Jonny Rogers explores how the legal system might be changed to hold people accountable for perpetuating climate change and ecological damage.
Photo by Annie Spratt
The International Criminal Court (ICC) currently wields the power to prosecute four crimes: genocide, crimes against humanity, war crimes and crimes of aggression. However, some politicians, activists and world leaders – including Greta Thunberg and the Pope – are calling for the recognition of ‘ecocide’ as a crime worthy of comparable prosecution.
Although recent years have seen increasing public pressure for governments around the world to prioritise ecological issues, this often manifests in what Sophie Yeo has described as “fluffy and arguably toothless rulemaking”. The Paris Agreement, for example, which aims to limit the global temperature rise over the next few decades, depends on nations setting their own emission reduction targets, with little legal consequence to their failure.
However, by adding ecocide to the Rome Statute of the ICC, the perpetrators of serious environmental destruction could face arrest, prosecution and imprisonment – but will this deterrent change the discourse on the ecological crisis?
The Ecocide Movement
As it currently stands, the ICC can only prosecute environmental destruction so far, as it is associated with existing international crimes occurring during times of conflict. However, given that wildfires and rising oceans are harming and displacing millions of people, as well as causing thousands of species to go extinct, supporters of the criminalisation of ecocide argue that the current law does not go far enough in responding to the moral severity of climate change.
Polly Higgins, a Scottish barrister, was an important figure in igniting the ecocide movement until her tragic death in 2019. In 2010, she defined ecocide as:
“Extensive loss, damage or destruction of ecosystems of a given territory [...] such that the peaceful enjoyment of the inhabitants has been or will be severely diminished.”
Following Higgins, a growing legacy of campaigners have argued for the legal prosecution of those responsible for oil spills, deep-sea mining, industrial livestock farming and tar sand extraction, as certain industries and nations are disproportionately responsible for ecological destruction. While the ecocide movement has recently received support from European governments, smaller nations like Vanuatu – which has been severely impacted by rising sea levels – have challenged the ICC for failing to hold more powerful nations responsible.
According to the Climate Accountability Institute, over a third of all fossil fuel and cement emissions since 1965 have come from the twenty largest oil, natural gas, and coal companies; furthermore, a recent report from Chatham House concluded that at least a quarter of greenhouse gas emissions come from the global food system.
For ecocide to be recognised as an international crime, it would first take years to plan and process the proposal, which would need to be accepted by at least two-thirds of the ICC’s 123 member nations. Even then, the United States and China (the world’s largest polluters) are not signatories to the treaty that established the court, and therefore have no obligation to recognise its jurisdiction or authority.
Nevertheless, supporters of the criminalisation of ecocide believe that their challenge to international law extends beyond legality. As Jojo Mehta, the co-founder of the Stop Ecocide campaign, has argued the criminalisation of ecocide will also provoke a shift in how people think about environmental destruction:
“At the moment, you can still go into the environment and get a permit to frack or mine or drill for oil, whereas you can’t just get a permit to kill people, because it’s criminal [...] Once you set that parameter in place, you shift the cultural mindset as well as the legal reality.”
What the Law Cannot Change
Even if the formalisation of legal prosecution for ecocide might be effective in reducing certain actions, it is important to recognise its limitations: namely, even the strongest legal system depends on traceability, while the causes of many ecological issues remain more-or-less invisible.
In 2017, the uninhabited Henderson Island was found to be the most polluted territory in the world. Investigators estimated that more than 17 tonnes (or 37.7 million pieces) of plastic debris were present on its beaches, despite the island being situated 5000km away from the nearest major population centre – but who is responsible for this travesty?
No single person decided to outsource a nation or company’s waste to the South Pacific, yet neither did anyone successfully prevent it from occurring. If 38 million unique companies were each responsible for producing a single piece of waste, the accumulation of many apparently negligible actions can still produce an undesirable outcome. On the other hand, even if this accumulation of plastic did come from a single corporation or industry, it would be almost impossible to identify; from a study of 55,000 pieces of waste collected from the Henderson Island, only 100 could be traced back to its country of origin.
As such, one of the biggest difficulties posed by ecological issues is our inability to conceive of the structures that result in specific events, and therefore attribute responsibility appropriately. Given that most people have in some part contributed to global warming and plastic pollution, it is not clear how any legal system could deliver the environmental justice required to hold everyone accountable for the consequences of their actions.
Even if there were a means of tracing every particulate of pollution to individual nations, companies or industries, David Whyte, the author of Ecocide, has pointed out that the prosecution of ecocide under international criminal law can only sanction punishments against individuals. As far as the law is concerned, there would be no reason why corporations could not simply scapegoat CEOs or senior advisors without having to change the structure of their business.
Nevertheless, Whyte recognises that the criminalisation of environmental destruction is an important step in the right direction:
“It’s really important to change our language and the way we think about what’s harming the planet – we should push through this crime of ecocide – but it’s not going to change anything unless, at the same time, we change the model of corporate capitalism.”
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