Ecocide

Ecocide is the extensive damage to, destruction of or loss of ecosystem(s) of a given territory, whether by human agency or by other, to such an extent that peaceful enjoyment by the inhabitants of that territory has been or will be severely diminished.

Anthropogenic ecocide

The term ecocide is more recently used to refer to the destructive impact of humanity on its own natural environment. As a group of complex organisms we are committing ecocide through unsustainable exploitation of the planet's resources. The geological era we are living in, known as the anthropocene, is so named because the activities of the human species are influencing the Earth's natural state in a way never seen before. The most notable example is that of the atmosphere which is being transformed through the emission of gases from fossil fuel use : carbon dioxide, methane, chlorofluorocarbons etc. The population explosion of the last century in conjunction with economic models built on growth are fuelling this misuse, a form of global ecocide. The ecocide we are witnessing is a symptom of the disregard and reward for accounting for the damage being caused. U.S. environmental theorist and activist Patrick Hossay argues that the human species is committing ecocide, via industrial civilization's effects on the global environment. Much of the modern environmental movement stems from this belief as a precept.

Ecocide as an International Crime

In 2010 it was proposed that the Rome Statute be amended to include the international crime of Ecocide. The proposal was submitted to the United Nations International Law Commission who are ‘mandated to promote the progressive development of international law and its codification’. The purpose of the submission was to create the offence of ecocide as the 5th international Crime Against Peace and put in place an international criminal law at the very top level on a par with other Crimes Against the Peace.

History

The 2010 Submission was not the first time that attempts had been made to make Ecocide an International Crime Against the Peace. The concept of creating an international crime of Ecocide as the extensive damage, destruction to and loss of ecosystems has a history dating back to the 1970s.

1970s onwards:There was growing support from government, the United Nations and communities to include Ecocide as the fifth International crime to stand alongside the crime of Genocide by amending the Rome Statute.

1970

The word was recorded at the Conference on War and National Responsibility in Washington 1970, where Arthur Galston proposed a new international agreement to ban ecocide. Galston was a US biologist who identified the defoliant effects of a chemical later developed into Agent Orange. Subsequently a bioethicist, he was the first in 1970 to name massive damage and destruction of ecosystems as an ecocide.

In an obiter dictum in the 1970 Barcelona Traction case judgment, the International Court of Justice identified a category of international obligations called ‘erga omnes’, namely obligations owed by states to the international community as a whole, intended to protect and promote the basic values and common interests of all.

1972

In 1972 at the United Nations Stockholm Conference on the Human Environment which adopted the Stockholm Declaration, Olof Palme the Prime Minister of Sweden, in his opening speech spoke explicitly of the Vietnam war as an ecocide and it was discussed in the unofficial events running parallel to the official UN Stockholm Conference on Human Environment. Others, including Indira Gandhi from India and Tang Ke, the leader of the Chinese delegation, also denounced the war in human and environmental terms. They too called for ecocide to be an international crime. A Working Group on Crimes Against the Environment was formed at the conference, and a draft Ecocide Convention was submitted into the United Nations in 1973.

Dai Dong, a branch of the International Fellowship of Reconciliation sponsored a Convention on Ecocidal War which took place in Stockholm, Sweden. The Convention brought together many people including experts Richard A. Falk, expert on the international law of war crimes and Robert Jay Lifton, a psychohistorian. The Convention called for a United Nations Convention on Ecocidal Warfare, which would amongst other matters seek to define and condemn ecocide as an international crime of war. Richard A. Falk drafted an Ecocide Convention in 1973, explicitly stating at the outset to recognise “that man has consciously and unconsciously inflicted irreparable damage to the environment in times of war and peace”.

Westing's view was that that the element of intent did not always apply. “Intent may not only be impossible to establish without admission but, I believe, it is essentially irrelevant.”

1978

Draft Code of Crimes Against the Peace and Security of Mankind discussions commence. At the same time, State responsibility and international crimes are discussed and drafted.

