The environment has been subjected to so much flagrant damage basically because there is no law against such acts. Ruinous exploitation of Nature for the extraction of capital has been permitted as a necessary, or good, evil. This state of affairs has allowed subsidiaries of transnational corporations to commit environmental atrocities in countries far off their home bases.
Extensive damage to the environment often amounts to literally killing the environment. Such harms impact the soil, the air and water of such the affected areas in more or less irreversible ways. A word that aptly describes crimes of this nature is ecocide.
The International Criminal Court (ICC), established to end impunity of the most serious crimes of concern to the international community is governed by legislations under the Rome Statute. The ICC has 123 member states and four crimes have been internationally recognised under the Rome Statute. These crimes are:
- War crimes,
- Crimes against humanity and
- Crime of aggression.
While war crimes include severe and long-lasting damage to the natural environment, there are currently no provisions for the protection of the environment from such harms during peacetime. We have heard of some military examining the specious idea of how they can wage war without harming the environment. War harms the environment and impacts can last far longer than the time of conflict. These include pollutions from military hardware and biological weapons and other chemicals used directly against the environment and peoples.
It is intriguing that widespread damage to the environment from mining, including oil and gas extraction, has so far been overlooked in international criminal law when such harms clearly offend the right to life of peoples.
Why Should Ecocide be a Crime?
Stop Ecocide defines ecocide succinctly as “mass damage and destruction of ecosystems – harm to nature which is widespread, severe or systematic.” This definition hits the roots of the problem. The problem is both widespread and systematic.
Examples of ecocide can be found in the massive excavations of the earth through mining in ways that do not allow for the erasure of the scars and do not permit adequate restoration due to the sheer extent of the damage. Others are the impacts of deep-sea mining, large oil spills and routine gas flares. The oil field communities of Nigeria and Ecuador, the tar sand mines of Canada, the coal mines of South Africa, the gold mines of Ghana, South Africa, etc., the industrial farms and polluting industries of the USA and Europe are clear examples of irreversible harm to Nature. Examples can be found all over the world.
We can also count deforestation that translates to huge habitat losses and drives species to extinction. Industrial fishing through deep sea bottom trawling, for example, is highly destructive. Industrial and colonial agricultural monocultures destroy complex ecosystems and create green deserts. Factories located on coastlines often use the ocean as waste dumps and simply pump their effluents directly out into the sea.
As earlier stated, due to the notion that these harmful activities are supposedly needed to ensure high living standards and inordinate consumption, they are taken as normal, as acceptable.
Stop Ecocide and supporters believe that the Rome Statue should be amended, and ecocide added as a crime alongside the crimes against humanity, war crimes and the others. One of the steps being taken is the commissioning of a panel of international criminal and environmental lawyers to draft a legal definition of ecocide. The panel is being co-chaired by Philippe Sands, a French/British lawyer and professor, and Dior Fall Sow a Senegalese jurist and legal scholar.
The notion of ecocide is not new. But it has only started to gain traction in recent years. It was on the table when the other international crimes were debated, but somehow fell between the cracks until Polly Higgins picked it up as a lifetime commitment and promoted it as the key means of halting large scale ecological crimes. Higgins believed that
“The rules of our world are laws, and they can be changed. Laws can restrict or they can enable. What matters is what they serve. Many of the laws in our world serve property – they are based on ownership. But imagine a law that has a higher moral authority… a law that puts people and planet first. Imagine a law that starts from first do no harm, that stops this dangerous game and takes us to a place of safety….” Together with Jojo Mehta, Higgins founded the Stop Ecocide Foundation, pursuing the Stop Ecocide campaign.
In 2010, Polly Higgins submitted this definition of ecocide to the United Nations Law Commission: “Ecocide is the extensive damage to, destruction of 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 or will be severely diminished.”
It is now 75 years since Crimes Against Humanity and Genocide were coined at Nuremberg. It is hoped that a legal definition of ecocide will pave the way for its being added as a fifth international crime against peace — not just as a crime against humans but also as a crime against Mother Earth or the natural world.
So far eight ICC member states, the Pope and the European Union, have openly expressed interest in the possibility of amending the Rome Statute. The eight countries are Vanuatu, Maldives, France, Belgium, Finland, Spain, Canada, and Luxembourg. Parliamentarians from a further 10 states Sweden, the Netherlands, Ireland, Germany, Portugal, the UK, Philippines, Australia, Cyprus and Brazil are interested to consider that definition.
Will Ecocide be Retroactive?
In conversations on this topic there have been issues raised about what threshold of destruction can be set before it can be said that a crime of ecocide has been committed. There is also the issue of the law not being retroactive. Going by standard law, a person is not charged with an offence committed at a time when there was no law against such an action. This must be a huge dampener for those who hope that once the crime of ecocide is adopted, they would simply file cases for obvious crimes committed before such adoption. The point is that we do not necessarily have to sue retroactively based on claims of what happened at the time the crime started to be committed. The fact is that these ecological crimes continue to grow, to expand, and starting at any point in time, there are sufficient grounds to hold ecological criminals accountable. Moreover, the law would create incentives for eco destroyers to check their reckless acts going forward, knowing that they would be held to account for such harms.
Recent court rulings in the home countries of transnational corporations over crimes committed by their subsidiaries in Zambia and Nigeria are pointers to things to come. They show that ecological crimes will no longer be easily hidden. On 10 April 2019, the Supreme Court in the United Kingdom ruled against Vedanta Resources PLC, insisting that Zambian victims of their polluting activities can sue the company in UK courts. The case was filed by almost 2,000 Zambian villagers against Konkola Copper Mines and its parent company Vedanta Resources PLC. The case was a long shot, a David versus Goliath match, considering that Konkola Copper Mines, the company that was polluting the water of the four farming communities with sulphuric acid and other toxic chemicals, is a subsidiary of the giant copper conglomerate, Vedanta Resources PLC. The Zambian plaintiffs can now seek redress in the UK courts and ensure that the polluter is held to account.
