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Negligence
that is premeditated, or a calculated risk against peaceful enjoyment, should in our view be
treated as murder (or attempted murder), where such maladministration or
other development or enterprise causes harm to a naturally occurring asset,
such as a water supply for animals or humans. The same principle should be
applied to mass clearing of forests that have existed for years as part of a
balance ecosystem, and where man in destroying that natural habitat,
unbalances nature. For example, in unlocking carbon and removing the trees
as an oxygen provider.
According
to Polly Higgins, 'Ecocide' is the extensive loss or damage or destruction 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.
Currently it is not an international crime, climate justice is predominantly a “soft law”. Where the
United Nations has failed to address the wider issue of justice through annual negotiations, the International Criminal Court has the ability to prosecute, if there is law. Serious international crime can be and is prosecuted in many countries throughout the world, under the principle of universal jurisdiction. The amendment to the
Rome Statute for Ecocide Law, protects from serious harm both people and planet from corporate and climate activity.
Dangerous industrial activities and climate disasters are the ultimate responsibility of the very people who have the power to prevent the serious harm, at a State and corporate level. Ecocide law is a legal route that will significantly abate climate chaos, protect millions of lives and prevent serious harm by imposing State and corporate responsibility for dangerous industrial and climate activity. Ecocide law has a history spanning nearly 50 years.
Criminalising ecocide at an international level requires one or more State Parties to the Rome Statute of the
International Criminal Court to propose the inclusion of ecocide to the existing “most serious crimes of concern”. Existing laws, including international declarations, treaties and protocols, do not impose a universal legal requirement to uphold State and corporate responsibility for serious harm. In response to this, a draft law of Ecocide was submitted by Polly Higgins in April 2010 into the United Nations Law Commission.
POISONING
WATER SUPPLIES - Wealden had been preventing development anywhere
near this well for over 30 years, but then when they got the chance to
cause harm to their long term adversary, they leapt to granting consent
for houses that they knew would create problems for those reliant on
drinking water from this historic landmark. Normally, you'd think it was
just an administrative error. But when you look at the years of
conspiratorial deception and denials, as a member of a jury of 12 good
men and women, you may conclude that the failure to address groundwater
contamination issues, was deliberate, with malice aforethought.
The Model Law – proposed amendment to the Rome Statute
THE CRIME
Ecocide crime is:
acts or omissions committed in times of peace or conflict by any senior person within the course of State, corporate or any other entity’s activity which cause, contribute to, or may be expected to cause or contribute to serious ecological, climate or cultural 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.
To establish seriousness, impact(s) must be widespread, long-term or severe.
For the purposes of paragraph 1:
(a) ’climate loss or damage to or destruction of’ means impact(s) of one or more of the following occurrences, unrestricted by State or jurisdictional boundaries: (i) rising sea-levels, (ii) hurricanes, typhoons or cyclones, (iii) earthquakes, (iv) other climate occurrences;
(b) ’ecosystems’ means means a biological community of interdependent inhabitants and their physical environment;
(c) ’territory(ies)’ means one or more of the following habitats, unrestricted by State or jurisdictional boundaries: (i) terrestrial, (ii) fresh-water, marine or high seas, (iii) atmosphere, (iv) other natural habitats;
(d) ‘peaceful enjoyment’ means peace, health and cultural integrity;
(e) ‘inhabitants’ means indigenous occupants and/or settled communities of a territory consisting of one or more of the following: (i) humans, (ii) animals, fish, birds or insects, (iii) plant species, (iv) other living organisms.
4. For the purposes of paragraph 1: the Paris Agreement of 4 November 2016 shall be considered to be established premise for prior knowledge by State, corporate or any other entity’s senior person, or any other person of superior responsibility.
THE ELEMENTS
The perpetrator’s acts or omissions caused, contributed to, or may be expected to cause or contribute to serious ecological, climate or cultural loss or damage to, or destruction of ecosystem(s) of a given
territory(ies).
The perpetrator’s activity has or will severely diminish peaceful enjoyment by the inhabitants.
The perpetrator had knowledge or ought to have had knowledge of the likelihood of ecological, climate or cultural harm.
The perpetrator was a senior person within the course of State, corporate or any other entity’s activity in times of peace or conflict.
What ECOCIDE LAW will achieve
LAW OF ECOCIDE
• Prevents the risk of and/or actual extensive damage to, destruction of or loss of ecosystem(s);
• prohibits decisions that result in extensive damage to or destruction of or loss of ecosystem(s);
• pre-empts decision-making of a political, financial and business nature that may lead to significant harm.
DUTY OF CARE
Superior responsibility provision: an international and transboundary duty of care on any person or persons who exercises a position of superior responsibility, without exemption, in either private or public capacity to prevent the risk of and/or actual extensive damage to or destruction of or loss of ecosystem(s).
Business provision: an international and transboundary duty of care on CEOs and directors of a business and/or any person who exercises rights over a given territory to ensure ecocide does not occur.
Political provision: an international and transboundary duty of care on governmental actors, specifically Heads of State and Ministers with environment/energy/climate change portfolios, to ensure ecocide does not occur and to provide emergency assistance before, during and after to other territories at risk or adversely affected by ecocide.
Financial provision: an international and transboundary duty of care on financiers, investors, CEOs and directors of any banking and investment institutions who exercises a position of superior responsibility, to ensure ecocide is not financed.
TRUSTEESHIP
A law of Ecocide also imputes a legal duty of care in the event of natural catastrophe (e.g. rising sea-levels, droughts, earthquakes). The United Nations Trusteeship Council’s purpose (as one of the founding pillars of the UN Charter) was to assist territories that were unable to self-govern; it is proposed that the Trusteeship Council re-open it’s doors and be put to use again to assist non-self governing territories that have been or are at risk of being harmed by Ecocide[5]. It can be used to assist territories suffering from Climate ecocide as well as ecological ecocide and cultural ecocide.