The ILC 1978 Yearbook's 'Draft articles on State Responsibility and International Crime' included: “an international crime (which) may result, inter alia, from: (d) a serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment, such as those prohibiting massive pollution of the atmosphere or of the seas.” Supporters who spoke out in favour of a crime of ecocide included Romania and the Holy See, Austria, Poland, Rwanda, Congo and Oman

1985

Ecocide as a crime continued to be addressed. The Whitaker Report, commissioned by the Sub-Commission on the Promotion and Protection of Human Rights on the question of the prevention and punishment of the crime of genocide was prepared by then Special Rapporteur, Benjamin Whitaker. The report contained a passage that “some members of the Sub-Commission have, however, proposed that the definition of genocide should be broadened to include cultural genocide or "ethnocide", and also "ecocide": adverse alterations, often irreparable, to the environment - for example through nuclear explosions, chemical weapons, serious pollution and acid rain, or destruction of the rain forest - which threaten the existence of entire populations, whether deliberately or with criminal negligence.”

1987

Discussion of international crimes continued in the International Law Commission, where it was proposed that “the list of international crimes include "ecocide", as a reflection of the need to safeguard and preserve the environment, as well as the first use of nuclear weapons, colonialism, apartheid, economic aggression and mercenarism".

1991

The ILC 'Draft Code of Crimes Against the Peace and Security of Mankind' of 1991 contained 12 crimes. One of those was 'wilful damage to the environment (Article 26)'.

1993

As of 29 March 1993, the Secretary-General had received 23 replies from Member States and one reply from a non-member State. They were: Australia, Austria, Belarus, Belgium, Brazil, Bulgaria, Costa Rica, Ecuador, Greece, Netherlands, the Nordic countries (Denmark, Finland, Iceland, Norway, Sweden), Paraguay, Poland, Senegal, Sudan, Turkey, UK, USA, Uruguay and Switzerland. Many objections were raised, for summarised commentary see the 1993 ILC Yearbook. Only three countries, the Netherlands, the United Kingdom and the United States of America, opposed the inclusion of an environmental crime. The issue of adding a high test of intent (‘wilful’) was of concern: Austria commented: “Since perpetrators of this crime are usually acting out of a profit motive, intent should not be a condition for liability to punishment.” Belgium and Uruguay also took the position that no element of intent was necessary for the crime of severe damage to the environment (Article 26).

1995

The International Law Commission reduced the 12 crimes to 6. The draft code discussions moved to the Sixth Committee of the General Assembly (see: 12th - 25th and 44th meetings reports). At the GA Sixth Committee’s 12th Meeting held on 12 October 1995: “the Special Rapporteur on the topic had presented his thirteenth report recommending that only 6 of the 12 crimes identified in first reading for inclusion in the Code should be retained, namely… wilful and severe damage to the environment (article 26).” Records show concerns were raised, and reasons for retaining it included the fact that environmental harm is a state responsibility.

By the General Assembly Sixth Committee’s 16th meeting held on 17 October 1995, ‘wilful and severe damage to the environment’ was removed. Various countries including Chile did not agree.

1996

Meanwhile in the ILC, ‘wilful and severe damage to the environment’ (Article 26) had been tasked to a working-group: “The Commission further decided that consultations would continue as regards [Article 26] …the Commission decided … to establish a working group that would meet … to examine the possibility of covering in the draft Code the issue of wilful and severe damage to the environment.”

In the same year, Canadian/Australian lawyer Mark Gray published his 1988 proposal for an international crime of ecocide, based on established international environmental and human rights law. He argued that states, and arguably individuals and organisations, causing or permitting harm to the natural environment on a massive scale breach a duty of care owed to humanity in general. He proposed that such breaches, where deliberate, reckless or negligent, be identified as ecocide where they entail serious, and extensive or lasting, ecological damage; international consequences; and waste.

