The earth needed a good lawyer

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The earth needed a good lawyer

Barrister Polly Higgins was looking out of the window at London’s Court of Appeal one day and thought ‘what am I doing here when there is so much environmental destruction in the world?’ She decided to become an environmental lawyer. She tells David W. Smith about her campaign to persuade global leaders to make ecocide the fifth crime against peace.

3 mins to read

Proposed definition of ecocide:
“The extensive damage to, destruction of 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 or will be severely diminished”

Interview:

Why do we need a law of ecocide?

We know from reports by the UN and the International Environment Agency that continuing with business as usual is not an option. We are on a trajectory. The Carbon Majors Report last year concluded that nearly two thirds of carbon dioxide emitted since the 1750s can be traced to the 90 largest fossil fuel and cement producers, most of which still operate. There’s a plethora of expertise showing species extinction is escalating off the chart and we’re having unnatural climate events globally, including in Britain.

Will the law help to prevent climate change?

As a lawyer, I am not dealing with the here and now. A law of ecocide is not dependent on whether you are a climate change believer, or denier. The law of ecocide requires only evidence of ‘significant harm’. It goes to the source of the problem and says that if we cause mass damage and destruction that has an adverse impact on the planet we need to be held to account.

Look at the ‘dirty oil’ on the Alberta Tar Sands in Canada, or the razing of the Amazon rainforest; you can see clear evidence of mass damage and destruction.

How close is the law to being enacted?

This law could be fully operational within five years. It’s a matter of political will and keeping the ball rolling. All that is being sought is an amendment to the Rome Statute. To do that takes one Head of State who is a signatory to call for it to be tabled for signatories – then it becomes a numbers game. Once there is a two thirds majority among the 122 signatories, it becomes international law.

How would it work in practice?

The 122 signatories have to put in place an Ecocide Act, or equivalent legislation, in their country and it becomes encumbent on them to take prosecutions. The International Criminal Court (ICC) will step in as a ‘Court of Last Resort’ if a country doesn’t take action. One proposal is that the ICC makes a preliminary ruling on whether an Ecocide is or has occurred in a Member state. Rather than conduct the trial in the Hague, the ICC can order a neutral country, such as Switzerland, to open up one of its courts to hold an ad hoc tribunal to hear the case. We already have precedent for this approach.

What will be the effect on countries not signed up to the Rome Statute?

It will vastly curtail their activities. For instance, the US is not a signatory so it would only be allowed to continue with dangerous or hazardous activities on its own land. Elsewhere, it would become a marginal player, damaging its economy.

What’s hopeful is that big transnational corporations, extractive companies and energy companies will want to come on board to retain their market advantage. Once we have an international law of ecocide suddenly there are enormous consequences to investing in a company that is continuing with ecocide globally even if it’s lawful in its own country. The money markets will dry up fast.

Who will get prosecuted?

International crime has the Principle of Superior Responsibility. It was put in place during the Nuremberg War Tribunals. It recognizes the necessity to prosecute those in the command and control role first as they make decisions with adverse consequences for hundreds of thousands at the bottom end. This could mean ministers of state, CEOs, directors, but also finance directors and heads of banks who are investing in ecocidal projects.

A big problem with the existing litigation is that when you take action against a company, you can’t pierce ‘the corporate veil’. There’s no point in putting a piece of paper – that’s all a company is – in a criminal dock. All you can do is fine a company and they usually have a reserve pot of money, so the decision-makers get away with it.

But international criminal law is different. It attaches itself to human beings so it’s not a defence to argue in criminal law that he or she did it for profit, or that it creates jobs. It’s important that key decision-makers are accountable. If you are going to take on the responsibility of heading up a company you have to make sure your employees and sub-contractors are not causing significant harm.

How will companies feel about the law?

Companies work well within a duty of care. They have a natural desire to thrive and given a clear legislative framework they will say ‘okay, now we are going in this direction instead’. The majority of companies want a legislative framework. Those who object are the ones who want to get away with causing significant harm and, in truth, most people don’t want to cause harm. Most say ‘how amazing that it’s not a crime to cause mass damage and destruction in the first place’.

We’ve tried policies involving offsets and companies volunteering to behave better and it hasn’t worked. We are in a worse position now, so what is required is to take the next step and make it illegal. At the moment, were BP to go beyond petroleum, their bottom line would suffer as there is no legal requirement in place that creates a level playing field.

What are the potential economic benefits?

The legal requirement to be constructive will drive enormous innovation. Research centres and universities actively tasked by governments to find new solutions to x, y and z. Most companies are stuck in the ecocidal way of being. And current laws do not help. Most companies are just tweaking at the edges to keep on going, rather than ensuring their businesses no longer cause ecocide. Once a law of ecocide is in place the overriding legal duty of care will be to ensure no significant harm occurs. That is the quantum leap forward that is now required..

Can we justify the law on economic grounds?

No, the issue of liability is not a question of economics in criminal law. The law arises from an understanding that if we continue with what we are doing we are causing such significant harm that we are putting humanity at risk. William Wilberforce never argued for the abolition of slavery on the grounds that it would be good economically. He deliberately left that to one side and made the moral argument that wrong must stop. A new criminal law arises when we take a moral wrong and make it a legal wrong. That doesn’t mean it’s stopped entirely, but we have the tools to deal with it and far less happens. A ‘do no harm principle’ becomes our overriding starting point. Then the money will flow.

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Polly Higgins photo by Rupert Pessl 
 
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