Here you will find answers to the most frequently asked questions on Ecocide. To display the answers please click on the down arrow visible to the left of the question.
When can we speak of ecocide? How many felled trees? What quantity of polluted river water? Is the pollution of the ozone layer considered ecocide?
In existing law, each element contributing to life is more or less protected: air, soil, endangered species, flora and fauna; however, the legislation regards each element independently. With an ecocide law, it is no longer a matter of accounting for, using the previous example, how many trees have been felled in the Amazon rain forest, but rather of studying the consequences of this deforestation based on several criteria:
- Is the enjoyment of the peaceful life of its inhabitants, both human and non-human largely affected? – Crime of ecocide
- Have the rights to life of the non-human inhabitants been disregarded? – Crime against nature
- Have the rights to human life been disregarded? – Crime against humanity
- Have the culture and lifestyles linked to this environment been threatened? – Cultural ecocide (ethnocide)
- Has the life of future generations been affected? – Crime against future generations
- Is peace threatened by a degradation of living conditions? – Crime against peace
Under the proposed draft directive, a study must be carried out to assess the size, the duration and the impact of the damage, destruction or loss of an ecosystem. It is for the court to decide what the size, duration or impact of such a destruction is, in order to define it as an ecocide (Only one of the three conditions must be met).
In order to take this decision, the court can refer to an existing law, such as the United Nations Convention on the Prohibition military or any hostile use of environmental modification techniques (1977), which specifies the terms «widespread», «long-lasting» and «severe» as follows:
(A) Large scale: an area of several hundred square kilometres;
(B) Long-lasting: For a period of several months, or approximately a season;
(C) Severe: causing serious disturbance or significant damage to human life, natural or economic resources, or other aspects.
There is no definite list of ecocides. It may help to think about it in terms of the definition of GBH – grievous bodily harm. There’s not a long list saying that if someone punches you 4 times, that’s GBH, but 3 times, it’s not. It depends on the effects of the punch on the person. The same applies to ecocide: it depends on the damage done to that particular ecosystem and each case needs to be assessed individually.
What is the timeframe when the destructive activity has to have taken place in order to count as ecocide? Can years of polluting an ecosystem from different small sources also be considered as ecocide?
The time frame is determined by the prosecution – and this depends on how it is charged. It can run from when the event occurred to a set date (e. g. an oil spill over 6 months). If it’s a substantive offence (the actual offence), it runs from date before to date after. If it’s an incohate offence (e.. g a conspiracy date) it runs from a date before the agreement was formed to any date after the agreement was either reached or completed. It can run from date of which it came to attention (eg ecocide is reported – eg birds dead on toxic tailing pond) or run action from date from which created (eg date toxic tailing pond was built, rather than date birds landed on it and died).
Rather than list examples of what is and what would not be considered to be ecocide, the aim of establishing the law is to create a sea-change in decision-making in order to ensure that human activity does not create extensive damage and destruction to ecosystems. The idea is that going forward we create different systems in order to achieve our aims.
What is the difference between Polly Higgins’ Eradicating Ecocide campaign (Wish20) and the European Citizens’ Initiative “End Ecocide in Europe“?
Who is liable for Ecocide? Can ordinary people be accused of ecocide when buying products related to ecocide?
Consumers won’t be prosecuted for commiting ecocide. Actually, the aim of our proposal is create a situation where it will be easier for consumers to make environmentally friendly decisions, since production patterns themselves need to change.
Currently, existing directives recognise and apply the hierarchy of responsibility only to individuals whose intention of personal gain has been demonstrated, and not to government officials, public administrators or international organisations.
The ecocide directive recognises the responsibility of individuals based on the principle of superior responsability, whoever they are, even if the acts were committed without intent and thus removes impunity. Government leaders and CEOs may then be charged for ecocide.
It also recognises the responsibility of those who have acted as accomplices, facilitating or subsidising an ecocide by advising or subsidising hazardous activities. Financial institutions can thus be held accountable, as well as environmental consultancies.
The goal is to empower entrepreneurs, governments or bankers not to accept – regardless of the pressure from shareholders or lobbies – to invest in dangerous industrial activity. They will offer their skills and invest their funds in companies who respect the legal framework laid down by the Directive. This will accelerate the energy transition by offering it the means to succeed which is currently lacking.
Is investment included in Ecocide?
What’s the current status of Crimes Against the Environment? And how is the proposed Ecocide Directive different?
How is the Ecocide Directive different from the existing EU legislation (Environmental Liability Directive and Environmental Crime Directive)?
- The Ecocide Directive also applies to EU citizens and European enterprises operating outside the EU. Goods and services resulting from activities causing ecocide will be banned from import into EU territory. These measures will prevent a relocation of European companies seeking to circumvent the law.
- The Environmental Crimes Directive proposes only criminal penalties, while the Ecocide Directive allows warrants for arrest which can result in imprisonment.
