Ecocide Should Be Recognized as a Crime Against Humanity, but We Can’t Wait for The Hague to Judge

Cardboard cutouts of CEOs from BP and Exxon are held a the Global Climate Strike march in New York City on Friday, September 20, 2019. The Global Climate Strike week of action with worldwide strikes expected to stop 'business as usual' in the face of 'the climate emergency. Photo by John Angelillo/UPI

By  - TI - 24. September 2019

The image of Darren Woods, CEO of Exxon Mobil, loomed over the climate strike in New York last Friday afternoon. Rendered in cardboard, 15 feet tall and clutching a bag of fake, bloodied money, the puppet of Woods wore the label “Climate Villain.” It bobbed among the 250,000-strong crowd, joined by cutout versions of BP CEO Bob Dudley and Shell CEO Ben Van Beurden. By the time the puppets were set down in Battery Park, the terminus of the New York protest, the faces of the fossil fuel executives had been daubed with marker-pen devil horns.

As millions of workers and students filled city streets around the world last week, there was no shortage of bold and inventive protest signs. While many expressed broad concerns about the burning planet and an imperiled future, a number, like the CEO puppets, were unambiguous in their antagonism towards the fossil fuel industry and its political enablers. With the stakes of global heating intolerable, and the fanglessness of international climate agreements undeniable, it is little wonder that activists are calling for the major perpetrators of environmental decimation to be seen as guilty parties in mass atrocity, on a par with war crimes and genocide. The demand that ecocide — the decimation of ecosystems, humanity and non-human life — be prosecutable by The International Criminal Court has found renewed force in a climate movement increasingly unafraid to name its enemies.

The push to establish ecocide as an international crime aims to create criminal liability for chief executives and government ministers, while creating a legal duty of care for life on earth. Its strength, however, lies not in the practical or likely ability of The Hague — a profoundly flawed judicial body — to deliver climate justice. The demand that ecocide be recognized as a crime against humanity and non-human life is most powerful as a heuristic: a framework for insisting that environmental destruction has nameable guilty parties, perpetrators of mass atrocity, against whom climate struggle must be waged on numerous fronts.

Activists are calling for ecocide to be recognized as an international crime, on a par with war crimes and genocide, prosecutable by the International Criminal Court.

Efforts around the recognition of ecocide, spearheaded for decades by environmentalist lawyers and advocates like the late British barrister Polly Higgins, reflect the desire to see environmental degradation formally recognized as the highest order of atrocity. Equally, appeals to the ICC suggest an understandable (if Sisyphean) scramble to find an authority, some authority, capable of holding the fossil fuel industry and its state partners accountable.

“Despite the existence of many international agreements – codes of conduct, UN Resolutions, Treaties, Conventions, Protocols etc – the harm is escalating. Not one of these international agreements prohibits ecocide,” reads the mission statement of Ecological Defense Integrity, a U.K.-based non-profit, which aims to advance a law of ecocide at the ICC. “The power of ecocide crime is that it creates a legal duty of care that holds persons of ‘superior responsibility’ to account in a criminal court of law.”

The ICC has jurisdiction over four categories of crime, collectively known as Crimes Against Peace, which are meant to constitute “the most serious crimes of concern to the international community as a whole.” Currently, these are: crimes of genocide, crimes against humanity, war crimes, and crimes of aggression (the latter, only added in 2017, narrowly covers military invasions and occupations in violation of the United Nations charter). Efforts to see ecocide recognized by the ICC are two-fold: either that ecocide be included under crimes against humanity, or established as its own separate Crime Against Peace. The strength of endowing ecocide with its own category would be that it covers the decimation of ecosystems, as well as the destruction of civilian populations, and thus recognizes the existential threat of climate change to life on earth. Ecocide is a crime against humanity, but also non-human life.

