Polly Higgins says a feasible amendment to international law could catapult global society into a sustainable future
Frustrated by a lack of progress at international climate change negotiations, lawyer Polly Higgins realised that a fundamental shift was needed in how we tackle the environmental crisis. And she realised it needs to happen quick.
Her solution is a new international law, which if implemented, would make damage and destruction of the environment a crime against peace. She’s calling it the crime of ecocide.
“This is a real game changer,” says Polly, “it will shift the rules in a way that we can barely begin to imagine.”
The new law would result in government policy ushering companies causing large-scale habitat destruction, biodiversity loss, soil depletion, deforestation and the disruption of natural cycles, towards a new green economy.
The most notable impact would be upon the energy sector, says Polly. “It would close the door to us continuing with fossil fuels, which we have to do in order to open a door towards renewable technologies.”
But aren’t there already laws in place protecting the environment? “They are focussed only on risk evaluation,” explains Polly. “If you get caught out then you just pay your fines. With this law in place, the investment community would look to consequence and wouldn’t insure and invest in something that would give rise to ecocide, as it would be a crime.”
Ironically, Polly admits, it’s laws that have created the problem by giving corporations the legal status of a fictional person.
“If you’re caught doing a runner from a cab, you can be imprisoned for up to two years,” she says, illustrating this. “And yet these corporations are ‘doing runners’ every single day from the environment and nobody’s doing anything about it because a corporation is a fictional person.”
However, international law recognises large-scale crimes committed by real persons, which is where, as a crime against peace, ecocide would come into the picture.
“Genocide does not attach itself to a fictional person,” explains Polly. “CEOs were put into prison after world war two, it wasn’t just generals, it was also those who were profiteering out of genocide. This is about closing the door to profit arising out of destruction of the planet and imposing a legal duty of care on those who have superior responsibility – that’s CEOs, directors, heads of states, heads of banks, those who are in the seat of control.”
In this way, the ecocide campaign is attempting to create an avenue for ethics and morality to override short-term economic agendas. With ecocide as a crime under international law, it would also have a trickle down effect at a national and regional level, affecting things like council town planning for example, where sustainable developments would be favoured.
“Viewing the Earth as a commodity, to be bought, sold, used and abused, has arisen out of the law of ownership, of property,” says Polly, who wants to see a move towards trusteeship law, to encourage guardianship and stewardship of the Earth.
“If you view the Earth as a living being, you recognise its intrinsic value and you take individual and collective responsibility. Trusteeship comes with a kick though, because when you impose that responsibility as a legal duty of care it attaches itself to real people.”
Law can be an enormous lever for shifting consciousness
With CEOs potentially facing jail time for environmental destruction caused by their companies, the ecocide law would be a powerful disincentive. It is designed to prevent harm rather than appoint blame, says Polly, who believes it would, in fact, alter humanity’s whole attitude towards the Earth.
“Law can be an enormous lever for shifting consciousness,” she says, pointing to the abolition of slavery as an example. “Literally overnight, slavery went from being completely acceptable to being utterly unacceptable. So what happens with legislation is that everybody follows it – you realign people’s value system.”
In September 2011, a mock trial took place at the Supreme Court in London, to test the law’s viability. With genuine lawyers, a judge and expert witnesses, the trial’s impartial public jury found CEOs of a fictitious tar sands energy company (played by actors) guilty of ecocide. The event was streamed live to thousands of viewers on the Sky News website.
For the trial, Polly wrote The Ecocide Act as an example of national law that would be put in place. “That trial was so useful because it allowed us to see one or two gaps and that if we tweaked and amended things we’d have something watertight that all countries can use,” says Polly, revealing that she is lining up legislation ready for the moment in time when it could be implemented rapidly.
Bolivia, which has now joined Ecuador in giving legal rights to the Earth, is currently pushing for a declaration of planetary rights to be ratified at the UN. “There is a growing momentum. But to give that declaration the criminal sanctions, the enforcement, it needs the crime of ecocide,” explains Polly, suggesting that ‘transition-enabling acts’ will also be necessary to help communities and nations adapt to a sustainable future.
The Rio+20 Earth summit in June 2012 offers an important opportunity for the campaign. To make ecocide a crime against peace, there would need to be an amendment to the Rome Statute, the treaty under which the International Criminal Court can prosecute.
“All it needs is 86 people [a majority] agreeing to that,” Polly points out. “It just so happens that they’re heads of state. They’re all going to be there for the Earth summit. Theoretically, there’s nothing to stop governments making legislation there and then.”
The sense of urgency that Polly feels is clear: “It’s the most important time in the whole of civilisation and we have this opportunity to change things.” She adds however, that for governments to act, people need to adopt the language of ecocide.
“Environmental activists are being convicted of breaches against peace, which is ironic when the greater crime against peace, ecocide, is happening. The problem is that they haven’t managed to give it a name yet.
“This is about pestering governments, putting them on the spot. Millions of people everyday are fighting against ecocides, whether it’s mining, the Alberta tar sands or deforestation of the Amazon. It’s about all of them calling governments to account and saying ‘it has to stop, we the people say it’s a crime and we want it legally recognised as a crime.’ It’s one law, one Earth, one crime and its name is ecocide. Name it. The time is now.”
The extensive destruction, damage to or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished.
As proposed by Polly Higgins to the UN Law Commission