Genocide and Ecocide

Begonia Filgueira | 10 years ago

I greeted, with a sigh of relief, the news that the Serbian forces had found and arrested the former Bosnian Serb leader Ratko Mladic. I was not ecstatic, could not jump for joy, but felt a great sense of compassion for those families who suffered at Mladic’s hands, including a Bosnian Muslim friend who lost his youngest son  during one of the bombing raids. It was bad enough for the family to be in a concentration camp, but this little boy was only doing what little boys do, playing outside. What he did not know was that he would that day lose his life at the hands of one of Mladic’s bombs. Finally justice would be done as Mladic, who stands accused of the most heinous war crimes, would be brought before the International Criminal Court (ICC).

Mladic was indicted in 1995 by the ICC for genocide, crimes against humanity and war crimes. That is almost a full flush of war crimes and I could bet on the fact that Mladic’s indictment would have included a full suite of these crimes if crimes against aggression had existed as a crime in 1995, but it only came into being in 2010.

The acts of this man are so repulsive to all of us as a society, that it does not matter that the crimes committed by Mladic were committed within one jurisdiction, against a specific race, or even during war time. They are crimes against humanity, against peace and the human race. As citizens of the world and through our governments signing the Rome Convention, we claim the right to grant jurisdiction to the ICC to police these crimes.

Environmental crimes are condemned by society and have caused widespread destruction of ecosystems, wild life and the habitats which support these. They are capable of being characterised as an international environmental crime. Still, we do not have an International Environmental Court nor a peace time international environmental crime.

Polly Higgins is campaigning for a new crime to be added to the international statute books – the crime of ecocide. Do click on the word ecocide to be taken to Polly’s site. I can only surmise here what ecocide is, or what I interpret it to be.

Ecocide is a crime against peace. There are already four crimes against peace, genocide, crimes against humanity, war crimes and crimes against aggression.   Polly advocates that we add a fifth crime – ecocide – to protect not only human life but all life.  Ecocide is defined by Polly as causing extensive damage to ecosystems:

“ The widespread  long term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and overall community advantage anticipated”.

We do already have such a crime during war but not one caused during peace. The aim of this crime would be preventative and be directed to industry, particularly extractive industries. An example of ecocide is Athabasca Alaskan Tar sands. This BP project produces crude oil from the tar sands (a mixture of bitumen, water, sand and clay)  found beneath more than 54,000 square miles of prime forest in northern Alberta.

This resource combined generates up to four times more carbon dioxide, the main global warming gas, than conventional drilling. Further half of America’s migratory birds come to these Alberta sands to breed or nest or just stop over, with tens of thousands losing their lives due to oil exploration. Not to mention the water from rivers diverted for production, the plant life ripped away by lifting the soil to get to the bitumen sands, the dislocation of communities and disease.

Polly wants this crime to be one of strict liability – whether you had intention to cause this destruction, if it occurs and causation is proven you, director of the company in question, will be found guilty.   Polly is trying to use this crime as a tool to change society, to move away from industrial processes which cause untold harm to the planet to a greener world, where economic growth and wellbeing is compatible with survival of the planet.

The Wild Law UK Group organised a debate between Polly Higgins and David Hart QC on Ecocide at UCL Law School’s Moot court. As a UCL alumni it was very exciting being there again; I had not been in that court since my last moot! David agrees that there should be an ecocide crime, but where they differ is on the mens rea.

David argued that for all the other war crimes there has to be a measure of intent, strict liability will not do. For example for genocide one has to prove that “…the perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such”. How will society and governments accept a crime against nature that is easier to prove than crime against humanity? Even for murder one has to prove intent.

Polly retorted that it was a matter of principle, and she is right. The UK has a number of environmental crimes, take water pollution offences, which are crimes of strict liability. In order to ensure that corporations do not hide behind good lawyers, to create that societal change, Polly thinks we need strict liability.

However, it sits uncomfortably in my legal mind to add Ecocide to a list of war crimes and to make it a crime of strict liability where it is necessary to prove intent for all others. Yes we definitely need Ecocide but if it is to sit with the other crimes against peace than consistency is required. Polly, I am with you all the way, but perhaps what we need is a fresh international environmental criminal convention and an International Environment Court.

Something for Rio 2012?

About the author

Begonia Filgueira

Begonia is a specialist in Environmental Law, governance and negotiation. Her career now spans 20 years having started as an environmental lawyer in the City. She is a dually qualified UK Solicitor and Spanish Abogada who provides legal advice, trains professionals and carries out complex research in the areas of International and EU environmental law. She also advises on treaty negotiations and implementation of EU law. Begonia has advised UNEP, UNDP, the European Commission, DEFRA and DOENI. She also advises industry and NGOs on environmental policy and regulation. BREXIT negotiations is her current area of specialism.