The moral grounds are clear for enumerating ecocide among the most serious international crimes. The latest alarming reports from the Intergovernmental Panel on Climate Change (IPCC) made clear that climate change could produce a death toll of hundreds of millions in coming decades. A 2012 report commissioned by 20 governments determined that already 400,000 annual deaths are attributable to climate change related events; that figure is expected to reach 6 million per year by 2030 without drastic shifts to global modes of production and fossil fuel reliance. And a fact that can not be emphasized enough: Just 100 fossil fuel producers have been responsible for 71 percent of greenhouse gas emissions released in the last 30 years.

When it comes to narratives about environmental degradation, the greatest lie of all is that people are not responsible. The second greatest lie is that people are equally responsible. Last year, the New York Times Magazine published an entire issue dedicated to one extended essay by novelist Nathaniel Rich. It was framed as a devastating and overdue exposure of how we could have prevented climate catastrophe in the 1980s, given available scientific understanding, but “we” did not. “All the facts were known, and nothing stood in our way,” wrote Rich. “Nothing, that is, except ourselves.” Rich’s story conveniently ignores the ferocious capitalist hierarchies, which decimate natural resources for profit, while state militaries and police forces help quash environmentalist and indigenous resistance — just think of the militarized police assaults and swathes of criminal charges faced by the Water Protectors who took a stand at Standing Rock.

“It’s hard to think of a problem more widely attributed to ‘abstract entities’ than global warming, allegedly the product of some unquenchable, ubiquitous human thirst for new stuff,” wrote Kate Aronoff in a recent, convincing Jacobin essay, which argued for trying fossil fuel executives for crimes against humanity, starting with with Rex Tillerson and other ExxonMobil executives, who knowingly covered up evidence of climate change devastation and reaped the profits. “We do all create demand for fossil fuels. But supply creates demand,” Aronoff wrote, adding, “In the case of the climate crisis, it’s the industry itself that is driving crimes against humanity, and states that are complicit in issuing everything from drilling and infrastructure permits to generous subsidies — $20 billion per year in the United States alone.”

No climate justice will be possible without bringing down the powerful actors standing in the way of cutting emissions and production.

Those of us with considerable carbon footprints (I include myself, a pretty regular transatlantic flyer) do not abscond our personal responsibility by naming and targeting the guiltiest parties to ecocide. We simply recognize that no climate justice will be possible without bringing down the powerful actors standing in the way of cutting emissions and production. As Genevieve Guenther, founder and director of digital activist group End Climate Silence, put it, “to think of climate change as something that we are doing, instead of something we are being prevented from undoing, perpetuates the very ideology of the fossil-fuel economy we’re trying to transform.” The threat of international criminal prosecution is thus meant to act as a deterrent and a threat to the most powerful drivers of ecocide, clearly delineating that there are nameable perpetrators to hold accountable. Whether the ICC would be willing or able to create material, deterring criminal justice consequences for fossil fuel executives and their in-pocket politicians is, however, another issue.

The idea that ecocide be recognized as an international crime predates the formation of the ICC itself. Early drafts of the Rome Statute, the ICC’s founding document, originally included a law of ecocide. In the 1980s, the United Nations International Law Commission (ILC) considered the inclusion of environmental crime in the Draft Code of Crimes Against the Peace and Security of Mankind, which would later become the Rome Statute. Some versions of the Draft Code went as far as to assert that the crime of ecocide could be established without proving a perpetrator’s intent to create environmental damage. A U.N. representative from Austria stated in 1993, “Since perpetrators of this crime are usually acting out of a profit motive, intent should not be a condition for liability to punishment.” Yet, the article relating the the crime of environmental damage was removed from final Code adopted by the ILC in 1996. The Rome Statute’s inclusion of environmental concerns was limited to cover only intentional acts of environmental degradation perpetrated as crimes of war. Peacetime ecocide, enacted by corporations and governments, “was removed completely, and somewhat mysteriously, from the Code” noted a 2012 report from the University of London’s Human Rights Consortium, which detailed the history of ecocide law.