19 countries spoke out in the Legal Committee in favour of retaining damage to the environment on the list of crimes covered in the draft Code. In the same session Mr. Lukashuk objected: “at the fiftieth session of the General Assembly, the majority of Member States had come out in favour of characterizing "ecocide" as a crime, and only three States, France, Brazil and the Czech Republic were against it.” On 5 July 1996, the final Draft Code of Crimes Against the Peace and Security of Mankind was adopted on second reading by the ILC and ‘wilful and severe damage to the environment’ had been removed, as was the section on State Responsibility.

A proposed definition

Ecocide is not currently an international crime, although it is a domestic crime in at least ten countries. Those countries follow closely the ILC Draft articles definition of "An individual who wilfully causes or orders the causing of widespread, long-term and severe damage to the natural environment shall, on conviction thereof, be sentenced [to...]." However, there is one international crime which criminalizes the widespread, long-term and severe damage to the non-human environment during war time if it is not covered by military necessity. Article 8(2)(b)(iv) of the Rome Statute prohibits:

"Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the non-human environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated. "

Existing domestic ecocide laws

Ten countries have codified ecocide as a crime during peacetime. Although there are Laws of Ecocide in place, the effectiveness of these laws depends on a number of factors including the enforcement of the law, an independent judiciary and respect for the rule of law. Many of the countries with national laws of ecocide in place are ranked very highly for corruption and low for respect for the rule of law by Transparency International.

Georgia 1999

Article 409. Ecocide: "Ecocide, i.e. contamination of atmosphere, land and water resources, mass destruction of flora and fauna or any other action that could have caused ecological disaster - shall be punishable by ..."

Republic of Armenia 2003

Article 394. Ecocide: "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 ..."

Ukraine 2001

Article 441. Ecocide: "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 ..."

Belarus 1999

Art 131. Ecocide: "Deliberate mass destruction of flora and fauna, or poisoning the air or water, or the commission of other intentional acts that could cause an ecological disaster (ecocide), - shall be punished by ..."

Kazakhstan 1997

Art 161. Ecocide: "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 capable of causation of an ecological catastrophe, - shall be punished by..."

Kyrgyzstan 1997

Art 374. Ecocide: "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 ..."

Republic of Moldova 2002

Art 136. Ecocide: "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 ..."

Russian Federation 1996

Art 358. Ecocide: "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 ..."

Tajikistan 1998

Art 400. Ecocide: "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 ..."

Uzbekistan 1994

Art 196. Pollution of Natural Environment: "Pollution or damage of land, water, or atmospheric air, resulted in mass disease incidence of people, death of animals, birds, or fish, or other grave consequences – shall be punished ..."

Vietnam 1990

Art 342 Crimes against mankind: "Those who, in peace time or war time, commit acts of ... as well as other acts of genocide or acts of ecocide or destroying the natural environment, shall be sentenced ..."

See also

• Ecophagy
• Ecotage
• Environmental disaster
• List of environmental issues
• Operation Ranch Hand
• Scorched earth
• WALL-E, ecocide in fiction
• War on Drugs

External links

• Official website of Polly Higgins International campaign
• Official website of the European citizens' initiative
• The story of stuff
• Polly Higgins on YouTube
• The Ecocide Research Aggregator
• EcocideUSA Twitter Feed

Further reading

• Franz, Broswimmer (2002). Ecocide: A Short History of Mass Extinction of Species. Pluto Press. ISBN 0-7453-1934-3. 

• Diamond, Jared (2005). Collapse: How Societies Choose to Fail or Succeed. England: Penguin Books. p. 575. ISBN 0-14-303655-6. 

• Cherson, Adam (2009). Ecocide: Humanity's Environmental Demons. Greencore Books. p. 135. ISBN 978-0-595-46318-3. 

• Higgins, Polly (2010). Eradicating Ecocide: Laws and Governance to Prevent the Destruction of our Planet. Shepheard-Walwyn. p. 202. ISBN 978-0-85683-275-8.