Why The World Needs Ecocide Law

By Shirleen Chin (for the Handbook “Nu Het Nog Kan” by Extinction Rebellion – The Netherlands, available here and your local bookstores)

This is the original, before edit, article written in English – with bonus paragraphs that did not make the edit at the end.

The discussion on criminalising behaviour that harms the environment goes back to 1970s; particularly when former Prime Minister of Sweden, Olof Palme mentioned ecocide in the context of the Vietnam war and the use of Agent Orange. In 1991, when discussions about setting up a permanent court for international crimes were underway, twelve crimes were introduced. Here, the International Law Commission’s (ILC) 1991 Draft Code of Crimes Against Peace and Security of Mankind included the crime of ecocide, which was then described as the “wilful and severe damage to the environment”.

The Big Bully States

When the Draft Code and its articles were later submitted to states for consideration, three states initially spoke out against it. The United States, the United Kingdom and the Netherlands cited concerns about the vagueness and “novelty” of the proposed crime. Coincidentally enough, these three countries would have had a lot to lose if the crime of ecocide were introduced. It is worth noting that there were more countries in support of the crime of ecocide. As this seemed like an adversarial issue, with outspoken “powerful” states against the inclusion of such a crime, a Working Group was set up in 1995 at the General Assembly. This time, a majority of states voted to recognise ecocide as a crime but France, Brazil and the United States called for its exclusion.

In 1996, based on the majority vote above, the ILC again considered whether environmental damage should be included in the Draft Code as a standalone offence, a war crime or a crime against humanity. France was quoted as saying that the ILC was going out of its way to interfere with making a national “offense” an international crime. China and the United States agreed with this statement while some continued to support including environmental damage as a standalone offence.

Despite other countries in favour of ecocide as a standalone crime, the lopsided debate by a few strong states led to the exclusion of the crime of ecocide as a separate provision. Any mention of the damage to the environment only appears in a very narrow provision under war crimes in the Rome Statute. This means that environmental damage inflicted during peacetime will not be covered. One could say that the states who effectively blocked this laughed all the way to the bank. Today, they might have to think twice.

The Perpetrators Shell, a Dutch-UK oil company, knew about serious climate risks posed by their business of burning fossil fuels in the 80s. In fact, #ShellKnew that its business as usual would bring about climate refugees, famine and floods but they chose to continue to explore for more oil and gas. If it were not for leaked documents about their internal scientific reports on the effects of increased CO2, the general public would have been taken on a longer ride of misinformation through the expensive use of lobbying groups to cast doubts and downplay the climate science. The small group of oil companies colluded to keep the real threat of increased CO2 emissions to themselves as they continue selling fossil fuel products. Consumer awareness of their dirty deeds, boosted with thanks to the internet, has shifted these companies into renewables. But guess what? Renewables only make up 1% of the big oil companies’ portfolio. The oil and gas companies of the world intends to spend 4.9 trillion dollars over the next 10 years in extracting more oil. All this while the United Nations Secretary General Antonio Gueterres, scientists, youths, indigenous peoples and more call for the extraction and subsidies to stop.

Climate “villains” also come in the form of political figures. If you don’t know yet about Brazilian President Jair Bolsonaro, please stop reading and ask everyone’s friend, Google. When one looks at how natural resource-rich countries were colonised in the past, it is easy to see how the poor were victimised and ultimately left with nothing. These were governmental policies headed by those in power to attain more wealth by promising their hosts wealth in return under the guise of “economic development”. In my opinion, abuse of this false “promise” is euphemism for international state capture.

The Victims

Category 5 Severe Tropical Cyclone Harold encircling Vanuatu in April 2020

Climate change is here. The crisis is upon us. In some parts of the world, the effect has been an existential humanitarian crisis. In the Pacific, small island countries have been experiencing the loss of some of their low-lying atolls through sea-level rise. The Solomon Islands have lost five islands and is at severe risk of losing six more. Major coastal cities have been hit by more intense and frequent climatic events and are also inundated with sea-level rise. The sinking of Jakarta, the capital of Indonesia, is forcing the government to relocate the city from the island of Java to the island of Borneo. Naturally-occurring wildfires in other parts of the world are becoming bigger and more out of control as dried vegetation act as the perfect tinder – no, I’m not talking about the dating app! At the time of writing, Australia’s yearly wildfires have become out of control. Precious biodiversity, more than a million animals and human lives have perished in the uncontrollable inferno. Twenty-two million people living in New Delhi breathe in polluted air that is 20 times the safe limit. Extreme heat, droughts and flooding have brought intense suffering to people all over the world. Unexpected rain is becoming a common phenomenon in the “deserts” in the Middle East. When this happens, cities like Dubai come to a standstill as their infrastructure is not equipped with drains for excess water to flow.

