12 minute read
T The Crime of Ecocide
THE SOCIAL CONTEXT OF THE LAW: THE CRIME OF ECOCIDE
From a panel discussion held on 22 November 2021 with Professor Philippe Sands KC (Matrix Chambers, Professor of Law and Director of the Centre on International Courts and Tribunals at UCL) and James Cameron (Co-founder of FIELD and founder of CIEL), moderated by Master Geoffrey Nice (Gresham Professor of Law 2012–2016) and introduced by Master Guy Fetherstonhaugh KC (Treasurer, 2020 and 2021).
Master Guy Fetherstonhaugh: The purpose of this series of Social Context of the Law talks is to enhance an understanding of the law and its social importance. And we do that through the open discussion of difficult questions that the law is asked to address, and concerning which there may be equally plausible but conflicting views.
We are extremely grateful to our distinguished speakers for giving their time to discuss what is one of the most important issues facing us today: Professor Philippe Sands KC and James Cameron. Sir Geoffrey Nice KC is chairing this evening.
Philippe Sands: In 1972, the Prime Minister of Sweden, Olof Palme, in his opening to the famous UN Conference on the Human Environment, evoked the idea of a future crime of ecocide. In 1998, I was in Rome with Andrew Clapp and we drafted the preamble to the Statute of the International Criminal Court. And there was a move to include environmental protection, but it was felt that it was premature at that point. There matters rested until the remarkable Polly Higgins came on the scene, and almost single-handedly evoked and ran with this idea. Frankly, she was in the wilderness for many, many years, and even I was sceptical about whether the time was right. Sadly, she passed away in April 2019, and the struggle has been now taken up by the marvellous Jojo Mehta and a large group of people around the world – to put into the Statute of the International Criminal Court a new crime which would protect the environment.
Jojo Mehta got in touch with me and 11 other colleagues with whom I had the privilege of working for six months on an independent working group to draft a workable definition of the crime of ecocide. This evokes the concept of genocide, but we were absolutely clear that we would not go, if you like, with the innards of genocide. The difference between a genocide and a crime against humanity goes in large part to the need to prove a special intent in the case of genocide, to prove the intention to destroy a group, in whole or in part.
And that doesn’t work in relation to ecocide, because no one intends to destroy the environment in whole or in part. The destruction of the environment is always the unintentional incidental consequence of some other act, which is intended no doubt to produce some social benefit. So, the very first thing that we did as a working group was to agree that we had to stick with the term because it had developed a life of its own, but in defining its content, we were much more in the direction of ‘crimes against humanity’ type of language.
Let me say something about what we came up with. We agreed at the outset that we would do all we could to proceed by way of consensus. And we all agreed we’d be willing to make the compromises that needed to be made. I just want to make a number of key points. The first thing we wanted to do was to sever the link between the protection of the human and the protection of the environment – to come up with a definition that was not anthropocentric. In the definition we’ve come up with, ecocide means unlawful or wanton acts committed with knowledge that there is substantial likelihood of severe and either widespread or long-term damage to the environment caused by those acts. We did not want to make the crime of ecocide dependent upon proving harm to human beings. Harm to humans could be a factor, but it would not be a necessary factor.
Second point, we wanted to come up with something that was simple. We all know that less is more, and that the more complex our definition, the more likely it was that it would prove to generate resistance. And a third point, we wanted to come up with a definition on which we could point, in respect to every word or idea contained in our definition, to an existing international criminal law norm, so that we could say to the states that we’ll have to run with this if it’s to go any further. Yes, the whole is new, but the parts all have support in precedent. Because, as we know so well, governments are extremely cautious creatures, deeply conservative, and if you can show that it’s been done before in another context, you’ve got more of a chance to run with it. That is what we did on this definition. Fourth point, we had a tremendous battle in our group on whether to include a list of certain acts which could be characterised as criminal, and nearly half the group was absolutely adamant that we must do that. A little more than half the group strongly opposed it, myself included. In the end, I’m glad to say that view prevailed. We took the view that, as with crimes against humanity in the old days, it will be for a prosecutor to decide whether a certain act does or does not come within the definition and, of course, ultimately for the judges to decide what to do with it.
I’ll just finish by saying what has happened since we have come up with our definition. We went into the enterprise in good faith and, of course, we hoped that something might happen, but I could not have foreseen what has happened. I have had a large number of countries get in touch, mostly behind the scenes, and say: “Yes, this has to happen”.
I was very pleased that last week the parliament of Belgium, its Foreign Affairs Committee, became the first to adopt a resolution proposing two things. Firstly, that Belgium adopt an internal domestic law on the crime of ecocide, based on the definition we came up with. Secondly, mandating the Belgian government to lead international negotiations for the amendment of the International Criminal Court (ICC) statute to include a fifth crime. This week it is expected that the Belgian parliament as a whole will adopt a resolution in that direction.
So, things are moving along. I would say the situation now is not whether this happens, it is when it happens and how it happens. But I have no doubt that there will be a crime of ecocide on the statute of the International Criminal Court at some point. I am not starry-eyed about what that means when it comes, but I think it’s an important nudge in the right direction for recognising that our responsibility to protect the global environment includes a responsibility backed by force of international criminal law.