It would go far too far to speculate that had the Rome Statute included a separate crime of ecocide for the last two decades our climate crisis would have been avoided. Indeed, the ICC has hardly prevented the proliferation of atrocities listed under its statute. The court has long been criticized for its ineffectiveness, and for a disproportionate focus on African nations while conferring impunity on powerful Western leaders like former British Minister Tony Blair for alleged war crimes in Iraq. The United States is not a signatory, fearing that American soldiers could be tried for war crimes; Israel opted out for the same concerns. Furthermore, the court’s pace is glacial, while the pace that glaciers are now melting is anything but.

“I would not look to the ICC for enforcement,” international human rights lawyer Sarah Kay told me. “The Court is relatively young and its jurisdiction, limited. So far it has resisted any attempt at extending its jurisdiction over what is already within the scope of international criminal law, so expecting it to take on a brand new criminal framework would be impossible.” She added, “there are avenues, but they are complex and we are in a time of emergency. We don’t have the time to hold decades-long debates on drafting a new convention. It needs to happen now.”

The ICC is, of course, not the only judicial institution by which to challenge perpetrators of ecocide. Presently in the U.S. nine cities have ongoing civil suits against fossil fuel companies, two states have launched fraud investigations into Exxon specifically over climate change. And as Aronoff also noted, “in Juliana vs. U.S., young people have filed suit against the government for violating their constitutional rights by pursuing policies that intensify global warming, hitting the dense ties between Big Oil and the state.” Invocations of international criminal law are an attempt to escalate the stakes for the most powerful perpetrators. Given the court’s limitations, it may be that the demand that ecocide be recognized as a crime against humanity and non-human life matters more than putting stock in ICC action. The idea that the struggle for climate justice is a fight against powerful actors who have perpetrated atrocities offers a necessary framework and guiding principle for our climate actions.

“There are situations in which framing a specific enemy is not useful and obscures more than it reveals — for example, when the systematic violence of policing is blamed on ‘bad apple’ cops,” said political scientist Thea Riofrancos, co-author of the forthcoming book “A Planet to Win.” “Here, we seem to have the opposite. Fossil fuel companies have sown confusion, and we need clarity about who our opponents and our allies are.” While warning about the “judicialization of politics” potentially wasting activists and lawyers’ time and resources on legal proceedings, Riofrancos noted that she has observed powerful examples of communities deploying the language of legal rights as a tactic outside courtrooms and state houses.

“Fossil fuel companies have sown confusion, and we need clarity about who our opponents and our allies are.”

In another forthcoming book, Riofrancos explores the case of indigenous communities in Ecuador who have invoked legal rights established in the country’s progressive 2008 constitution as a tool and weapon to use in and out of court. These groups enacted legal norms in Ecuador through various creative, interpretative strategies, which “took place in a wide variety of venues, consisting not only, or even primarily, of courtrooms, but also of ministry offices in the capital and in the provinces, state and corporate information centers in affected communities, social movement organization headquarters, anti-mining and anti-oil demonstrations, popular assemblies in repurposed auditoriums and soccer fields, and texts of various genres.”

Other terrains of social justice struggle, such as #MeToo, have also shown the potential uses of criminal justice lexicon and narrative, necessarily deployed outside of a problematic criminal justice apparatus. Those of us who believe that no lasting justice can come from carceral solutions (given the inherent violence of that system) see the intolerable risks of relying on, or bolstering, criminal justice as a path to social justice. The strength of #MeToo revelations lay not in their ability to convince a judge, but to build consensus around the need to unseat powerful perpetrators of sexual violence.

Legal norms and rights can and do take on political life through direct action, community consultation and protest. Even if the court’s signatories resist adopting ecocide as a crime, or as is likely, the court fails to prosecute, let alone convict, the world’s worst climate criminals, we can and must take justice into our own hands. Collective action — like last week’s mass climate strike, like voting for leaders pushing a Green New Deal, like fighting for our lives against capitalism — must be pursued with vigor. This is how we take the fight against ecocide to its perpetrators.

This story is part of Covering Climate Now, a global collaboration of more than 250 news outlets that aims to strengthen coverage of the climate crisis.

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Natasha Lennard@natashalennard