Until relatively recently, legal systems all over the world have been positioned against the environment’s conservation. The path toward legal reform requires a delicate balance between new and existing principles that ensure the preservation of nature, and thus environmental and human rights, for present and future generations.

Humanity’s relationship with nature is in a new phase, where environmental and human systems are inextricably determinative of one another and their respective fates. With recent reports suggesting we have passed six of nine planetary boundaries, there is a tangible shift in understanding that we cannot sustain the illusion of unchecked interference with our finite natural environment, and that our shared planet, and even outer space, has a hastily depleting capacity to sustain such practices. 

Unlike human rights, the environment doesn’t have a comprehensive and foundational legal provision that reflects the severity of violations committed against it. Accompanied by very weak monitoring and enforcement, environmental protection is misaligned in both theory and procedure. For example, Article 4(2) of the Paris Agreement – widely hailed as the best international commitment on climate change to date – only states parties shall “aim” to achieve objectives, a non-binding obligation that doesn’t emphasise the need for strong environmental action. The framing of environmental offences as regulatory infractions enables environmental damage through the acquisition of an appropriate licence, and environmental regulation is frequently contingent upon decisions of administrative authorities, often overlooking cultural sensitivities. Thus, environmental crimes have been regarded by European prosecutors and judges as difficult to identify, define and enforce effectively.

By their very nature, regulation of environmental issues necessitates a global and inter-disciplinary approach to reflect the complexity of our interrelated climatic system. Repercussions of environmental crimes and harms are transboundary and trans-generational, and the challenge of legal reform is simultaneously inter-spatial and inter-temporal. It is therefore fundamental to propose comprehensive and inclusive legal frameworks that reach a wide variety of actors and contexts and preserve rights for nature and humans. Given the scale of the crises, it is also essential to pose effective offences that can adequately deter and punish the worst forms of environmental harm.

The assumption that capital holds the sole solution to the climate and ecological crises conceals the systemic roots of these crises, embedded in current patterns of global production, consumption, finance and the organisation of social life. In recent years, there have been significant advances in environmental law and the protection of environmental resources, not only for their human-derived value but for their intrinsic value in themselves. 

With the changes onset by capitalism, accelerated by the neoliberal era of the 1980s, the world has bent further and further to the insatiable drives of a social system predicated on infinite growth, changes that depend on the exploitation of both citizens and the environment. Many are acquainted with Marx’s arguments to this effect, but neglect the fact that the environment, predominantly since this era, has also been viewed as a tool for profit. The ideological discourse that grounds this is “concerned about human impacts on the environment but at the same time deeply romantic about the existing capitalist world”, which is accepted a priori as progressive development and anthropocentric in our agency as a species.

The logic of unlimited growth has enabled ecocide: the wilful or reckless destruction of conditions that maintain life such as ecosystems. It is clear all human actions result in an ecological imprint, and it is undoubtedly important that environmental law acknowledges and reflects competing considerations such as the right to development, which is why it is so fundamental to create a framework of safety around these inevitable considerations. Increasingly, experts are convinced a paradigm shift is vital that advocates the interdependence of human and non-humans based on a community of interests. 

Criminal law can play a pivotal role in affirming our inherent interdependencies with the natural world and our collective duties to it. As the ultimate sanction, it is important that criminal law has a restricted field of application: we must extend our vision beyond theories of punishment to understand criminal law’s fundamental role in facilitating coordination around essential collective social values. Due to the different nature of their legal frameworks, reconciling environmental law with criminal law raises complex new issues, although there are strong reasons to supplement existing environmental legal frameworks with a criminal law backstop. A new crime of ecocide, a preventative and all-encompassing framework, can rectify an existing taboo in international environmental regulation: the most serious destructions of nature are morally reprehensible and thus criminally liable acts. Ecocide law therefore holds significant potential to usher in a new era of environmental governance that can ensure exacting protection for nature, on Earth and in outer space.

Ecocide Law  

Ecocide is not a new concept in domestic or International law. For example, a provision with similarities to ecocide is found in Article 8 (2)(b)(iv) of the Rome Statute, which provides for the crime of “intentionally launching an attack in the knowledge that such attack will cause…widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.” Ecocide was almost a crime in peace time too, and was included in early drafts of the Rome Statute. The crime has been promoted at various high-level conferences such as the UN Stockholm Conference on the Human Environment in 1972, been subject to various juridical formulations — such as Professor Richard Anderson Falk’s draft Convention, published by the competent UN Sub-Commission on the prevention and punishment of genocide — and has been debated amongst the International Law Commission regarding the “Draft Code of Crimes Against the Peace and Security of Mankind”. The crime gains traction at legal, academic and grassroots levels for its possibility to provide an enforceable legal measure that can deter the severest forms of environmental damage. 

Adapted from existing international law, the most authoritative definition of ecocide defines the crime as “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment caused by those acts.”

