Femke Wijdekop
I appreciate the insightful points and questions that have been raised, and they have helped me to further develop my own thinking. In responding, I will begin with some general thoughts and then move on to specific points.
As many have pointed out, while an international prohibition of ecocide has a role to play in the transition to a more just and sustainable world (and I would argue that this role could be a significant one), it would be insufficient on its own to restore humanity’s relationship with nature from one of exploitation and abuse to one of care and flourishing. Our abuse of the environment comes from a deep misunderstanding of our relationship with nature and of our place in it. The idea that nature is an “object” for our domination and exploitation is relatively recent, yet our legal and economic systems have been built up around this erroneous, harmful, and scientifically outdated notion. Modern science shows that we do not live in a “clockwork” universe, but one that is a network of dynamic relationships.
Law is a social construct that responds to new scientific insights and emerging harms (or at least should respond to them, if it is to keep its relevance and authority). The idea of prohibiting ecocide first came as a response to the emerging harm of biological and chemical warfare in the 1960s and 70s. The surging movement of lawyers and concerned citizens working today to have environmental destruction recognized as a legal wrong is responding to the ecological emergency of our own time. This movement’s aims—making ecocide an international crime, creating an Ombudsman for Future Generations at governmental levels, granting rights to nature, and establishing a duty of care towards future generations through climate litigation—are expressions of an emerging worldview that recognizes our interconnectedness with nature and with each other.
These activists are informed by an understanding that the harm we do to the Earth will come back to haunt us. Ecocide law entails using criminal law as a tool to address and prevent environmental harm, just as the Urgenda climate case in the Netherlands used tort law to address failing climate policy. Roger Cox, Urgenda’s lead counsel, grounded his arguments that the Dutch government was failing in its duty of care towards Dutch citizens because of its insufficient CO2 reductions in existing tort law, with all the required technicalities and references to established jurisprudence. Yet when asked to describe this case to which he had dedicated ten years of his life to, he called it “A Lawsuit of Love,” because it was love for this planet and for future generations that had motivated him to start it and that enabled him to persevere for so many years.
Advocates of ecocide legislation are also coming at their work from such a place of love for the Earth and its inhabitants (humans or otherwise), and we choose to put our legal skills in service of a vision of a more compassionate and just world. And while law on its own is not able to create harmonious relationships, it does shape our norms and values, and it can make certain actions less appealing or even taboo. Law does not exist in a vacuum. The legislation that gave women the right to vote, itself an expression of a movement of emancipation, set in motion a process that fundamentally changed society’s perception of women and their role in society. Citizens internalized the new norms to such an extent that it is astonishing to remember that it was only in 1955 that married women in the Netherlands gained the right to work in the civil service. If the universe is a network of relationships, so, too, is our society, and laws both catalyze and give expression to changes in consciousness.
Having offered this general commentary, I would like to address several specific criticisms of the proposal to incorporate ecocide as the fifth crime against peace in the Rome Statute of the International Criminal Court.
1. The suggestion of limiting the prohibition on ecocide to times of war, because the Rome Statute is geared towards the criminal liability of state officials (not CEOs/companies) and because this might be the only politically feasible or realistic option.
For Small Island Developing States that are facing an existential threat of loss of land and loss of lives, this is not a matter that can be addressed through wartime provisions. Indeed, to do so would be to abrogate our responsibilities for humanity as a whole. Do we go for a compromise that can never meet the requirements of those most at risk, or do we stand strong and call for what is required for advancing climate justice? The compromise strategy leads to loss of lives; the latter strategy saves lives.
Law is a tool for justice; international criminal law, like all law, is not static, but must reflect our growing understanding of the harm that we face. To remain complicit in ecocide on the basis that it does not fit an old model of law suggests that it is time to update our legal frameworks.
2. The point that a nation enforcing ecocide law would make itself “uncompetitive” in the global marketplace since affected companies would simply move elsewhere.
An important motivation for including ecocide in the Rome Statute of the ICC—as opposed to a regional treaty—is the global reach of the ICC and the jus cogens nature of its norms (fundamental, overriding principles of international law from which no derogation is permitted). Making ecocide a crime under the Rome Statute would create a level playing field since ecocide would be prohibited in all the state parties of the ICC. State parties would be obliged to prohibit ecocide in their national laws because the ICC works with the principle of complementarity—meaning that the first responsibility to prosecute the Rome Statute crimes lies with the states. If national courts are unable or unwilling to prosecute, the ICC can step in. State parties would not be allowed to tolerate ecocide on their territories any more than they are currently allowed to tolerate genocide or war crimes, no matter what “economic advantages” they might bring.
3. The concern about a lack of legitimacy and authority of the ICC.
It is true that the ICC is not as strong as it could be—indeed, that could be said about many judicial systems in the world. But that does not mean we should abandon it—it has a role that, in this time of increased transboundary crime, is required more than ever. This leaves us with a choice: Do we abandon the court, or do we strengthen it? We could replace and create a new International Environmental Tribunal (a process that would take a lot of time and resources), or we could find ways of ensuring the ICC is supported.
4. The idea that ecocide only be criminalized when intent can be proven.
Although the existing ICC structure is built around intentionality, the Rome Statute leaves the door open for potential future amendments that would provide otherwise [See Article 30: “Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge” (emphasis added)].
