knowledge that such attack will cause… widespread, long-term and severe damage to the natural environment…” There was however, one crucial difference; widespread, long-term or severe had been watered down, namely: or was replaced with and. Christian Tomuschat argues that history has demonstrated that proving destruction widespread, long-term and severe is almost impossible to prosecute. (emphasis added)
Polly Higgins describes some very interesting coincidences in this short talk. Isn’t it a coincidence she couldn’t access United Nations documents from their website? What a fortunate “coincidence” that the Guardian published an article leading to her receipt of UN document codes. Wasn’t it a coincidence she knew somebody who was eventually able, by following the paper trail, to bring her a “whole load of information” about the “huge history” of UN ecocide law from “the basement”? How “coincidental” was it that in the year 1996, when UN ecocide laws were effectively spiked, GMOs became prominent in American supermarkets, while tar sand extraction and hydraulic fracturing (fracking) were emergent?
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(Thank you to SEI – Stockholm Environment Institute at YouTube)