The existing nature of international environmental harm is largely considered technical, scattered and difficult to enforce, and does not account for the reality of nature, and the damage committed against it, as interconnected and occurring on a multitude of scales.

An Independent Expert Panel considered these limitations when creating the definition of ecocide. To ensure all aspects of the environment, including its interlinkages and interconnections, were included, the environment is defined on the basis of earth-system science and the five main spheres of the Earth — biosphere, cryosphere, lithosphere, hydrosphere and atmosphere — as well as outer space. 

The qualitative nature of the definition ensures it applies to any actions, whether committed intentionally or through gross negligence, that directly or indirectly expose the environment in its various components to an immediate risk of substantial degeneration, endangering the safety of the planet and the survival of humankind. This is important to change behaviour: faced with an ambiguous list of legally prohibited actions against the environment, a potential perpetrator may spend a significant amount of time or resources to evade legal liability. A general standard of significant harm shifts mindsets from how do I avoid fitting into this list, toward how do I avoid creating that level of severe environmental harm.

The “unlawful” element of the definition promotes a strengthening of existing environmental laws, as they would be invoked in ecocide law’s application. The “wanton” standard — referring to an action’s potential harm in relation to the social and material benefits anticipated — can reflect the reality of new and emerging issues in environmental law, providing an appropriate analytical tool to ensure that ecocide law is reflective of other human rights. It is essential that environmental provisions can operate both independently and interdependently, ensuring that impunity does not result because of legal technicalities. Ecocide law, according to a continuum of enforcement through domestic criminal courts to the ICC, would further prevent severe and widespread or long-term environmental offences that occur under the existing protections of a licence, those committed in countries with poor environmental laws, and areas beyond national jurisdiction, like the high seas and outer space.

Ecocide Law and International Environmental Governance

Society’s relationship with nature under extractivist capitalism largely reflects “individualism and individualisation, leading to the appropriation, monopolisation, commodification and financialisation of nature against a backdrop of scarce natural and living resources and the deterioration or dysfunctioning of ecosystems”. The success of this system is largely contingent upon insufficient wages, the exploitation of natural resources and societal indifference to environmental and social issues. It is well accepted that the unhindered commodification of nature has accelerated climate change. Globalisation in particular is understood as a key driver of environmental and biodiversity damage due to increased consumption, production and movement of goods, along with their associated GHG emissions. Consequently, legal measures proposed for governing the climate and ecological crises must be aware of these considerations, in conjunction with the more specific, and just as significant, local and national elements to environmental governance. 

The definition of ecocide law largely reflects a “natural commons approach”, where the environment and its regulation is conceived as a relational and dynamic system, composed of a web of interdependent relationships between humans, non-humans and the planet. The things or resources classified as natural commons thus form part of a whole called “common heritage”. By including them in this heritage they can be collectively managed with the purpose of preservation. This perspective conceives law’s role in environmental protection distinct from the dichotomy between a subject and object or an exploiter and exploited, towards relationships of solidarity and greater balance. Conceptualising environmental resources as “common heritages of humankind” implies that such resources belong to all of humanity in collectivity, available for everyone’s use and benefit, taking into account future generations and the needs of developing countries. 

From the perspectives of Indigenous peoples and local communities across the world, the emphasis on resources and relations to things that are held as common ownership is critical, where community and kinship relations, and relations with nature and life are highly intertwined with the idea of commons. The legal construction of natural commons proposes an alliance of companionship between species and nature. On this basis, the common heritage principle embodies new connotations, highlighting our “special responsibility to safeguard and wisely manage the heritage of wildlife and its habitat, which are now gravely imperilled by a combination of adverse factors”.  The collective responsibility to preserve nature is referred to as “Earth stewardship”. 

There has been a resurgence of interest in community-based conservation and resource management systems that use customary practice and local knowledge, as it is no coincidence Indigenous communities are guardians of roughly 80% of the world’s biodiversity. On a local scale, commons management, when implemented correctly, has consistently led to improved rates of regeneration, protection and biodiversity. Increasingly, it has been evidenced that the assumption that common-property regimes will lead to the famous “tragedy of the commons” — in that allowing open access and unrestricted demand for common resources will inevitably lead to over-exploitation, requiring privatisation —  is simply a misunderstanding of how commons operate successfully. When Hardin referenced a “a pasture open to all” in his depiction of the commons tragedy, he was referencing an ungoverned, law-less, open-access scheme from which nobody could be excluded. This is not a reference to common property regimes as properly managed, but a resulting collective action problem. Climate change itself is a clear collective action problem, for example. The distinction between common property and open-access is well understood in the relevant literature. Moreover, a growing body of empirical evidence exists that demonstrates users of commons are able to work their way out of the trap envisaged by Hardin and, in fact, environmental management according to theories of the commons reveal significant success. Therefore, the necessary question in reviewing the suitability of common property schemes in global management of the climate and ecological crises is not whether common property is feasible at all, but rather under what (legal) conditions.

