[P2P-F] Fwd: Against Ecocide (GTN Discussion)

Sat Aug 6 07:20:30 CEST 2016

---------- Forwarded message ----------
From: Great Transition Network <gtnetwork at greattransition.org>
Date: Sat, Aug 6, 2016 at 2:00 AM
Subject: Against Ecocide (GTN Discussion)
To: michelsub2004 at gmail.com

>From Femke Wijdekop <fwijdekop at hotmail.com>

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Dear GTN members,

Thank you very much for sharing your thoughts on ecocide law and for your
insightful comments that have helped me to further develop my thinking. I
want to begin by with some general thoughts and then respond to some of the
specific points raised in the discussion.

As many have pointed out, while an international prohibition of ecocide has
a role to play in the transition to a more just and sustainable world (and
I would argue that this role could be a significant one), it is
insufficient on its own to restore humanity’s relationship with nature from
one of exploitation and abuse to one of care and flourishing. I think our
abusive relationship with nature comes from a deep misunderstanding of that
relationship and of our place in the community of nature. The idea that
humans are “separate” from nature, that nature is an “object,” and that we
should dominate and exploit nature in other to fulfill our needs and create
safety for ourselves, is a relatively young one in the history of mankind.
Yet, as we know, our legal and economic systems and the institutions they
created have all been built up around this notion—one that is erroneous,
harmful, and scientifically outdated, as modern science proves to us that
we do not live in a
“clockwork universe,” but in a universe that is intelligent, intentional,
creative, a network consisting of relationships instead of a machine
consisting of components. (I have read “The Ecology of Law,” by Fritjof
Capra and GTN contributor Ugot Mattei with great interest.)

But law is a social construct and responds to new scientific insights and
emerging harms (or should respond to them, if it is to keep its relevance
and authority.) The proposal to prohibit ecocide came as a response to the
emerging harm of biological and chemical warfare in the 1960s and 70s. The
current growing movement of lawyers and concerned citizens who want to see
the moral wrong of massive environmental destruction recognized as a legal
wrong is responding to this state of ecological emergency in which we find
ourselves today. The call to make ecocide an international crime, to create
an Ombudsman for Future Generations at governmental levels, to give rights
to nature, and to establish a duty of care towards future generations
through climate litigation, are expressions of an emerging—or, perhaps,
re-emerging—worldview that recognizes our interconnectedness with nature
and with each other. These activists are informed by an understanding that
the harm we do to the Earth
is harm that will come back to haunt us. Ecocide law entails using criminal
law as a tool to address and prevent environmental harm, just as the Dutch
climate case used tort law to address failing climate policy. The Climate
Case lawyer Roger Cox rooted his arguments that the Dutch government was
failing in its duty of care towards Dutch citizens because of insufficient
CO2 reductions extremely well in existing tort law, with all the
technicalities and references to established jurisprudence that this
entails. Yet, when asked to describe this case to which he had dedicated
ten years of his life to, he called it “A Lawsuit of Love,” because it was
love for this planet and for future generations that had motivated him to
start it and that enabled him to persevere for so many years.

The advocates of ecocide legislation that I know, including myself, are
coming at their work from this place of love for the Earth and its
inhabitants (humans or otherwise), and we choose to put our legal skills in
service to a vision of a more compassionate and just world. And while law
on its own (in a vacuum) is not able to create a culture of harmonious
relating with nature or with each other, it does shape our norms and values
and can make certain actions less appealing or even taboo. Law does not
exist in a vacuum. The legislation that gave women the right to vote,
itself an expression of a process of emancipation, set in motion a process
that fundamentally changed society’s perception of women and their role in
society. Citizens internalized the new norms to such a degree that it is
now incredible to believe that married women in the Netherlands have only
been allowed to work since 1956. If the universe is a network of
relationships, so, too, is our society, and laws both
catalyze and give expression to changes in consciousness, especially when
the new norms are supportive of harmonious and sustainable relationships
between humans and humans and nature.

With this being my general commentary, I want to now address the following
ten specific points (I wish to thank Koffi Dogbevi and Polly Higgins for
their input):

1. The question of limiting the prohibition of ecocide to times of war,
because the Rome Statute is geared towards criminal liability for state
officials (instead of CEOs/companies) and because an improvement upon the
wartime prohibition of ecocide might be the only politically feasible or
realistic option.

