Ecocide law: the missing climate solution?

By Jojo Mehta, Co-Founder & Executive Director, Stop Ecocide International (www.stopecocide.earth)

Members of the Scottish Parliament were recently briefed on a legal concept that is rapidly gaining traction on the international stage: an international crime of ‘ecocide’.

It is widely recognised that humanity stands at a crossroads. As underlined in the IPCC’s Sixth Assessment Report (August 2021), the scientific evidence points to the conclusion that the emission of greenhouse gases and the destruction of ecosystems at current rates will have catastrophic consequences for our common environment.

Our briefing of MSPs, one of many political briefings we’ve been requested to provide lately, asserted that international law may have a seminal role to play in transforming our relationship with the natural world, shifting that relationship from one of harm to one of harmony. This is because, despite significant progress, existing laws and treaties are proving inadequate to supply the strong guardrail needed to prevent the root causes of the global climate and ecological crisis.

What is required is nothing short of a new taboo. We all know one cannot request a licence to kill people in pursuit of a new infrastructure project. Indeed, it wouldn’t even cross our minds to do so. But we don’t yet recoil in the same way from destruction of ecosystems, and it is becoming ever more apparent that we must. We believe an international crime of ecocide has the potential to begin to create this much-needed shift in perspective.

History and recent progress

The word ecocide was coined in 1970 to describe the damage caused by defoliant Agent Orange in Vietnam, and in 1972, at the UN Conference on the Human Environment, Swedish Prime Minister Olof Palme evoked the idea of ecocide as an international crime. The idea was then taken forward by others, including Richard Falk (1973) and Benjamin Whitaker (1985); there have also been more recent efforts, notably from Scottish barrister the late Polly Higgins (1968-2019) whose legacy is being expanded upon by a growing collaborative movement. Our work sits at the heart of this expanding global network.

Ecocide campaigner Polly Higgins, with RSGS Shackleton Medal that she received in September 2018.

In November 2019 Pope Francis, addressing the International Association of Penal Law, suggested that ecocide should be considered a fifth category of crimes against peace, and in December 2019 climate-vulnerable island states Vanuatu and the Maldives officially called on member states of the International Criminal Court (ICC) to consider amending the Rome Statute to include ecocide alongside the four existing international crimes.

Since that time, a further 14 member states of the ICC have a record of discussion of this crime either at parliamentary or government level: Bangladesh, Brazil, Belgium, Canada, Chile, Finland, France, Luxembourg, Mexico the Netherlands, Portugal, Spain, Sweden, and the UK. The EU Parliament has voted in support of ecocide crime in the contexts of foreign affairs, legal affairs and biodiversity strategy, and support was virtually unanimous at the Inter-Parliamentary Union. Closer to home, a motion put forward by Monica Lennon MSP in support of the recently launched legal definition of the crime has gained broad cross-party support in Scotland.

Legal definition of ecocide

Momentum around this new crime has gathered significantly since consensus was reached on the core text of a definition of ecocide as an international crime by an Independent Expert Panel for the Legal Definition of Ecocide. This panel, comprising 12 lawyers from around the world, with a balance of backgrounds, and expertise in criminal, environmental, humanitarian and climate law, was convened by the Stop Ecocide Foundation and co-chaired by British/French barrister Professor Philippe Sands QC and Senegalese jurist Dior Fall Sow. The group was assisted by outside experts and a public consultation that brought together hundreds of ideas from legal, economic, political, youth, faith and indigenous perspectives from around the globe. The definition, launched in June 2021, is clear and concise:

“ecocide” means 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 being caused by those acts.

This definition is already being considered by a number of governments and it strikes a balance between protection from the most egregious harms and acceptability to governments with varying national legal provision in place.

Political opportunity

COP26 presents Scotland, and more broadly the UK, with a requirement for global leadership on the climate and ecological crisis; support for an international crime of ecocide is an opportunity to show this strongly. Amending the Rome Statute will take some time (an estimated four to five years) and requires broad global support from 80+ states. It does not therefore constitute an immediate political and economic risk, but nonetheless strongly encourages the necessary transition policies and compliance pathways towards sustainable and genuinely eco-effective practices.

Ethical and practical obligation

The UK is the seat of the industrial revolution, and is also at the origin of the present global legal system which focuses heavily on private ownership; both have brought prosperity to many but also, as we are at last acknowledging, relentless destruction to our planetary home (‘ecocide’ means, etymologically, ‘killing one’s home’). With a centuries-established history of innovation and pioneership, it would be both just and fitting for Scotland and the UK to lead the world in respect of this new international law to protect ecosystems and future generations of all species, helping in this way to engineer a new and desperately needed global ecological responsibility.

We simply cannot allow ecocide to continue with impunity. Certain moments in history demand not only practical but also deeply moral leadership. This is such a moment, and support for an international crime of ecocide offers both.

FURTHER READING

Intergovernmental Panel on Climate Change (August 2021) Sixth Assessment Report (www.ipcc.ch/assessment-report/ar6)