Rather than promoting rigid protection and management of landscapes under centralised state agencies and institutions, community management seeks to incorporate the perspective of Indigenous and local peoples, setting up a negotiable framework that supports local innovation and experimentation and is thus tailored to the specific requirements of the environmental resource. Elinor Ostrom and colleagues have identified that the distillation of certain features in common property regimes across the world, which have proved effective in ensuring the sustainable management of common-property resources: a clearly defined community of resource users; a clearly defined resource; the presence of clearly defined rules clarifying rights, responsibilities and sanctions for non-compliance; effective monitoring systems; graduated sanctions matched to the level of the offence; cheap and easily accessible conflict resolution mechanisms; minimal recognition of rights to organise; and systems for adaptive management. Community models adapt technical and regulatory norms to specific local conditions. The challenge is understanding how to translate local principles to global environmental governance issues, such as transboundary environmental crime. 

Existing international law, in conjunction with ecocide law, supports this possibility. In current international law, the “common heritage of mankind” (CHM) generally refers to the high seas, outer space and celestial bodies, all of which may not be subject to the sovereignty of any state, and states are bound, at least in theory, to refrain from actions that adversely affect their use by other states. The term mankind here reflects a collective concept referring to an entity comprising all people in the world. In Article 137(2) of UNCLOS for example, the rights are vested in “mankind as a whole”. In terms of scope, mankind is “inter-spatial” and “inter-temporal”. Since mankind is a separate legal entity representing all people in the world, the CHM, as mankind’s property, should meet the demands of mankind. As the Institute for Advanced Sustainability Studies note, “the principle of the Common Heritage of Mankind demands intra- and intergenerational equity, and entails a particular respect for transparency, accountability and environmental sustainability”. On this basis, the “common heritage of mankind” principle highlights our “special responsibility to safeguard and wisely manage the heritage of wildlife and its habitat, which are now gravely imperilled by a combination of adverse factors”. 

As the State of South Africa has highlighted: “[T]he common heritage of mankind principle is not solely about benefit sharing. [It] is just as much about conservation and preservation. The principle is about solidarity; solidarity in the preservation and conservation of a good we all share and therefore should protect. But also solidarity in ensuring that this good, which we all share, is for all our benefit.” 

In spite of our traditional top-down international models of environmental regulation, the “common heritage” of humankind principle has sustained conceptions around particular global resources for decades, and the relations of Indigenous communities with the environment for millennia. This different perspective and practice reveals a different picture for environmental protection possibilities, and the unquestionable success of common-property management schemes globally in ensuring more exacting environmental protection than traditional state-based models. Reiteration of such principles at the international level is one important step, however the critical issue is integrating global and local perspectives in a legal framework of environmental protection which is neither excessively punitive — and therefore hindering other crucial rights such as the right to development — or neglectful of vital ecocentric mainstreaming to international and national societies.

Ecocide law is relevant to theoretical and procedural elements to protection of the global commons. At the root of the growing movement for the international criminalisation of ecocide is the protection of the Earth and the biosphere as the common good of humanity, which requires necessary interventions to be taken in order to stop and avert the dangers for present and future generations. Along with a greater assurance of enforceability of environmental and therefore human rights, ecocide law offers an avenue for shifting general values underlying the legal framework, from anthropocentric to ecocentric, a move from a relationship of dominance to mutual reciprocity and respect for the environment in law. Ecocide law’s theoretical basis is that of a universal value: respect for our natural environment. Moreover, with a rooting in criminal law — a legal framework constituted by morality and accountability, which is enforceable in national and international courts — ecocide law can also represent a less political and more localised avenue for environmental protection than the existing state-based liability international framework, reflecting the “common heritage of mankind” principle in theory, with accompanying procedural protection strategies. 

The Role of Enforcement

Research details that in order for regulation of the commons — at local and global levels — to be effective, it must be rooted in adequate enforcement. For example, in a discussion of the Marine Areas Beyond National Jurisdiction, it was argued that “ideally, a central international governing authority would apply the same policies and rules to all countries activities’ in the ABNJ”, which would “likely produce more coherent and consistent results than a Paris-style system of each country formulating its own policies and submitting them to a central authority for review”. It was further highlighted however that hybrid governance models, or smaller, regional, authorities are also effective when they include strong reporting and enforcement requirements. Similar results were obtained in research by Helen Ross and James Innes on cooperative management of the Great Barrier Reef, where they found that “for a range of factors that we have identified as necessary to successful co-management in the context of the Great Barrier Reef, we advocate treating the non-negotiable ‘givens’ as parameters, outlining a flexible shared space where common interests can be developed”. Research of another commons, outer space, showed that top-down regulations, combined with monitoring and sanction mechanisms, could ensure greater sustainability in orbit.

Where clear and non-discriminatory rules facilitate convergence towards cooperative behaviour, enforcement mechanisms can dissuade “free-riding”. Ecocide law is reflective of this framework, as the crime would not neglect the role of adaptive, community-oriented environmental governance, while providing clear and enforceable rules for key decision-makers. 