>From the perspective of Small Island Developing States that are facing a
very realistic existential threat of loss of land and loss of lives, this
is not a matter that can be addressed through wartime provisions. Indeed,
to do so would be to abrogate our responsibilities for humanity as a whole.
Do we go for a compromise that can never meet the requirements of those
most at risk, or do we stand strong and call for what is required, namely
(1) the criminalization of ecosystem destruction and (2) the advancement of
climate justice? The compromise strategy leads to loss of lives; the latter
strategy saves lives.

Law is a tool for justice; international criminal law, like all law, is not
static, but must reflect our growing understanding of the harm that we
face. To remain complicit in ecocide on the basis that it does not fit an
old model of law suggests that it is time to update our legal frameworks.

2. The related question of holding only state officials, as opposed to
multinationals, liable for ecocide, and the question of how effective a
prohibition of ecocide would really be given that the US is not a party to
the ICC.

To hold CEOs liable for ecocide is not too ambitious. Corporations and
corporate executives could be held criminally liable under the Statute of
Rome for aiding or abetting in the commission of, attempting to commit, or
providing means for the commission of a crime (Art.25 al.3-c).

And while the US has not ratified the Statute of Rome, it has been actively
respecting and practicing it through the Alien Tort Statute (ATS). The ATS
gives aliens a federal cause of action for violations of international law.
See Kadic, 70 F.3d 232, 238 (2d Cir. 1995) "[The ATS] confers federal
subject-matter jurisdiction when the following three conditions are
satisfied: (1) an alien sues (2) for a tort (3) committed in violation of
the law of nations (i.e., international law)." And in many cases,
corporations have been held criminally liable under the US Alien Tort
Statute with use of the Rome Statute provisions:

*****In Aziz v. Alcolac, Inc., the court found that while the Rome Statute
of the ICC was not customary international law, its treaty status favored
the acceptance of the mens rea standard as authoritative for corporate
criminal liability (Aziz v. Alcolac, Inc., 658 F.3d 388).

*****In Bowoto v. Chevron Corp., the court concluded that defendants may be
held liable under international law for aiding and abetting the Nigerian
military in the commission of “crimes against humanity” (Bowoto v. Chevron
Corp., N.D. Cal. Aug. 21, 2006).

*****In Khulumani v. Barclay (Nat’l Bank Ltd., 504 F. 3d 254, 258, 2d Cir.
N/Y. 2007), Plaintiff representatives of apartheid victims sued defendant
corporations, alleging various violations of international law, as well as
claims under, inter alia, the Alien Tort Claims Act. The court reasoned
that the Rome Statute is particularly significant for the present inquiry
because, unlike other sources of international legislation, it articulates
the mens rea required for aiding and abetting liability. The Statute makes
clear that, other than assistance rendered to the commission of a crime by
a group of persons acting with a common purpose, a defendant is guilty of
aiding and abetting the commission of a crime only if he does so "[f]or the
purpose of facilitating the commission of such a crime." (Art. 25 (3)(c) of
the Rome Statute).

*****In Doe v. Exxon Mobil Corp. (654F. 3d 11), the Court stated, “Although
the text of Article 25(3)(c) of the [Rome Statute] appears to require proof
of ‘purpose,’ the text of Article 25(3)(d) requires no more than
‘knowledge.’ Given that Exxon is alleged to have aided and abetted the
Indonesian military forces, which in turn are alleged to have committed
violations of the law of nations against appellants, were the Rome Statute
to apply it appears that Article 25(3)(d) and its mens rea of ‘knowledge’
would apply. Cf. Prosecutor v. Thomas Lubanga Dyilo, Case No.
ICC/01/04-01/06, Pre-Trial Chamber Decision on the Confirmation of Charges
(Jan. 29, 2007) (applying a ‘knowledge’ standard under Article 25(3)(a) to
international law violations by co-perpetrator).”

3. The point that a nation enforcing ecocide law would make itself
“uncompetitive” in the global marketplace and polluting companies would
simply move elsewhere.