James Cameron: I remember very vividly Polly Higgins coming in to our old offices and her setting out her stall, trying to persuade us to really take this idea up. And I, like Philippe, was not sure that we really could commit to the strength of this idea then. I didn’t think that ecocide and the agreement that she had put it in – it wasn’t just a single concept, she’d put it in a kind of international criminal agreement on the environment – was the right approach. Insofar as there were crimes to be discussed, I was more interested in national courts and tribunals being the place to bring them and using the existing rights argument – including existing human rights.
I remember vividly the classes that we taught on human rights and the environment were always very vibrant. There were fantastic contributions in those classes with people who were thoroughly engaged in the possibilities that existing human rights law had when directed at the problem of the environment. They allowed all sorts of avenues of inquiry to open up, including how to extend rights beyond human rights to rights that could be possessed by mammals – other species. We have all sorts of examples of legal constructs to help represent ideas, and to do justice to situations where the person affected cannot speak for themselves.
I remember those classes being incredibly creative and interesting around those themes, but I didn’t think that ecocide was the best way of getting at them then. In our career we try to use legal arguments to deliver outcomes, to be very focused on how the law can be transformative – how the law is, in some sense, a reflection of our will to perfect ourselves, something beyond our own capacity to organise, to self-organise, something you put into your constitution, the way in which the law is capable of expressing our best aspirations for ourselves. When you place that in the context of the very significant threat that we have created, in a system that is so much more powerful than ourselves, the natural environment, and where we are very literally at risk, then it does seem logical to ask harder questions about how our legal system could protect ourselves from ourselves, by attributing duties to that natural system upon which we depend for our survival and prosperity. So, I’ve started to think more about how that original idea of Polly’s and this new commission that Philippe was a part of works in the context of some progress in the creation of international environmental law, but not enough? And where there is a movement, particularly a movement of the youth, that is looking for an outlet for perfectly justifiable rage, for righteous indignation that needs direction, for something that will not be satisfied entirely by existing political forces.
I am concerned that this movement doesn’t have enough outlets for their rage, it isn’t adequately directed. It does seek redress. It wants justice. In the language of the law, it might be articulated in a more kind of discursive way or a more general way than a lawyer would normally wish to see, but that is how they express themselves. They want climate justice and they’re not satisfied with what is presented to them.
So, in that sense, ecocide provides some language for them, some process for them, that could lead to an outcome that would satisfy that clamour. I do think we are invited by it to think more creatively about how the legal order could give effect for that desire to see the environment adequately protected in law, and the pieces of environment that are most vulnerable to climate change, for example, given expression in the legal order. And you can do that. You could do it with the concept of natural capital, too. That’s interesting as a parallel theory, more obviously manifested in economics. But still, if you have a concept of natural capital, and you ask yourself, how might I protect natural capital – in practice, you inevitably are going to need the law.
Well, that’s not so far removed from the concept of ecocide – creating rights in the protection of the environment, for its own sake, not simply for its utility to humans. And I can see some opportunity to be creative about what institutional voice could be created for this abstract idea. That’s why I think it’s quite useful to go back to well-established concepts like trustees, advocates general, guardian ad litem, ombudsman – these are all ways in which one could give effect to the definition that Philippe has described, which I think is much more useful than the idea of ecocide is. I think if you combine the idea with that definition, I can see it being implemented into a legal order, thereby creating procedural rights to courts and tribunals, not just hanging all of our hopes on the ICC to come up with something that could be actionable there.
But there, at least, you can hold up the kind of most egregious abuse of power that would require that tribunal to be used. And I’m afraid I can imagine leadership being as crass as to deliberately harm the environment. I also can imagine that if you had such a criminal sanction associated with a criminal law at the international level, it would act upon the minds of some of the most abusive leaders, who care little or nothing for the effect of their decisions on the natural environment, which has consequences beyond their shores.
So, there’s a very good reason for having international law take responsibility for this argument. Because the kinds of concerns that we have about the global environment are never adequately addressed by a single nation or decisions made within a single nationyou need some kind of international jurisprudence and the capacity to implement it as well. I see a real value in that kind of advocacy.
The kinds of concerns that we have about the global environment are never adequately addressed by a single nation or decisions made within a single nation you need some kind of international jurisprudence and the capacity to implement it as well.
Master Guy Fetherstonhaugh: We are spoiled with the pair of you, Philippe and James. What better pedigree can speakers possibly have to come along and address this topic than the two of you, titans in your field. And then you, Geoffrey, it’s not just the Uyghur Tribunal that you are absolutely renowned for, your own part in this field goes back a very, very long period of time. And what’s remarkable, and everybody should appreciate this, is that you are the originator of this Social Context of the Law series.
My own thoughts, lastly, on the topic we’ve been addressing are: yes, I think genocide is difficult to apply in practice as a concept, but that’s not really the point. I think the point about the invention of the crime of genocide is that it dignifies the human spirit, it’s all about the good guys, isn’t it, recognising that something must be done. So too, I think with ecocide. I’m not in a position to share your confidence, Philippe, that this will be on the statute book fairly soon. But it is a remarkable statement coming from an experienced barrister like you. Barristers are famous for havering and being diffident and sitting on the fence in their opinions, and I am absolutely reassured and delighted by your statement as to the future. Let’s hope it’s not too long coming.
Guy Fetherstonhaugh KC Sir Geoffrey Nice KC Philippe Sands KC James Cameron
For the full video recording of this lecture: innertemple.org.uk/ecocide