Substantively, ecocide law under the Rome Statute could provide clear parameters and homogenised rules of environmental protection to the international community. Procedurally, national, regional and international levels of an ecocide crime could provide the multi-spectred and networked enforceability, and prevention of impunity, that effective environmental protection, and consequently protection of all our human rights, requires. 

The place of criminal law in tackling the climate and ecological crises is a key question. More and more stakeholders see the merit of a legal parameter, and criminal law is the guarantor of social values deemed essential to the collective. An intentionally evolving legal discipline that follows changes in society, encompassing the social needs of the time and reflecting new challenges. This now includes the inescapable emergence of the issue of the environment and the narrative we sustain globally around it. To this effect, terminology and its associated narrative is central to the ecocide debate, most prominently in the 2021 definition. As Daryl Robinson has argued, “the argument in favour of ‘ecocide’ [etymologically] is that it is striking: it is the proposed crime of ‘ecocide’ that has stirred public and political interest and passion, whereas anodyne labels have not. The expressive function of a label is a legitimate consideration; an important function of criminal law is ‘message’.”

Legal history denotes a traditional reliance on criminal law by a sovereign state as a primary and effective way to solve numerous social, political and economic problems. As Andrew Ashworth has highlighted, criminal law’s boundaries are “historically contingent” – depending not on the product of principled inquiry or consistent application of a given set of criteria, but the fortune of successive governments, campaigns in the media and the activities of various pressure groups. 

With increasing engagement and support at governmental, academic and grassroots levels, ecocide law stands to promote a new era of environmental governance: one that can provide a useful cross-sector outer-boundary through which to examine business, prevent the most destructive projects, and invoke investment and action in more sustainable practices. It also reflects a deeper respect of nature and our duties as its steward for future generations.

Criminal law has been historically used to guide societies, protecting our most fundamental rights and ensuring social order. The International Criminal Court was devised with the understanding that some offences are so grave their criminalisation warrants further international protection and a greater emphasis on transboundary cooperation on the world’s most serious crimes. In the face of catastrophic climate and ecological breakdown, and recent estimates of a near guaranteed warming close to two degrees, ongoing hesitations and protracted deliberations are no longer possible. We need exacting legal sanctions that punish individuals who threaten disruption of our most vital life systems: if not from an ecological appreciation of our environment and its species, but from an anthropocentric lens regarding the delivery of our most basic human rights. 

As the Rome Statute professes in its preamble, its ambit is to protect the peace and security of international society from the gravest crimes that “shock the conscience of humanity”, for present and future generations. It is intuitively clear that significant environmental harms threaten not only environmental rights but also all other human rights, for present and future generations. There is a compelling argument that this consideration should be transposed into legal rules and enforcement. 

We would be wise to reflect on the potential consequences of further exploitation of nature and put limits in place to ensure any developments no longer reflect a one-sided relationship. Protecting our planetary boundaries protects our peace and security, and the route to action in this regard is enforceable law, for people and nature, on Earth and in space.

Ecocide may be conceived as the missing crime against peace.

Anna Maddrick is a Climate Adviser at the Permanent Mission of the Republic of Vanuatu to the United Nations, New York, and PhD student at the University of Bologna, focusing on ecocide law.

The post Our Common Heritage: the Role of Ecocide Law appeared first on eco-nnect.

Jojo Mehta is a force of nature. Her connection to the Earth was inspired by her Mother, a songwriter and poet, whose inspiration emanated from an emotional and spiritual connection to land. 

“I think of her as a kind of English/Celtic Indigenous voice, and the kind of music she writes is largely from the English folk tradition.” 

Jojo grew up swimming in the waters of her Mother’s environmental worldview, in the beautiful landscape of Stroud, a small town in the Cotswolds in the south west of the UK. “Of course, as a teenager, I couldn’t wait to get to the city and jump into life”, so her 20s and 30s were centred in London, working in travel, design and manufacturing, along “a meandering path… with a common thread of communication”. At 32 she got married, and her husband suggested moving to the countryside so their kids could grow up with a connection to nature. 

“We moved back to this area that I grew up in, this beautiful area of the Cotswolds and I remember having this moment, it was actually in our garden not far from Stroud, and I had this experience of reconnecting with this land. I realised it meant something to me, it felt like home, not just physically, but energetically… I remember feeling a deep sense of commitment: whatever the focus of my life moving forward, it would be in commitment to this land.”

Over time, Jojo has strengthened and deepened the connection with her homeland.

“I find that grounding myself quite literally on the ground every day is fundamental to my wellbeing. If I’ve been away, and I travel quite a bit, I can’t wait to get my shoes and socks off and get into the garden and connect directly with the land, and doing that every day, there’s this real sense that grows over time of the cyclical nature of the seasons, and also becoming aware of how that rhythm is now slightly off and potentially becoming more so. I mean I watch the cycles of what the plants and the trees are doing and sometimes they’re now doing quite unusual things. But it’s that sense of responsiveness to the cycles of nature and connecting to that is very deeply stabilising, it feels really important, it feels like a meditative practice.”

