Earlier this week Extinction Rebellion parked a blue boat outside the Royal Courts of Justice in the Strand and occupied the busy London street with a sit-down protest, causing traffic jams and commuter chaos. It came at the start of a week of protest events around the country.
This is not the first time the non-violent environmental protest group have caused disruption in London. In April this year, they occupied Oxford Circus (where they parked a pink boat) and brought traffic on Waterloo Bridge to a standstill with 11 days of protests that the group described as the ‘biggest act of civil disobedience in recent British history’.
But while some protesters have been arrested for public order offences, the demonstration outside the High Court was not related to any of those cases. Instead, it was in memory of an environmental lawyer called Polly Higgins who died earlier this year, and (among other demands) to promote her proposal for a new international law criminalising ‘ecocide’.
What is ‘ecocide’?
According to the Stop Ecocide campaign, ‘Ecocide is serious loss, damage or destruction of ecosystems including climate and cultural damage. We believe ecocide should be recognised as an atrocity crime at the International Criminal Court – alongside Genocide, War Crimes and Crimes Against Humanity.’
A more legalistic definition of ecocide states that it involves ‘loss or damage to, or destruction of ecosystem(s) of a given territory(ies), such that peaceful enjoyment by the inhabitants has been or will be severely diminished.’ (‘Peaceful enjoyment’ in this context means ‘peace, health and cultural integrity’.)
That definition comes from the website Ecocide Law which further explains that ‘Despite the existence of many international agreements – codes of conduct, UN Resolutions, Treaties, Conventions, Protocols etc – the harm is escalating. Not one of these international agreements prohibits ecocide. The power of ecocide crime is that it creates a legal duty of care that holds persons of “superior responsibility” to account in a criminal court of law.’
They argue that if ecocide is established as an international crime, prosecutions could be brought by nations who are signatories to the Rome Statute, under which the International Criminal Court operates.
A model law
A model law has been drafted that would amend the Rome Statute to create a specific offence of ecocide. It would create ‘an international and transboundary duty of care’ both on governments or relevant ministers and businesses who exercise rights over a given territory to ‘ensure ecocide does not occur’.
The statute currently recognises four core international crimes: genocide, crimes against humanity, war crimes, and (since 2010) the crime of aggression. The ICC can only investigate and prosecute those crimes in situations where states are unable or unwilling to do so themselves.
Any signatory to the Rome Statute of the International Criminal Court can propose an amendment, but such an amendment requires the support of a two-thirds majority of the states parties, and will not enter into force until it has been ratified by seven-eighths of the states parties. This process is likely to take some time, even if a state party takes the first step of proposing the necessary amendment. However, it has been done before, by the addition of the crime of aggression in 2010. So it is certainly not impossible.
Can it work?
Although it may sound unfamiliar, the concept of ecocide is not new. Use of the term goes back half a century, to the early 1970s when the use of chemical defoliants such as Agent Orange during the Vietnam War were condemned by environmentalists as a form of ecocide. It appears to have been included in the early versions of the Draft Code of Crimes Against the Peace and Security of Mankind (as the Rome Statute was initially known), but was dropped by the time it had been formalised and signed as the Rome Statute of the International Court in 1998.
Polly Higgins proposed adding it back in to the Statute at the United Nations in 2010 and continued to campaign for such an amendment, most recently at the Hague Talks to mark the 70th anniversary of the Universal Declaration of Human Rights in December 2018. But it is clear that such amendment could be a long and drawn out process and, even if successful, it could be many years before any prosecutions were concluded.
How effective would such a remedy be as a deterrent to environmental destruction which, by its nature, needs both urgent and concerted international action. Is transnational criminal law really the best instrument to use?
The Extinction Rebellion protests in April this year were widely criticised for causing needless obstruction and there were many arrests for (relatively minor) public order offences. People glued and chained themselves to buildings and other structures. But sometimes a bit of public disorder can focus attention in ways more orderly protest may not. Following the April protests, the Welsh and UK parliaments declared a climate emergency. Though passing such a vote does not have any legislative effect – indeed it could be regarded as little more than parliamentary virtue signalling – it at least paves the way for more active government action on climate change and the threats to the environment.
But action by individual nations and governments is not enough. The threat to the environment is a global problem which, therefore, requires a global solution. In the first instance, that needs to be consensual and collective. That was the purpose of the Paris Climate Change Agreement which, sadly, President Trump has rejected. Without the positive effect of such an accord, it’s hard to see what a punitive criminal enforcement regime can achieve, at any rate in the short term. But it would perhaps be a step in the right direction.
Paul Magrath is head of product development at the Incorporated Council of Law Reporting for England and Wales (ICLR) and a member of the Transparency Project. His book, Transparency in the Family Courts, co-authored with Lucy Reed and Julie Doughty, is published by Bloomsbury Professional.