While international criminal law is built around intentionality, environmental law is not always so restrictive. A person is said to have knowledge when that person should have known that her action could have caused the damage in question. The precautionary principle is unambiguous on this point (“where there are threats of serious or irreversible damage, the lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environment degradation,” from Principle 15 of the Rio Declaration). Ecocide is defined as serious and/or irreversible damages; the occurrence of such damage will require no proof of knowledge or intent if the perpetrator has not abided by the duty of care or acted with precaution. Moreover, it is general knowledge that the use of dangerous products per se implies liability when damages arise without the need of proving knowledge and intent.
5. The critique that the history of the ICC shows that there is a long time lag (often decades) between the start of an investigation and the actual verdict, and, in the case of ecocide, the culpable company will probably be dissolved, assets divided, and bonuses paid to executives who have disappeared.
Dissolving the company, dividing its assets, merging it with a novel entity, or changing its initial purpose does not permit a company to avoid criminal liability under the End Ecocide proposal. This proposal contains provisions that cover the very important consequences arising from the dissolution, division, or liquidation of companies’ assets. In comparison, US courts in many occasions have been able to trace the past company in the newly created entities. For example, in the 2000 case United States vs. Alcan Aluminum Corp., the judge held defendant Alcan Aluminum Corp. liable for cleanup costs at two hazardous waste sites traced back to the use of PCB hydraulic oils in the remelt operation in the late 1960s and 1970. As Monsanto was the sole domestic manufacturer of PCBs in the US, the Court ordered joint liability with regard to the cleanup of contamination, despite the fact that Monsanto ceased production of PCB-containing fluids, and that PCB fluids were no longer commercially available in the United States.
6. The discomfort with limited “legal language” in addressing concern for the well-being of complex ecosystems.
Rights language has its limitations, as pointed out by Tim Weiskel. It is important to see ecocide legislation as addressing the worst violations of the integrity of the Earth’s ecosystem, and, as such, offering one step in harmonizing human laws with nature’s laws. This process requires the expertise of diverse disciplines and bodies of knowledge, with a special role for law and biology. As used by ecocide law advocate Polly Higgins, ecocide refers to widespread, long-lasting, or severe environmental harm, with these terms defined under the 1977 United Nations Environmental Modification Convention as follows:
Moreover, some have expressed a concern that advancing ecocide law relies on our adversarial legal system, which sets the “rights” of one group of humans (or humans acting as guardians for non-humans) against the rights of another group. The adversarial character of our legal system is not set in stone. The emerging Integrative Law Movement aims to create a legal system oriented towards values-based, creative, sustainable, and holistic solutions that build and strengthen relationships instead of a legal victory of one party at the expense of another. Ecocide law can be seen as part of this Integrative Law Movement since it is meant to help build a sustainable relationship between humans and the natural world and is aimed at protecting the rights of all the inhabitants of an ecosystem.(1) widespread: encompassing an area on the scale of several hundred square kilometers;
(2) long-lasting: lasting for a period of months, or approximately a season;
(3) severe: involving serious or significant disruption or harm to human life, natural and economic resources, or other assets
7. The point that ecocide law could strengthen the “adversarial paradigm” and that instead of international criminal law, Restorative Justice (with its emphasis on connection, empathy, compassion, and understanding) is necessary to heal the environmental and societal harm caused by ecocidal activity.
To protect those who cannot assert themselves, those who do not have political leverage or are even heard, yet suffer from ecological damage and destruction, the direct perpetrators of ecocide should be held responsible for the effects of their actions. Justice serves to protect society at large, and it becomes incumbent upon the legal system to ensure that abuse is stopped. Restorative Justice only works for those who are willing to take responsibility. At this point, not all those who (intentionally or unintentionally) cause ecocide are willing to take responsibility for—or even understand—the harm they do to the natural world, especially when they are desensitized from feeling their connection to that natural world. Although addressing and healing that disconnect from the natural world is where the ultimate solution lies, in the meantime, society has to be protected from the extreme harm actions resulting from such disconnectedness.
8. The point that we should address our own role in the ecocide instead of focusing on corporate perpetrators, since we, as consumers with high-carbon lifestyles, all bear responsibility for environmental damage and destruction.
I empathize with this point, but I think we should not ignore the power structures that exist in this world. We individuals do not have the leverage to solve the problem of ecocide when faced with the Goliath of polluting companies. The environmental destruction caused by these companies is often within the bounds of existing law since our legal system permits massive environmental damage and destruction as an “externality” of seeking profit.
Moreover, questions of individual responsibility enter into murky territory. We are not individually responsible for the total sum of environmental destruction if we are born into (and subject to) a system which does not acknowledge the intrinsic value of nature. The environmental crisis does require individual ecological awakening, awareness, and low-carbon lifestyles, but change on the individual level is not enough. We can try to live as organically as possible, yet without system change, without changing the legal framework within which economic activities take place, we will never fully succeed at restoring our relationship with nature.
As an initiative for collectively understanding and shaping the global future, GTI welcomes diverse ideas. Thus, the opinions expressed in our publications do not necessarily reflect the views of GTI or the Tellus Institute.