It was during those early years of living back in Stroud, committing to and connecting to that land, when Jojo’s life began to shift.

“I had become what we might call an armchair activist, you know, I’d be signing petitions and sending letters to parliamentarians, but there was a moment about ten years ago where that shifted to another level, when I got up out of that chair and went okay, boots on the ground, I need to get involved in this. It was actually my Daughter who was the catalyst. I had started to learn about fracking, hydraulic fracturing, which is an incredibly polluting way of bringing oil and gas from deep in the ground. It was already being practiced in the US, and there was consideration of bringing the technique over to the UK, and I was very upset about this when I discovered what it was. Not only was it incredibly polluting, it wasn’t even productive or economically viable and it just seemed like such a bad idea on every possible level. 

“I remember talking to my friends and family about it, and my Daughter, who was five at the time, just burst into tears and said, ‘Mummy if they’re poisoning the ground they must know they’re poisoning themselves, you have to call them and tell them to stop or they’re going to die.’ And it was in that moment, I was thinking my five year old understands this, why do we all not understand this? It feels so intuitively obvious. And there was a call to responsibility there, responsibility in the sense of response to her and thinking about her. If this is the world that she’s growing up into, if I know that this is happening, how, as her Mother, can I not do something about it? I remember saying at the time, ‘I don’t know how much difference it will make, calling this big company, they’re not going to listen to me’, and she said ‘but there must be someone you can talk to. She said maybe you could speak to the voting man.’ She called him the ‘voting man’ because I had explained what that system was in fairly gentle terms…

“We had recently been to the local elections, and she and her brother had been doing cartwheels around the ballot box. On my daughter’s suggestion I then ended up in this conversation with our local elected parliamentarian, our MP. And this politician did that politician thing of avoiding my questions, and I remember coming out of that meeting thinking that is never happening again, I’m going to research and inform myself so that I know exactly what I’m talking about and I can’t be fobbed off. So you could say a determination crystallised in that moment. 

“I started researching, I started writing leaflets, I started giving talks, I started organising demonstrations and surveys and all of this more active work. And it was through that work that I met this remarkable pioneering lawyer, a barrister, Polly Higgins.”

Polly Higgins was another force of nature. She had already been working for several years advocating for the criminalisation of the worst harms to nature or “ecocide”, as she called them.

“I met Polly through mutual friends. She had just moved to this area (around Stroud), having fallen in love with the landscape here, and she was researching a potential case around fracking, and our friends said to her, well you need to talk to Jojo because she knows all about that. By this time I’d done all of this research and I was doing all of this work and started to do public speaking and running demonstrations, I was very active… And I think within half an hour of talking with each other, we’d realised there was a real kindred spirit thing going on. She was deeply practical, deeply committed, she was sharp as a tack, she was a fantastic barrister, but she was also hugely inspiring as a person, she had this enormous presence, she was charismatic, and when we look back, she was the absolute figurehead of this initiative.”

Polly’s work was focused on this term ecocide, a legal idea that had been discussed since the 1970s. 

“This word ecocide gave people a way of speaking about the worst harms to nature, what they could see happening but didn’t necessarily have a word for, and I think that is a powerful thing. It comes from Greek and Latin, from oikos, which means home in Greek, and caedere from Latin to kill, so it means to kill one’s home. I mean we’ve obviously come to associate eco with nature, which makes it in a way even more clear that it means killing nature, but I think it’s interesting to see the origins, particularly in relation to how deeply important Earth as home and land as home is. That etymologically ecocide means to kill one’s home, I think that’s fascinating.“

Polly brought ecocide back into global discussions around environmental harm, spreading awareness of the concept through the political and legal arenas, and through Jojo, ecocide began to make its way through activist networks too.

“Polly was working as a barrister in the employment law sphere, and she was just starting to hit the big time in the sense that her career was taking off in the early 2000s, and she had this epiphany moment. She was looking out from the Royal Courts of Justice, looking over London and thinking, it’s not just my clients that need a good lawyer, it’s actually the Earth herself that needs a good lawyer. She started thinking of how to create a legal duty of care for the Earth, and that inquiry ultimately led her to this initiative to criminalise the worst harms. 