Unfortunately, climate change adaptation and mitigation require a lot of money. The Netherlands was lucky to have the resources to bounce back from the devastating 1953 flooding of the North Sea. In contrast however, for the people of Puerto Rico, access to financial resources is proving to be very difficult. Indigenous peoples in the Amazon have protested against big industries only to be threatened and killed. There is no effective remedy or justice for the most vulnerable groups. The poor and helpless have been pitted against the rich and the powerful in a modern-day survival of the fittest. It does not have to be this way.

The Law: Ecocide Crime

Future generations amongst those who came out of school for the Global Climate Strike on September 20th, 2019 in New York City

There is a missing law that the international community needs. Existing laws do not go far enough to stop serious ecological and climatic harms. The level of damage and destruction that the people and the environment have suffered and will suffer, at the hands of dangerous industrial activities, warrants criminalisation at the international level. The world needs ecocide to become an internationally recognised crime – a crime at par with genocide, crimes against humanity, war crimes and the crime of aggression, four serious crimes prosecutable at the International Criminal Court (ICC). With the introduction of ecocide crime, we outlaw that which is dangerous. By formally having it on paper at the ICC draws a legal line for unacceptable behaviour and in turn prohibits, prevents and pre-empts dangerous industrial activities that are exacerbating the global climate crisis. The way in which criminal law works is this: without the law, there can be no crime and without a crime, there can be no penalty. I would even go as far as to say that without a penalty, there can be no reparations or restitution, and in cases where the environment suffers, no restoration.

Under international criminal law, individuals of superior responsibility can be held responsible for international crimes. They can include individuals in the government or military, and companies. As with all forms of crime, the intent and knowledge of the individual must be proven. Intent can come in the form of an act or an omission that is supported with the requisite knowledge about the serious consequences of one’s act.

Earth Protectors

Extinction Rebellion in the Global North has been exercising their right to protest by breaking the law out of necessity. Civil disobedience is a tried and tested method of enacting the right laws. By operating from a position of conscience, they are also exercising their freedom of conscience under Article 9 of the Universal Declaration of Human Rights. Ecological Defence Integrity, an NGO co-founded by the late Polly Higgins, aims to make ecocide crime an international crime. As a crowd-funded organisation, people sign up as Earth Protectors to help fund the work of taking ecocide law forward. The fund is used to help get the government representatives of small island states to the ICC Assembly of States Parties so that they may be able to call for the crime of ecocide to be introduced. In return for their contribution, Earth Protectors gain access to a Trust Document that can be used in court as documentary evidence to show that they are trustees of the earth and conscientious Earth Protectors. That document is evidence to say that one is seeking to have ecocide law in place to protect the earth. Are you with us?

Bonus: Paragraphs not included in the final draft

The Science

The science is simple. Carbon dioxide is when 1 carbon joins 2 oxygen atoms: C + O2 = CO2. Burn any organic matter and its content of carbon combines with oxygen. A litre of petrol is equal to 2.4kg of CO2. To drive 100km, an average of 5 litres of petrol is needed. This means, 120g of CO2 is released into the atmosphere for every kilometre driven. At the industrial level, the amount of CO2 released into the air, as a result of refining or burning crude oil into commercial products, is gargantuan. As much as 1 million barrels, each containing 160 litres of crude oil, can be processed at a single refinery daily. There are as many as 700 refineries in the world.

It comes as no surprise that when you add up the CO2 emissions from regular cars and the burning of tropical forests and peatlands (which by the way is also plenty), and other gases, such as nitrogen oxide that is released from other high-performance and diesel cars, methane from livestock and rice fields, and chlorofluorocarbons (CFCs) from refrigerators and air-conditioning, the result is a sharper increase in the overall number of greenhouse gases in the atmosphere. Such a concentration of greenhouse gases is catastrophic as it surpasses the natural ability of the planet to achieve a harmonious liveable equilibrium.

So Dutch readers, get the Handbook “Nu Het Nog Kan” (English: “While You Still Can”) now! At your local bookstores #kooplokaalookonline or here. It was my pleasure to write for Extinction Rebellion NL’s very telling but hopeful handbook. Love & Rage, Shirleen