CAMBIO16 Feature: The Missing Crime (“Ecocidio, crimen sin castigo”)


(The following is the original article written by Shirleen Chin for Cambio16, a Spanish current affairs magazine, on the life of Polly Higgins and her quest to make ecocide an international crime)

THE MISSING CRIME  

All Fired Up
Picture this: you’re standing in an open field watching helplessly as a massive inferno engulfs hectares of hard-toiled farmland, generationally used to grow lemons and avocados. Ever- increasing global temperatures, lack of rainfall and parched vegetation over the years have concocted the perfect recipe for a tragic Southern Californian roast. This was the reality experienced by several families in December 2017, when the wildfire named Thomas Fire blazed, through the region that winter. To put it in perspective, the fire brought destruction to a land area equal to the size of 213,000 football fields, the entirety of Hong Kong.

That Woman
As the West Coast went up in flames, across the United States on the East Coast, 4,500km away, on the Eastern Coast of the United States, a distinguished silver-haired lady, unpacked four curved tubes from her luggage and clicked them into place. She then reached into her hand-carry for something else: a fine bottle of Scotch whisky. After pouring herself and her host a glass, she took a sip and twirled the hula hoop, that she had just assembled, and began chatting like nothing she had just done was out of the ordinary. Her name was Polly Higgins. She had just arrived in wintery New York City for the 16th Session of the Assembly of States Parties (ASP) of the International Criminal Court scheduled for the following week at the United Nations’ headquarters. It was not Polly’s first time attending the ASP or any other major conference where the rule of law and environmental justice were topics to be discussed. Unbeknownst at the time, her two weeks in New York City would yield another let-down. The political red tape and appetite she encountered to further her campaign would prove to be a sticky barrier. Ten years ago, Polly abandoned her lucrative career in London as a rising barrister to start a campaign on ecocide crime. While many would see such a switch as a big leap of faith into the risky unknown, she saw it as a necessary response, no different from wanting to rescue a drowning victim or a person trapped in a burning home. Polly’s first-hand knowledge of the basic, legal protections provided even to the worst of criminals, led her to wonder how the Earth, as a victim of unsustainable human activity, could similarly be protected. To her, the answer was simple: introduce the missing crime of Ecocide; to do no harm. Polly sold her house and used the proceeds to initiate the campaign our world continues to need.

Ecocide on Our Doorsteps
The definition submitted by Polly Higgins to the UN International Law Commission in 2010 describes ecocide as “the serious loss, damage to, or destruction of, the environment to such an extent that peaceful enjoyment by the inhabitants in that territory is severely diminished”. One year after the 2017’s Thomas Fire described above, wildfires erupted again in South California, called the Woolsey Fire. This time the fires primarily affected luxury houses of residents living in Malibu and to the north, including the homes of Hollywood celebrities like the Kardashians, Lady Gaga and Orlando Bloom. Fast forward to late 2019, the continent of Australia is similarly hit by wildfires described by many as apocalyptic. To date, over 1 billion animals in Australia have perished, even more injured, nearly 30 people have been killed and a land area the size of 18,200,000 football fields or the entire country of Portugal – and the fire is still not over.

Falling Off the Tipping Point
The planet is facing extreme, often violent weather events, extinction of numerous species at an alarming rate, increasing rates of acidification in our oceans and rising sea-level, to name a few. Extreme hot and cold temperatures have been observed globally. The city of Paris sweltered in 45 degrees heat last year causing a need to create “cool rooms” to avoid repeating traumas like that of the 2003 heatwave that killed 15,000 people in the country. More and more places are exposed to either too much rain or too little water. In the South of Spain, as temperatures soar and rainfalls diminish, winemakers will find it difficult to grow grapes. In the future, atypical places like Scandinavia and Siberia may just replace traditional wine regions like Spain. In Kerala, India, erratic weather patterns brought disastrous floods killing more than four hundred people in 2018. Every year for the past five years has been the hottest on record. In Iraq, as 50 degrees is now becoming the new norm during the summer, the wealthy few turn to air-conditioning to cool down while the poor struggle to afford generators for air-conditioning. A United Nations report released by UN Special Rapporteur Professor Philip Alston describes this scenario as “climate apartheid”.

A Drowning Reality
According to the World Meteorology Organisation, global average temperatures are on track to increase between 3 to 5 degrees by the end of the century. The last time there was this much carbon dioxide in the atmosphere, humans did not walk the planet. In the Pacific region, sea level is projected to go as high as 0.8 metres by year 2100. Solomon Islands, a sovereign state with six major islands and hundreds of smaller islands have lost five islands over the years and is at risk of losing six more, with one of the six home to 25 family units. Oceans are warming 40% faster than the United Nation’s prediction of just six years ago. Those whose livelihoods depend on fishing are affected by the migration of fish to cooler areas. Tuvalu, the fourth smallest country in the world, is not only threatened by sea level rise but also by diminishing fish resources.

All Talk and No Show
For almost three decades, the United Nations has served as a platform for climate talks. The United Nations Climate Change Conference or the Conference of the Parties (COP) are held every year, since 1992, with a view to encourage countries to commit to ever-ambitious emissions reduction. Many critics have said that this is only a ‘dog and pony show’ because the amount of carbon dioxide in our atmosphere has only gone one way and that is up.

A Little State in the South Pacific

Source: IUCN Oceania

It came as no surprise that Polly was approached by Vanuatu, who was reaching out based on their established policy on climate change. Vanuatu is a small island developing state in the South Pacific. With one of the smallest GDP in the world, its annual share of the world’s CO2 emissions is negligible and by that, I mean, 0.00%. Vanuatu, like its neighbouring countries in the Pacific, has been on the frontlines of climate change. When category 5 Cyclone Pam tore through the region in 2015, it wiped out more than 60% of its GDP, a GDP that is heavily reliant on agriculture and tourism.