“She started off looking at various different things, like rights of nature, there was the Earth Charter — the Universal Declaration of the Rights of Mother Earth — which was adopted by Bolivia, but she discovered something when she started researching international criminal law. The Rome Statute sets out international crimes and created the International Criminal Court. The treaty was signed in 1998, but before that, through the 90s when it was being developed, it was known as the Draft Code of Crimes Against the Peace and Security of Mankind, and was being developed by the International Law Commission. Polly discovered that the Draft Code originally had a clause that would have addressed severe, widespread and long-term harm to the environment. In other words an ecocide clause would have been in there, but it didn’t make the final treaty. So when the Rome Statute was signed, it included three crimes: genocide, crimes against humanity, and war crimes (the crime of aggression was added later), and the environmental clause was dropped without a vote. All they could find in the history of those meetings was that certain countries had stood in the way or had objected to it in discussions: the USA, UK, France, the Netherlands and, at one point, Brazil.

“This was before the school strikes led by Greta Thunberg, it was before Extinction Rebellion, the Sunrise Movement, it was before the big IPCC reports, so it was before the world really started to wake up to the climate crisis. At that time, the idea of creating an international crime of ecocide felt a bit extreme to a lot of people. Now of course it feels more like common sense, it really is starting to feel like something obvious in terms of creating a parameter that says ‘this far and no further’. And I think there has been a realisation that the intent is not normally to destroy the environment specifically, it’s normally to make money or to extract minerals or to farm meat or whatever it is, but the consequences of that level of destruction really are at the international criminal level, in the sense of the widespread, long-term, knock-on effects of destroying the planet, the destruction of multiple species is becoming much more visible and understandable now.

“So Polly submitted a potential definition to the International Law Commission and started talking about ecocide from about 2010 onwards. And in 2011 she had the opportunity to set up a mock trial in the Supreme Court in the UK, which showed that it was a viable criminal law, using the definition she was using at the time, which is not the same as the one we use now, but it was a proof of concept, if you like. And she became quite well-known for this particular route to addressing environmental harm, and that’s what ultimately brought us into conversation, when she moved to the Cotswolds and we started discussing it.”

It was from 2014 to 2017, before the formation of their foundation, that their personal work started to align.

”At the time I was involved in the anti-fracking community and local environmental protesting, but also writing and public speaking. Polly did not want to be seen as an activist, she was very much the lawyer, and I was doing public communication and more on the ground demonstrations. We were advising each other — I would be advising on the campaigning side of what she was doing, and she was advising on the legal side of what I was doing — but we weren’t publicly working together, even though we were working together quite closely. And through this work, what we realised — because it was still considered quite extreme at that time — was that funders were not that keen, it was hard for her to get philanthropic funding or foundation funding for the work she was doing.

“So in 2016, 2017, we started to put together a public campaign, because what became clear was the financial need for diplomatic work that was beginning through conversations with the Republic of Vanuatu — the Pacific Island republic that has been so crucial to creating legal avenues to address climate change and ecological breakdown. There wasn’t the funding to move it forward, for example by having people attend the International Criminal Court and other events and conferences. So this public campaign brought Polly’s and my work together, based on a legal document called the Earth Protectors Trust Fund document.

“It was based on fundraising for the diplomatic work, but Polly wanted to create something that could be used by those in the campaigning field, the activists and the environmental defenders. Effectively when you became a member of our campaign, you would put money into a fund which was used to support the diplomatic work, and there was a statement you would sign, which didn’t oblige you to do anything, it had no duties and obligations attached to it, but it was a statement that says you believe all the living beings on the planet have the right to peaceful enjoyment and existence… and that anything that severely disrupts that should be a crime. And the idea was that environmental defenders or protesters could produce this statement in court as a way of showing that the action they’d taken was not with criminal intent, but as conscientious protectors, and that was a term she coined, conscientious protectors.

“In order for this statement to be used globally in a court of law, she had to get it legalised all over the world, and nobody had ever done this before. She went to a notary in the UK, the people who specialise in cross-border recognition of legal documents, and normally you would engage them if, say, you had a house in Spain and you needed the deeds legally recognised in the UK or something like that. Polly said to them, ‘I want you to legalise this document, I want you to notarise this document for every jurisdiction in the world’, and they looked at her like she was bonkers and said, ‘why would you want to do that, no one’s ever done that’. And she said ‘just tell me, can you do it?’ And they said, ‘we can do it, but it will take us three weeks and it’ll cost you 50 grand.’ And she had just been given a big donation to begin the campaign, and she thought this is what this is meant to be used for, and she said ‘yep, okay, I’ll agree, but you need to sign something to tell me that this is a full and final settlement, you’re not going to ask me for any more money, and you will get this rubber stamped in every jurisdiction in the world.’ So they agreed to it and it actually took them ten months, and they couldn’t ask for a penny more.

“So now there’s this document that’s the fundamental financial and legal basis of this campaign, which has been validated in every jurisdiction in the world. I think there were maybe three small countries that didn’t have the administrative capacity to formalise it, but it has been used by a number of climate protesters in courts in the UK, and it was used successfully… however we ultimately realised this was not because of the document itself, but it was due to the narrative, the narrative of conscience and conscientious protectors. It chimed with the history of conscientious objectors. 