In February 2021, the same Supreme Court ruled in the same vein against Royal Dutch Shell in the case of Okpabi vs Shell. This ruling was a landmark victory for a group of about 50,000 victims of Shell’s polluting actions in Ogoniland, Nigeria. The court ruled that the UK Appeal Court was not right in holding that Shell could not be held accountable for offences committed by its Nigerian subsidiary, Shell Petroleum Development Company (SPDC). The plaintiffs from Ogale and Bille communities are demanding clean-up and compensation from Shell for years of harmful activities in their communities that has harmed them by, among other things, polluting their drinking water. They can now sue Shell in the UK.
The oil giant suffered the same fate in the cases brought against it in the court in The Netherlands by four farmers for pollutions in Oruma in Bayelsa State and Goi in Ogoni, Rivers State. The judges ruled that Shell would have to compensate the fishers and farmers for the harm inflicted on them by Shell’s oil spills. The judges declared that they needed more evidence before making a ruling on the case brought by the plaintiff from Ikot Ada Udo in Akwa Ibom State.
The judgements against Shell must be a strong signal to the other polluting fossil fuel companies that they cannot continue to get away with murder.
Carbon crimes may also be called climate crimes considering the catastrophic changes portended by the increased stock of greenhouse gases in the atmosphere. These are crimes at a planetary scale, beyond anything previously seen on planet Earth. Climate crimes are sharp examples of ecocide. In this sense we refer to the two ends of the fossil fuel pipelines – the demand and supply ends. We also bear in the mind the false solutions being proposed by corporations and politicians looking for ways to avoid or delay climate action as long as it gives them time for raking in profits. Some of these false solutions pertain to actions such as geoengineering that can only be taken on planetary scales and which would have massive intended and unintended consequences. The focus on carbon molecules without accounting for the ones in the ground also helps to obfuscate the searchlight on the way out of the climate mess.
The current stock of greenhouse gases in the atmosphere are already creating desperate problems for vulnerable communities, including Small Island States and increasingly threatened South Eastern seaboard of Africa that has suffered heavy battering by cyclones Idai (2019), Kenneth (2019) and Eloise (2021) in recent years. Cyclone Idai killed more than 1000 persons, affected 3 million others and caused about $2 billion worth of damage. Territories are already beginning to go under the sea. The crime is growing.
Some development projects are destructive to the environment and to communities in which they are sited. Projects in this category would include big dams, superhighways and coal fired plants. Big dams such as the INGA dams in the Democratic Republic of Congo pose serious threats to the Congo Basin. The dams are planned to be the biggest hydropower dam in the world is built as planned. Whereas 91% of the people in DRC do not have access to electricity, this dam is planned to provide electricity for extractive industries and for export.
International Rivers notes that “diverting the flow of the Congo river to create a reservoir would flood the Bundi Valley, affecting local agricultural lands and natural environments, and may cause huge methane emissions that would contribute to global warming. The effect of a reduced flow in the Congo River may cause loss of biodiversity and a shift in the dominant species. The flooded area may also create an environment that is conducive for the breeding of water-borne vectors such as the malanquin mosquito.”
A coal power plant that was proposed for Ghana was successfully fought off by environmentalists. The coal power plant proposed at Lamu, Kenya, is being resisted by the people who see the plant as a threat to their pristine environment, pollute the ocean, freshwater systems and hugely increase Kenya’s greenhouse gas emissions by 700 percent. The coal dust would also literally suffocate the lush mangroves in the area.
The case of a proposed superhighway that was to pass through the Cross River National Forest in Nigeria was a huge threat. The highway was conceived with 10 kilometres right of way on either side and would have swallowed up swathes of primary rain forests, destroying communities, farms, habitats and cultural heritage of the people. The highway was realigned away from the forest due to concerted grassroots resistance. The government lost interest in the project probably because the aim was to harvest the timber and devastate one of the last standing primary forests in the region.
Tearing the Corporate and Nationalist Veils
Corporate ecological crimes have been condoned because all companies have had to do is pay fines or find ways of prolonging cases until the plaintiffs die off. This impersonal relationship with individuals and communities in which corporations extract value for their boards and shareholders has permitted gross misbehaviours in ways that may not occur if the directors of the corporations and responsible public officers are held personally liable for ordering or condoning the crimes in the same way politicians or war lords are personally held to account for war crimes, genocide or crimes against humanity.
While we await the acceptance of Ecocide, the question remains as to whether the ICC can bite in a just manner. Some African countries have complained that the court operates as though it was set to watch over Africa while some countries simply ignore the court. The challenge is to ensure that powerful nations do not shield their citizens, corporations and corporate leaders from accountability for ecological crimes. This is not impossible to achieve as the global crises caused by reckless abuse of the environment and Nature generally is moving citizens to rebelling and demanding action in order to give humans and other species a breathing space, a space to recover from centuries of abuse.
Ecocide is a law whose time has come, even if almost late. It will be a key tool for fighting for environmental justice. It will be a tool for ensuring that humans understand the duty of stewardship over Natures gifts that we merely borrow from our grandchildren. Ecocide will tear the corporate veil and should eliminate nationalist shields.
We demand that nations make the crime of ecocide a part of national laws now! There is no time to waste. The era of merely treating the environment as a passing concern in our statute books must end.
To destroy the Earth is simply idiotic. “There is no beauty in mass damage and destruction. A beauty born of deep care, however, is a beauty that comes from the heart — not simply an adjunct, added on as a veneer.” We cannot escape the fact that ecocide is a crime both morally and ethically.