- The Environmental Crimes Directive applies to air, soil, water, animals, plants, waste, dangerous substances, habitats within protected sites only, while the Ecocide Directive applies to whole ecosystems and their ability to function (exchange matter and energy).
- The Ecocide Directive provides for the establishment of a mechanism for restorative justice on which the court will be able to rely in order to evaluate and direct the redress and site restorations, commission independent impact assessment studies and decide to suspend current dangerous operations.
- The Ecocide Directive no longer considers the risk factor as the unit of measurement but the severity of the consequences. Thus the danger of a technology will not be measured in terms of the risk of resulting disasters (probability), but according to the extent of damage in the event of a disaster. The risk of a “Fukushima” is minimal; the consequences of the Fukushima disaster are immense. The Directive therefore asks the leaders to evaluate their different strategic choices and to assume, through their work, not their intentions, their responsibilities in these choices made on behalf of their company, their government or their financial institution.
The definition states that ecocide could also be naturally occurring, how is the directive addressing this issue?
What does non-human right to life mean? There is no such concept in existing EU legislation.
Can also people who were not aware of the ecocidal activity be prosecuted and face imprisonment?
Can an Ecocide law work?
- Yes – a mock trial held in the Supreme Court of the UK demonstrated that a law of Ecocide can work in practice. You can watch the full Mock Trial on youtube or get more info about the trial here: http://eradicatingecocide.com/overview/mock-trial/
- The Crime of Ecocide was going to be included as the fifth Crime Against Peace in the precursor to Rome Statute (which sets out the existing four Crimes Against Peace), in the draft document for 11 years before being withdrawn despite numerous countries supporting it. You can read more about the history of a law of Ecocide in the research paper „Ecocide is the Missing 5th Crime Against Peace“ undertaken by The University of London’s School of Advanced Study here: http://www.sas.ac.uk/node/1033
You can read about their Ecocide Project also here: http://www.sas.ac.uk/hrc/projects/ecocide-project.
- There is already an international crime against the environment during war time (see Article 8(2)(b) of the Rome Statute) – but in the final draft of the Rome Statute the name of Ecocide was removed and it was removed completely as a Peace Crime during peace time.
Are there examples of Ecocide law working?
Vietnam is probably the best example because it was introduced out of the devastating experience of the Vietnam war. Actually the Vietnam war was also one of the reasons why ecocide is today a crime in war time (Art 8.2. Rome Statute) and not in peace time.
What will the impact of the law of ecocide on business be?
Without a global legal framework that closes the door to dangerous industrial activity and opens the opportunity to widespread support, governments, investment and business cannot get out of the deadlock. Despite all the efforts of so many companies, almost all ecological limits are being pushed off the chart.
Currently there is no legislation in place to make it mandatory for business to be low carbon, resource efficient, socially and ecologically positive. What this means is that businesses that prioritise improved human and ecological well-being, while significantly reducing their environmental risks and ecological impact, is unsupported.
The Law of Ecocide is a law that will change the rules of the game. As set out in Polly Higgins, second book, Earth is our Business: changing the rules of the game, the number 1 rule that governs most business is to make profit without consequence. That law worked for a long time; now we have the knowledge that many business practices are causing mass damage and destruction. Often there is no intent; mostly the ecocide caused is secondary to the activity undertaken. To make a business case for a law of Ecocide, three things must happen: 1.create a level playing field for all; 2. give an appropriate transition period and 3. give the opportunity for industry to change on an international level.
A law of Ecocide will help business that has ambitious ecological targets. Business that has a bold sustainability vision stands to benefit greatly from a law of Ecocide by removing the current restrictions to green business at source. By creating a law that prohibits ecocide, business is given a new rule that supercedes existing law – law that has failed to prevent adverse consequences at the highest level. Ecocide law creates a pre-emptive ‘think before you act’ provision; it creates a legal requirement to put people and planet first. When that happens, businesses that have a strong sustainability agenda will be able to fulfill their purpose.
The draft directive includes a transition period, which is suggested to last 5 years. Global economies will be given the legislative framework to create resilience and stability as well as security of long-term investment streams. In addition, as new businesses are invested in and scale up, existing businesses will shift their primary occupation to come in line with pending new law. This will initiate a wave of innovation and investment across the world, developing market practices to solve environmental problems whilst enabling the flow of money into pioneering solutions that are scale-able. It will develop an entrepreneurial global society: social innovators will thrive as they tackle emerging and persistent problems; existing businesses will respond well to a law that opens the door to other markets and new opportunities. As a result, long-term investment streams from both private and public which have become widely available, redirect the flow of money into new business practices and old that are willing and able to innovate, mobilise fast and scale-up.
A global economy built on a law of Ecocide can be our future. A law of Ecocide has the potential to unlock the current crisis, put in place a very different road-map and build in a new vision. The impact of continuing business as usual on our economies, our security, our jobs and our futures is our business – the world is in our hands. What we decide to do next can be a powerful changemaker for all of our futures; all it needs is one law to trigger the transformation to a green economy. This is our legacy.
Any other questions?