The Duty of Care
With a focus on international criminal justice, Polly’s campaign aimed at the use of international criminal law as a strong deterrent against ecocidal practices. This is because there is currently neither legally binding international response nor any duty of care for the planet. In other words, where there is no crime, no punishment can be imposed. Introducing the crime of ecocide obliges governments, companies and individuals to think twice about continuing business as usual – dirty business that has brought about more frequent, intense and erratic climate events. Compared to “soft law” instruments, like the Paris Agreement, the crime of ecocide will actually signal a zero-tolerance policy towards harmful behaviour. The seat of the International Criminal Court is located in The Hague, the Netherlands. Its governing document is called the Rome Statute. The four widely recognised serious international crimes contained within the Rome Statute are genocide, crimes against humanity, war crimes and crimes of aggression. Blatantly missing from this list, is ecocide, a crime that determines the survival of our planet and its inhabitants.

Spin Doctors
There are volumes of scientific climate data to demonstrate that climate change is real. Yet, carbon major countries and companies choose to undermine its alarming calls. In fact, carbon major companies have known about the severe and negative impacts of extracting what they call “black gold” since the 1970s. They have chosen to go the path taken by the tobacco industry by spinning tales to mislead, confuse and manipulate public opinion. Equally perpetuating ecocidal practices are the other extractive and polluting industries such as mining, logging and waste management companies. Where regulation or the rule of law is weak, as often is the case in the countries where these companies operate, years of unsustainable and unaccounted practices have brought irreversible damage to the environment and the helpless communities. Often, government officials are complicit in the damaging acts.

Power to the Little Ones
The International Criminal Court offers a lifeline, unlike no other, to those who have suffered in the hands of unscrupulous practices that harm the environment. At present, there are 123 countries who are members (called states parties) of the court. It only takes one state to table a proposal to include ecocide crime into the Rome Statute. Unlike other international voting procedures, such as the UN where the Security Council has veto power, or the European Council where voting is based on population size, each ICC state party has one vote irrespective of political power or size. Once a simple majority (sixty-three countries) agrees to consider the proposal, all it takes is a two-thirds majority or eighty-two states parties to make ecocide law. It is important to note that there are fifty-seven small island developing states worldwide. There are certainly other states who would consider such a proposal. Given the urgency of the climate crisis, the motivation to explore this legal avenue should be of utmost priority to all island nations and countries whose (capital) cities are vulnerable to the impacts of climate change. The inclusion of ecocide crime in the Rome Statute will signal the much-needed zero-tolerance towards harmful behaviour and galvanise genuine action towards net zero carbon emissions.

No More Dilly-Dally!
The planet has become warmer since industrialisation began in 1750 and human activity is threatening to push mankind into a point of no return. The earth has warmed by 1 degree, with two-thirds of this happening at breakneck speed since 1975. The acceptable limit for a climate- safe future for human and nature is 1.5 degrees. In order to achieve this, emissions must be cut by half by 2030 and be reduced to net zero by 2050. Carbon capture or carbon drawdown technology is available and has become cheaper over the years. Planting trees or rehabilitating wetlands can be easily done to sequester the carbon dioxide in the air. Consumption patterns are slowly changing in some parts of the world as sustainable awareness grows each day. There is hardly any excuse to avoid carbon reversal actions at the individual or governmental level. The UN Secretary General is appealing for countries worldwide to stop the building of new coal plants, transition to 100% renewables and end all subsidies for fossil fuels. After all, a greener economy is not just good for all, it holds immense economic opportunities for businesses. It is time to leave the old world behind. Investors are now seeing the risks and faults in the extractive industries and are divesting. Consumers are also demanding better.

“If this is what it takes…”

Sadly, Polly passed away last April, five weeks after unexpectedly being diagnosed with terminal cancer. It was a sudden and tragic loss to her family, friends, the communities she inspired and of course, Mother Earth. She still had so many plans for her campaign. In her words, almost like a premonition, “if this is what it takes” to draw attention to the need for ecocide law, Polly passing away may just be the trigger the world needs. With bad comes the good and vice versa. The rise of grassroots movements like Extinction Rebellion and the introduction to Greta Thunberg happened simultaneously with some of the most tweeted environmental tragedies on social media and poor political leadership – just see what Brazilian President Jair Bolsonaro had to say about the Amazon fires.

In December 2019, at the 18th Session of the Assembly of States Parties (ASP) of the International Criminal Court in The Hague, Vanuatu and Maldives both called the International Criminal Court to consider introducing the crime of ecocide.

Indigenous communities in Brazil are rallying to call for the protection of the Amazon from President Bolsonaro. France’s President, Emmanuel Macron, has openly declared that the crime of ecocide will work more effectively if adopted at international level. His government is already considering inclusion of ecocide into national law. The world is finally becoming more aware of the importance of having ecocide law in place.

***

(c) Ruth Davey

In loving memory of Earth’s lawyer/guardian angel, co-Founder of Ecological Defence Integrity (EDI), Polly Higgins, 1968 – 2019

Polly’s non-profit organisation, Ecological Defence Integrity, continues her work at the diplomatic and legal as well at grassroots level under the name Stop Ecocide to bring about the acknowledgement, advancement and inclusion of ecocide crime at the international level. Polly left behind a spark and her team is already busy fanning the fire – as a figure of speech of course.

Original version of the article published in CAMBIO 16 March 2020.

The magazine can be purchased via this link HERE

Categories: Features

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