There are currently calls for ecocide to become the fifth “crime against peace” alongside genocide, crimes against humanity, crimes of aggression and war crimes.
Ecocide is defined as “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”.

*By Jake Taylor, The Hague

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Amidst such calls, the United Nations is considering how a prosecution for ecocide would work. In a mock ecocide trial which took place last Friday at the United Kingdom Supreme Court, a mock chief executive was charged with a crime involving an oil spill in the Athabasca Tar Sands.

It was up to a mock jury made up of members of the public to determine whether ecocide should be applied to the charge against them. The case proceeded as if the crime of ecocide has already been adopted by the United Nations (as proposed by British environmental lawyer Polly Higgins in April last year, under which Heads of States and Directors of Corporations would be held personally responsible for extensive damage to ecosystems).

The mock trial, organised by the civil society organisation, the Hamilton Group, is part of a campaign to raise awareness of ecocide and to bring the issues to the forefront of discussion. At the mock trial, it took just 50 minutes for the jury to return with two unanimous guilty convictions of ecocide against the CEOs of the oil companies operating in the Athabasca Tar Sands.

Higgins argues that such a law would serve to halt the flow of destruction at source, creating a pre-emptive duty on corporate entities to prohibit the mass damage and destruction to ecosystems from the outset.

On a par with genocide
The idea being that, by making ecocide an international crime on par with genocide, it creates a powerful pre-emptive obligation and preventative measure that would render those in a superior position of authority responsible for the impact of their actions on the environment.

Furthermore, as Ms Higgins argues, the defunct UN Trusteeship Council could be restored to impose a legal duty of care on all Member states for those territories adversely affected by ecocide.

This does, however, raise certain legal issues. If ecocide were to become an international crime and were to be prosecuted by the International Criminal Court (as are the other four ‘crimes against peace’) this would necessitate an amendment of the ICC's Statute of Rome, which would need 86 nations to back it.

Furthermore, as a matter of procedural law, problems would arise proving causation between the acts of companies and environmental damage, which has doomed previous attempted prosecutions in the US for such ‘crimes’.

Superior responsibility
The issue being that genocide is a crime of intent whereas ecocide is not. Higgins, in an interview with The Guardian newspaper, counters this, arguing that an ecocide law would create a pre-emptive responsibility to prevent ecological damage, she explains, in the same way that "superior responsibility" or "strict liability" enables people to be prosecuted whether or not they intended to cause damage. This would arguably deter those in big businesses from committing ecocide in the first place.

The inclusion of ecocide as the fifth “crime against peace” also raises a moral issue: should the bosses of polluting companies and the leaders of environmentally unfriendly states join those responsible for mass murder in the dock?

That is for nations both individually and collectively to decide but, as the threat of climate change looms, we must surely, in some way, address mass deforestation, damaging mining practises and toxic waste pollution amongst other threats to our planet.

To echo the words of Jonathon Porritt, former Chair, Sustainable Development Commission, “once upon a time people did grievous harm to the environment without fully understanding the consequences of their actions."

That defence is no longer available, and that sure knowledge we now have entails equally sure moral obligations. In this context, the idea of establishing the crime of ecocide is both timely and compelling”.

*Jake Taylor is a regular contributor to the 9 Bedford Row international blog: http://www.9-bedford-row.co.uk/blog/internationalcrime/