“For me, what is interesting is this interweaving of the grassroots disruptive resistance with high level political and legal discussions. One of the things that has evolved over time has been this clear sense that this law is a ‘no-brainer’, a clear and necessary step and one that has resonated through the corridors of power. I suppose we’ve been more successful than we expected, in terms of how that understanding has percolated through power structures. There are now dozens of governments discussing it. Obviously it’s not universal yet, but it’s really quite advanced considering how short the time span has been.”

2019 was a key moment in the course of the ecocide movement, when Polly Higgins was tragically and unexpectedly diagnosed with an aggressive lung cancer.

“It spread very quickly, she just thought she had a bad cough, but by the time it was discovered it was already past stage four, it was already beyond medical help, and her prognosis was six weeks. She actually only lasted a month after that. It was incredibly fast and it was deeply shocking to her community, her following, everybody, but the way Polly dealt with it was remarkable. I never saw her upset, I never saw her fearful, people around us were kind of falling apart saying ‘oh my God she’s going to die’, and she would just roll her eyes and say, ‘it’s a shame I have to snuff it for the campaign to get some attention, but if that’s the way it’s going to be’, and it was just extraordinary, it was really extraordinary.” 

It was during Polly’s last weeks that global awareness of ecocide began to expand.

“I remember the last work meeting we had was with the founders of Extinction Rebellion, who were planning that April 2019 Rebellion.” 

Just like Stop Ecocide, Extinction Rebellion was founded in Stroud — “there’s obviously something in the soil here” — and they decided to focus their April Rebellion around ecocide. 

“We were looking at a rebrand at the time, because we initially started the campaign under the name Mission Lifeforce. It was a little bit Star Wars-y, a bit activist in that initial vibe, but we realised the message needed to be far more obvious, it needed to do what it said on the tin, and that’s when it became Stop Ecocide. And I remember sitting in Polly’s garden and we had this meeting with one of the founders of Extinction Rebellion, and we looked at each other and realised we’ve got to do that rebrand right now haven’t we? And those were the last weeks of Polly’s life, they were incredibly intense as I was one of the few people that she felt able to see, so I was spending several hours a day with her, I was also running the campaign and I was organising this entire rebrand, so it was an extraordinarily intense. 

“But I remember that last week when she was dying, she was in a hospice, and I remember her watching the week of the Rebellion unfold on her computer, looking through social media, and we had these placards saying ‘Stop Ecocide’, which have now popped up in demonstrations all over the planet. It was the first time she had seen that message she’d dedicated the last ten years of her life to, it was the first time she’d seen it on the streets, and it was all across London, and that was just such a poignant thing. I remember her turning to me and saying in her beautiful soft Scottish accent, ‘oh Jojo, it’s all going to happen now’. And she was right.

“When she passed, some of the community around her had been afraid the work would die with her, and actually the exact opposite happened, so many people got in touch with me as her closest associate and said ‘what can we do to help, how can we make sure that this work continues?’ And this became an extraordinary milestone in the journey of the work, because it was the beginning of the connectivity, of this gradually growing collaboration that has been an absolutely key characteristic of how we’ve driven this conversation. What we’ve realised is that the different sectors, the different arenas in society, the more they connect the faster the conversation grows, so that’s a big part of how we do what we do. 

“For example, we now do a lot of events in big international conferences and we always work with many other organisations, so there’s this collaborative sense of people bringing their own piece of the puzzle and linking it to this law that creates a foundational piece that supports everything, because this whole concept of criminalising the worst harms to nature, it’s not in competition with any other environmental campaign, it supports all of them. If you want to save the koalas it supports you, if you want to reduce massive plastic pollution it supports you, it’s supporting all of these different areas. It is a unifying concept.”

As awareness of ecocide spread, it became necessary to strengthen its definition.

“There have been a number of different definitions of what people mean by ecocide. Various lawyers at different points in time have come up with a definition, including Polly, and we used her definition for the campaign for some time. But there’s a difference between a lawyer saying I think it should be a crime and it should look like this, to something that is acceptable and credible at the political level, where a government will take it seriously and move forward with it. So the biggest, most significant milestone in all of this was the creation of a proposed international definition of ecocide, which was convened by our foundation in 2020. 

“We were approached by some parliamentarians from Sweden who asked if we could commission an international drafting panel for a consensus definition of ecocide, so that these Swedish parliamentarians could credibly take it to their government and say, can you put this forward as an international crime at the International Criminal Court, you know, can you actually propose this? It was a brilliant context that gave us the ability to approach top lawyers from around the world and invite them into this drafting project. 

“So by late 2020, we were gathering a group of lawyers, and for the first six months of 2021 they had this drafting project. It was during lockdown, so it was all done online, and in retrospect, there’s no way we could have afforded to do it if it hadn’t been, because it would have meant bringing people from all over the world to one place. We had people from different geographical places, it was ethnically and gender diverse and it was also legally diverse. We had humanitarian lawyers, criminal lawyers, environment lawyers and climate lawyers, and after six months they emerged with a genuine consensus.