By re-opening the UN Trusteeship Council chamber (set in abeyance since 1994), Member States that are facing ecocide, and thus can no longer self-govern, have a ready-made forum in which to appeal to and receive aid. For instance, nations seeking a humanitarian response to flooding and rising sea-levels could then seek the assistance of the international community under the auspices of the Trusteeship Council, to ensure that nearby nations are supported as they give safe harbour to frontline States that have or about to suffer climate ecocide.
ROME STATUTE
The Rome Statute of the International Criminal Court is the governing document which sets out the existing international Crimes. The international crimes currently provided for under the Rome Statute do not however address:
• the protection of ecology (non-human inhabitants of a territory);
• the protection of indigenous and cultural rights (for example when there is destruction of a traditional way of life); or
• loss, damage and destruction that occurs in peace time.
Ecocide crime shall address all of this and was included in earlier drafts, until it was removed in 1996.
The Process
There are currently 124 nation States that are signatories to the Rome Statute. Amendments to the Rome Statute of the International Criminal Court must be proposed, adopted, and ratified in accordance with Articles 121 and 122 of the Statute. Any State Party to the Statute can propose an amendment. Adoption of the proposed amendment is by a two-thirds majority vote in either a meeting of the Assembly of States Parties or a review conference called by the Assembly. An amendment comes into force for all States Parties one year after it is ratified by seven-eighths of the States Parties.
Any amendment to articles 5, 6, 7, or 8 of the Statute (the crimes) only enters into force for States Parties that have ratified the amendment. A State Party which ratifies an amendment to Articles 5, 6, 7, or 8 is subject to that amendment one year after ratifying it, regardless of how many other States Parties have also ratified it. (Article 121(5)) For an Article 5, 6, 7, or 8 amendment, the Statute itself is amended after the amendment comes into force for the first State Party to ratify it. (Article 122(2))
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[1] Polly Higgins, Eradicating Ecocide: laws and governance to prevent the destruction of our planet, 2010 (2nd Ed 2015), pp. 61- 92. See also her second book, Earth is our Business, 2011.
[2] Preamble, Rome Statute.
[3] See iecc-tpie.org, who are calling for an International Criminal Court for the Environment.
[4] See icecoalition.com and see also the International Court for the Environment Foundation.
[5] ‘Ecocide is the missing 5th Crime Against Peace’ Summary Document setting out the history of Ecocide law. First published in 2012 and updated in July 2013. See: SAS Ecocide Project
[6] See Chapter 6, Polly Higgins, Eradicating Ecocide: laws and governance to prevent the destruction of our planet, 2010 (2nd Ed 2015), pp. 72 – 92.
ECOCIDE
LAW IN NATIONAL JURISDICTIONS
Russia – Article 358
Massive destruction of the animal or plant kingdoms, contamination of the atmosphere or water resources, and also commission of other actions capable of causing an ecological catastrophe, shall be punishable by deprivation of liberty for a term of 12 to 20 years.
Kazakhstan – Article 161
Mass destruction of flora or fauna, poisoning the atmosphere, land or water resources, as well as the commission of other acts which caused or a [sic] capable of causation of an ecological catastrophe, –
shall be punished by imprisonment for a period from ten to fifteen years.
Kyrgyz Republic – Article 374
Massive destruction of the animal or plant kingdoms, contamination of the atmosphere or water resources, and also commission of other actions capable of causing an ecological catastrophe, shall be punishable by deprivation of liberty for a term of 12 to 20 years.
Tajikistan – Article 400
Mass destruction of flora and fauna, poisoning the atmosphere or water resources, as well as commitment of other actions which may cause ecological disasters is punishable by imprisonment for a period of 15 to 20 years.
Georgia – Article 409
1. Ecocide i.e. contamination of the atmosphere, soil, water resources, mass destruction of fauna or flora, or any other act that could have led to an ecological disaster, –
shall be punished by imprisonment for a term of twelve to twenty years.
2. The same act committed during armed conflicts, – shall be punished by imprisonment for a term of fourteen to twenty years or with life imprisonment.
Belarus – Article 131
Intentional mass destruction of flora or fauna, or poisoning of atmospheric air or water resources, or committing other deliberate actions capable of causing an ecological disaster (ecocide) -are punished with imprisonment for a term of ten to fifteen years.
Ukraine – Article 441
Mass destruction of flora and fauna, poisoning of air or water resources, and also any other actions that may cause an environmental disaster, –
shall be punishable by imprisonment for a term of eight to fifteen years.
Moldova – Article 136
Deliberate mass destruction of flora and fauna, poisoning the atmosphere or water resources, and the commission of other acts that may cause or caused an ecological disaster shall be punished by imprisonment for 10 to 15 years.
Armenia – Article 394
Mass destruction of flora or fauna, poisoning the environment, the soils or water resources, as well as implementation of other actions causing an ecological catastrophe, is punished with imprisonment for the term of 10 to 15 years.
LINKS
& REFERENCE
https://ecocidelaw.com/polly-higgins-ecocide-crime/
https://ecocidelaw.com/existing-ecocide-laws/
https://ecocidelaw.com/wp-content/uploads/2021/04/Amicus-ICC-crime-of-ecocide-amendments.pdf
https://ecocidelaw.com/polly-higgins-ecocide-crime/
https://ecocidelaw.com/existing-ecocide-laws/
https://ecocidelaw.com/wp-content/uploads/2021/04/Amicus-ICC-crime-of-ecocide-amendments.pdf
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