According to the latest UN global assessment, the NDC Synthesis Report, nations around the world are pledging “far away” from the Paris target. If all of the pledges submitted so far were fulfilled, global emissions would be reduced by only 1% by 2030, compared with 2010 levels. But scientists have said that we need it to be at 45%, if we want to keep within the 1.5°C goal—that is, avoiding (more) climate catastrophe. In our race against time, could enshrining “ecocide” in-law help?
“We are very far away from a pathway that will meet the Paris agreement goal,” says Patricia Espinosa, executive secretary of UN Climate Change. “We are collectively walking into a minefield blindfolded. The next step could be a disaster.” Indeed, if we exceed the threshold of a 1.5°C temperature increase, it would be a disaster. Already today, we are seeing heatwaves, sea-level rise, droughts, wildfires, extreme weather. But an even warmer world, which we are very much on track towards, would mean all this and more. That is mass famine, displacement, and extinction.
And the assessment published last Friday by the UN doesn’t even include all countries. In fact, it only covers countries responsible for a third of global emissions. Because only 75 of the 197 signatories to the Paris accord submitted their national action plans (for reducing emissions from now until 2030) in time to be assessed. And some of the world’s biggest emitters, like the US, China and India, have yet to formulate NDCs. This means that while they have agreed to try to help keep global temperature increase within 1.5°C, they have not made targets for 2030. These 2030 targets are important because, as UN secretary-general António Guterres highlights: “Long-term commitments must be matched by immediate actions to launch the decade of transformation that people and planet so desperately need.”
All countries, whether they were involved in this assessment or not, must step up. Considering the impending scale of the climate catastrophe that is upon us, it is alarming that governments are not taking this seriously enough. “It is incredible,” remarks Espinosa, “to think that just when nations are facing an emergency that could eventually end human life on this planet, many are sticking to their business-as-usual approach.”
How do we avoid climate disaster?
Advocates who want to outlaw “ecocide” will say that we can find hope in closing the loopholes in international law. As Jojo Mehta, co-founder of the Stop Ecocide campaign, and Julia Jackson write for the Guardian: “Enacting laws against ecocide, as is under consideration in a growing number of jurisdictions, offers a way to correct the shortcomings of the Paris agreement. Whereas Paris lacks sufficient ambition, transparency and accountability, the criminalisation of ecocide would be an enforceable deterrent. Outlawing ecocide would also address a key root cause of global climate change: the widespread destruction of nature“.
In other words: we’ll have “the unprecedented chance to create a protective measure with legal teeth that could deter reckless leaders from damaging, short-sighted policies”. But what is “ecocide”, and what does it mean to outlaw it?
Where does “ecocide” come from?
Derived from the Greek word oikos (meaning “home”) and the Latin word cadere (meaning “to kill), “ecocide” literally means “killing our home”. The word is defined in the dictionary to mean “destruction of the natural environment by deliberate or negligent human action”. The term dates back to 1970, when American botanist Arthur Galston used it to describe the effects of Agent Orange on Vietnam and Cambodia’s forests. It was picked up by Olof Palme, Sweden’s premier, who used it at a UN environmental conference in Stockholm to talk about Agent orange too, in 1972. An ecocide convention was proposed, but it did not pass. Later, in the 1990s, when the world’s first permanent international criminal court was being created, the ICC, the founding document that was being drafted did seem like it was to include the criminalisation of environmental destruction, but that never materialised either.
Accordingly, there just wasn’t enough political support for it. But things began to change in 2017. Polly Higgins, a British barrister, together with environmental activist Jojo Mehta, launched the Stop Ecocide campaign. The campaign gained momentum incredibly quickly. And three years on, today, an expert panel of international criminal lawyers is drafting a definition of ecocide. If they succeed, environmental destruction will be in the same legal category as war crimes, genocides, and crimes against humanity.
What counts as ecocide?
According to the Stop Ecocide campaign, a criminal law of ecocide could address many environmental issues. Including ocean damage (industrial fishing, oil spills, plastic pollution, deep-sea mining), deforestation (industrial livestock farming, mineral extraction, palm oil and wood production), land and water contamination (oil spills, mining, tar sands, fracking, textile chemicals, agricultural pollution), and air pollution (chemical disasters and weapons, radioactive contamination, industrial emissions). The list, as you can imagine, is long and non-exhaustive. And not only will outlawing ecocide protect the earth, but it will also protect the earth’s defenders too. That is, Indigenous communities and other vulnerable populations, who live near and/or protect and defend the environment.