“The definition we ended up with is less than a page long, it’s really concise with the core of the definition being one sentence, because it was designed to be submitted for the Rome Statute as an international crime. So ‘For the purposes of this statute, ecocide means unlawful or wanton acts committed with knowledge that there’s a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.’ It is a straightforward definition that’s strongly based on prior legal texts, so it has precedent, which is important for it to be taken seriously by both lawyers and politicians. It is also able to be understood by you or me and by pretty much anybody, and it has had an amazing reception in the media, it has had an amazing reception in politics, it has really catalysed governmental and parliamentary level discussions around the world, and it has been absolutely key in moving this forward.”

So what makes this definition of ecocide so important? 

“There are two thresholds in the definition: there’s how severe the harm is and that it must be unlawful or wanton. This identification of ecocide as the most severe and either widespread or long-term harms is really important because it focuses on consequences. There’s a huge body of environmental law around the world, and it’s often in the form of regulation or administrative law, and it can be pages and pages of very specific dos and don’ts, lists of what needs to be avoided and what a particular threshold is for a certain toxin in a particular context. What ecocide does, in contrast, is it says whatever you do, in whatever arena, it should not create a certain level of harm. 

“So it avoids a lot of what happens at the moment, which is that a big polluting company will employ risk managers and legal counsels to effectively make sure they are not caught by a particular regulation, or that the compensation or penalty they may have to pay is balanced by the profit they are able to make. Whereas if you bring something into the criminal law sphere that says you can’t create this level of harm, the focus has to move, the focus has to become what do we actually need to do to avoid doing this, otherwise our bosses are going to end up in jail, and that prompts a completely different approach to due diligence. It also future-proofs the definition, so if in two years some horrific new practice is conceived of that could be ecocidal that isn’t mentioned in a list of acts, having it based on consequences covers whatever might turn up in the future, it keeps it dynamic.

“Another threshold is unlawful or wanton. The unlawful acknowledges that a lot of the worst environmental harms are already in breach of a regulatory or rights frameworks, and currently they’re simply being ignored or companies have decided it’s worth the risk. So ecocide being unlawful enhances existing laws by saying if you’re doing this bad thing or you’re not meeting these regulatory obligations, suddenly you’re in criminal law territory and that’s very powerful, it strengthens existing laws rather than cutting across them, and that’s both practically and politically important. 

“Environmental law does not usually contain strict prohibitions, and criminal law has particular prohibitions, so an act being wanton is about these two things meeting, it is a balancing act that says if what you’re doing creates a disproportionate level of harm — compared to the potential social and economic benefits of your project — and it’s reckless, then effectively that is wanton. So it has a kind of tempering effect, because there will be cases like in developing countries that don’t have the necessary regulation that some of the developed countries have, or they have really genuine pressing social needs that have to be balanced out against the environmental damage, and it creates a necessary level of flexibility. 

“I think we have to realise there are no black and white terms for environmental harm. When we build a house, I mean on a small scale we are damaging a proportion of an ecosystem, because we cannot exist as a civilisation without affecting the environment, but we have long forgotten to balance this destruction by respecting what the environment needs to mutually support our civilisation. That reciprocity again speaks to the Indigenous understanding of the natural laws of the world, and that reciprocity has been forgotten, and this is what the wanton aspect of the definition brings.”

Ecocide is a word that is becoming increasingly influential and important to the global movement for environmental protection and restoration. It supports frontline protectors, Indigenous communities and nation states to articulate the destruction being committed by industry against our natural world. Since the legal definition of ecocide was proclaimed in 2021, the movement has advanced rapidly.

“We’ve had incredible progress. We saw this in November in the European Union with the necessary political agreement to make changes to the EU Environmental Crimes Directive, which will include cases comparable to ecocide. While they have not gone quite as far as we might like, they’ve acknowledged environmental harms need to be treated with more severity and that member states need to give them higher penalties. What they’ve given is quite a broad list of contexts in which this should happen, which isn’t comprehensive, but it is a massive step in the right direction.

“Ecocide law will protect life, it says ‘no you can’t destroy this, because if you do there are consequences’. And once again that speaks to the Indigenous understanding, when you damage Mother Earth there are consequences, it is that simple, it’s a fact. And for those cultures, it’s a fact on so many levels, it’s a spiritual fact as well as a physical fact, and it’s a fact that the whole of the world is starting to wake up to. And it’s that reality that you can’t get around. Nature is not an infinite bank of resources, we live on a planet that is a planet, it’s complete, it’s a whole, it’s not an infinite thing. And that is something that the corporate and political world are now really banging up against, they haven’t really had to before, or they haven’t felt like they had to, but that’s what’s now happening.”

Let’s trust it continues. Support Stop Ecocide to support this shift.

Anton Rivette is a writer and photographer. He leads storytelling at eco-nnect.

The post How to Stop Ecocide appeared first on eco-nnect.