Most now accept that the Earth is fragile, but can the legal system help to secure its future?
Among the ideas currently gaining currency is adding a crime of ecocide to the jurisdiction of the International Criminal Court (ICC). If this idea is accepted, ecocide would join war crimes, aggression, crimes against humanity and genocide as a fifth crime against peace.
The rationale behind the campaign for a crime of ecocide is similar to that of other ecological legal initiatives; namely, that addressing environmental imperatives requires a seismic shift in attitudes, practices and culture, in both the corporate and political spheres. Catastrophes such as Deepwater Horizon highlight the failure of existing mechanisms to ensure that the commercial world’s financial and economic prowess is matched by a duty of care for the planet on which it operates, and the rights of both its current inhabitants and those yet to come.
It reflects a redefinition of the ‘rights’ debate away towards the idea that ‘planetary rights’ merit as much protection as their human counterparts. The aim is for the law to treat the earth not as an inert commodity, but as a living being with intrinsic value.
It was in this context that a public debate recently took place at University College London between ecocide’s leading proponent, the campaigning barrister Polly Higgins, and leading environmental lawyer David Hart QC. The merits of a crime of ecocide not at stake, the debate focused on whether ecocide should be a crime of strict liability, or whether knowledge should be required.
The argument in favour of strict liability centres primarily on the gravity of the ecological predicament. So acute is the environmental malaise that current practices of fossil fuel extraction and heavy, polluting industries must be put to an end, Higgins contends. Data from the TEEB (The Economics of Ecosystems and Biodiversity) report assesses the cost of corporate environmental damage in 2008 at $2.2 trillion, at double this in 2009 and with an anticipated further doubling to nearly $9 trillion in 2010. Government acts and omissions add an additional tier of impacts, bringing into prospect what Sir David King has termed a century of ‘resource wars’ if current patterns of environmental degradation are not arrested.
Current environmental law regimes such as the UNFCCC can be compared to treating a sick child according to Higgins. Instead of no longer feeding the child that which is making it sick, the dominant approach is simply to reduce the amount that is fed. In her analysis, this would mean the child dies.
Similarly, by seeking to reduce the greenhouse gas emissions that are causing climate change we are failing to arrest the potential destruction of the planet. Requiring “knowledge” risks the avoidance of culpability as chief executives sought to deny any inkling of an impeding environmental disaster. Strict liability would establish an unequivocal prohibition of serious environmental harm, the magnitude of the offence evidenced in the absence of mens rea, or ‘mental element’, as, for example, in the offence of causing death by careless driving.
A crime of ecocide is needed not simply to punish wrongdoers. Equally, if not more, important is that it serves as a deterrent, engendering a change of mindset and corporate attitude that revolutionises ‘business as usual’ scenarios. Without a strict liability requirement, proceedings would be unduly lengthy, complex and far less certain of success. A knowledge requirement is, she argues, ‘the ultimate ‘get out of jail’ card. The deterrent effect would, at least in part, be incapacitated.
Given that companies currently only have a legal duty to maximise shareholder profits, nothing short of a sharp regulatory stick will create the change required. That stick would be the prospect of a criminal prosecution for a crime of ecocide under the ICC. Ms Higgins’ approach, however, envisages the prospect of prosecution as an equally effective weapon as the legal sanction itself. She proposes that, once ecocide was on the statute of the Court, there would be an amnesty – a period of several years in which the corporate world would be enabled to revolutionise their economic practices and embrace a new culture of ecological trusteeship, making them part of the solution and not just a cause of the problem. The large-scale flow of financial resources into innovative green technologies would be facilitated to further the revolution. Should companies fail to respond positively in this way, however, punitive legal proceedings would be forthcoming.
The counter-argument put by David Hart QC centred on pragmatism over principle. The importance of ecocide to the effectiveness of environmental protection means the overriding priority is to get it into the Rome statute governing the ICC. This will only happen with widespread political support, support far more likely to be offered if there is a knowledge requirement to reduce governments’ fear of a corporate backlash. Further, as a crime under the jurisdiction of the ICC, it would need to deal strictly with the most serious of crimes – crimes not only of abhorrent environmental outcomes, but of appalling environmental conduct. Only a requirement for knowledge would provide this and prevent the Court from being overwhelmed with cases.
Establishing ecocide as a strict liability offence would also distinguish it from the existing crimes under the auspices of the ICC, all of which require the ‘mental element’ to be proven. Indeed, this forms part of the Rome Statute underpinning the ICC in Article 30. Identifying why ecocide should have a different requirement to genocide would almost certainly pose a challenge.
Both arguments have merit, but both neglect a critical point – given the various initiatives, voluntary and mandatory, that have sought to inspire a revolution in corporate and government environmental practice, can a crime of ecocide have a realistic prospect of achieving what over thirty years of endeavours have so far failed to?
The problem is that as urgent as ecological salvation is, recent history suggests it is destined to occur incrementally and, perhaps, frustratingly slowly. To suggest that the inadequacy of financial flows into green technologies is attributable to the absence of a crime of ecocide to motivate such a switch is to oversimplify a complex problem.
Similarly, to imagine a world without any heavy industry or greenhouse gas emissions is simply beyond the imagination of even the most fervent environmental advocates. And the effect of an amnesty from prosecution of a court whose capacity is limited to four cases concurrently is likely to be limited.
None of this, however, is a reason not to support the campaign for a crime of ecocide, but rather to do so as part of a package of measures – legal, political, technological and economic – to effect the lasting environmental change and intergenerational equity. An amendment to the Companies Act 2006 to require corporations to uphold a duty of care for the environment in the pursuit of profit maximisation could, for example, be a complementary legal component of such a package.
Frances Aldson has a Master’s degree in environmental law from SOAS, University of London and is currently studying for the Bar on a Queen Mother scholarship from Middle Temple.
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