For example, as Mehta and Jackson point out: Brazil’s Yanomami faces mercury poisoning generated by the 20,000 illegal miners in their territories. 87% of Native Alaskan villages experience climate-related erosion, even as they face growing calls to drill on their lands. Criminalising ecocide isn’t just an environmental movement, it’s one about justice too.
Where do you draw the line?
But drafting a law means you have to get specific. The co-chair of the panel drafting the law, Philippe Sands, is “concerned that the bar for what counts as “ecocide” could be set too high.”
As Mélissa Godin explains in TIME: “There’s historical precedence for such a scenario: When the idea of “genocide” was first proposed in 1944 by Raphael Lemkin, a Polish lawyer, he envisioned a law that would prosecute individuals that killed members of a national, ethnic, racial, religious or political group. But when member states—many of whom were worried about their own histories of discrimination—came together to actually draft the law in 1948, they decided that lawyers needed to prove not only that an individual killed members of a group but that they did so with the specific intent to kill. The result is that most genocide trials heard by the ICC have not ended with a guilty verdict because the burden of proof is too high.”Â
“On the other hand, if the bar is set too low—if the ecocide law encompasses too many types of alleged environmentally destructive acts, and implicates too many types of people and institutions—it may lose political support. Many people might get behind an ecocide law that charges mega-corporations for polluting on a grand scale; it is less likely they would support a law that penalizes anyone who destroys the environment in any way.”
What difference would it make?
If they work out the kinks an ecocide law could be a gamechanger. For one, it would represent a symbolic change. Having the ICC regard environmental destruction on the same level as genocide is a big deal. Mehta says that this would incentivise leaders to act more ethically. A CEO “doesn’t want to be seen in the same bracket as a genocidal maniac.” Another symbolic change would be the fact that nature would be granted rights. Which is something that is quite revolutionary, and certainly sends a message.
But more practically speaking, having this law could set a legal precedent. This means that nations around the world could change their own national criminal laws. Consequently, this would expand the tools available to environmental justice activists. Another way this could help would be to close loopholes that exist. Environmental crimes sometimes fall outside of national jurisdictions. This is especially the case for poorer countries where legal barriers make it hard to tackle (foreign) corporate crime.
Godin notes additionally that “an ecocide law would be unique in the ICC’s history, not only because of what it would protect but who it could go after—the heads of countries and corporations that are big polluters. Historically, the ICC has been criticized for targeting only African dictators while turning a blind eye to Western leaders responsible for mass atrocities. But with an ecocide law, powerful white men—who are often disproportionately represented in extractive industries—could face criminal charges.”
Is there hope?
Criminalising ecocide is only one of the many climate solutions we must look towards. There are many different ones out there, and this is not a silver bullet. But it is one that would make a big difference. Citizens, scientists, youth activists around the world have called on their leaders to introduce ecocide at the ICC. French President Emmanuel Macron has promised to advocate for it on the international stage. Finland and Belgium expressed interest during the ICC’s annual assembly. The EU has voted to encourage its recognition by member states. Pope Francis even called for ecocide to become an international crime against peace in 2019.
Many challenges lie ahead. Once the expert panel finishes drafting the law, that’s only the first step. A member state needs to propose it to the ICC. 50% of the ICC states have to approve it. Then they need to debate the exact definition before adopting and ratifying it. And even if it’s put into place, the ICC has limited legal authority. The ICC cannot enforce laws, member states must arrest and surrender the accused. Meaning countries can refuse to comply. And over 70 countries are not members of the ICC, including the US. This means that Exxon and Chevron, American-owned corporations, can’t be prosecuted.
The expert panel is aware of this. “Let’s not be starry-eyed about our legal international frameworks at the international level,” says Sands. It’s a measured kind of hope, I think. A recognition that it might not be effective, but that it matters anyway. Mehta recognises this too. “We know one law won’t’ change everything,” she says. “But without something like this in the first place, it’s hard to see how these [climate] targets will be met.”
Which is to say, we should at least give it a shot.