An important motivation for including ecocide in the Rome Statute treaty of
the ICC—as opposed to a regional treaty—is the global reach of the ICC and
the jus cogens nature of its norms (fundamental, overriding principles of
international law from which no derogation is permitted). Making ecocide a
crime under the Rome Statute would create a level playing field since
ecocide would be prohibited in all the state parties of the ICC. State
parties would be obliged to prohibit ecocide in their national laws because
the ICC works with the principle of complementarity—meaning that the first
responsibility to prosecute the Rome Statute crimes lies with the states.
If national courts are unable or unwilling to prosecute, the ICC can step
in. State parties would simply not be allowed to tolerate ecocide on their
territories any more than they are currently allowed to tolerate genocide
or war crimes, no matter what 'economic advantages' they might bring.
Moreover, the universal
jurisdiction of the ICC means that the ICC also has jurisdiction on the
territory of a non-state party where that non-state party has entered into
an agreement with the court providing for it to have such jurisdiction in a
particular case. Though the United States is not party to the ICC and
probably unlikely to enter into such agreements, Rome Statute provisions,
as noted earlier, have been respected and used in US jurisprudence.

4. The lack of legitimacy and authority of the ICC.

It is true that the ICC is not as strong as it could be—indeed, that could
be said about many judicial systems in the world. But that does not mean we
should abandon it—it has a role that, in this day of increased
transboundary crime, is required now more than before. This leaves us with
a choice: Do we abandon the court, or do we strengthen it? We could replace
and create a new International Environmental Tribunal (a process that would
take a lot of time and resources), or we could find ways of ensuring it is
supported.

5. The point of only criminalizing ecocide when intent can be proven.

Although the existing ICC structure is built around intentionality, the
Rome Statute leaves the door open for potential future amendments that will
provide otherwise [See Article 30: “UNLESS OTHERWISE PROVIDED, a person
shall be criminally responsible and liable for punishment for a crime
within the jurisdiction of the Court only if the material elements are
committed with intent and knowledge” (emphasis added)].

While international criminal law is built around intentionality, this is
not always the case when it comes to international environmental law. A
person is said to have knowledge when that person should have known that
her action could have caused the damage. The precautionary principle is
clear and non-ambiguous on this point (“where there are threats of serious
or irreversible damage, the lack of full scientific certainty shall not be
used as a reason for postponing cost-effective measures to prevent
environment degradation,” as described in Principle 15 of the Rio
Declaration). Ecocide is being defined as serious and/or irreversible
damages, the occurrence of the damage will require no proof of knowledge or
intent if the author has not followed its duty of care or acted with
precaution. Also, it is general knowledge that the use of dangerous
products per se implies liability when damage arises without the need of
proving knowledge and intent.

6. The point that the history of the ICC shows that there is a big time lag
(often multiple decades) between the start of ICC investigations and the
moment of the actual verdict. In the case of ecocide, by the time of the
verdict, the culpable company will probably be dissolved, assets divided,
bonuses paid out to executives who have disappeared

Dissolving the company, dividing its assets, merging it with a novel
entity, or changing its initial purpose does not permit a company to avoid
criminal liability under the End Ecocide proposal. This proposal contains
provisions that cover the very important consequences arising from the
dissolution, division, or liquidation of companies’ assets. Article
25(1)(B) of the proposal reads: “For purposes of this Article 25(1), a
person may also include: ‘iii. Successors-in-interest, but only if no
adequate remedies are available under Article 77 against the original
interest holder(s) and the successors are, or shall be, continuing the same
or a substantially similar use or operation of the interest. The
responsibility of successors may not be avoided by the terms of any
contract if the said terms have the effect of eliminating the availability
of any party answerable to the ICC Court for the offenses claimed under
Article 5(e). Such contractual terms shall be considered null and
void for the purposes of Article 25(1).’”

In comparison, US Courts in many occasions have been able to trace the past
company in the newly created entities.

****In the case United States v. Alcan Aluminum Corp. (See United States v.
Alcan Aluminum Corp., 97 F. Supp. 2d 248, 2000 U.S. Dist. LEXIS 5689, 50
ERC (BNA) 1772 (N.D.N.Y 2000)), where the judge held defendant Alcan
Aluminum Corp. liable for cleanup costs at two hazardous waste sites, Alcan
was able to trace this contamination back to the use of PCB hydraulic oils
in the remelt operation in the late 1960s and 1970. As Monsanto was the
sole domestic manufacturer of PCBs in the US, the Court ordered a joint
liability with regard to the cleanup of contamination, despite the fact
that Monsanto ceased production of PCB containing fluids, and that PCB
fluids were not commercially available in the United States.

****In a similar case, Solutia, Inc. v. McWane (See Solutia, Inc. v.
McWane, Inc., 726 F. Supp. 2d 1316, 2010 U.S. Dist. LEXIS 90853), the Court
found Solutia liable for the cleanup of the area where hazardous substances
were concerned, including PCBs associated with releases or discharges as a
result of the operations, including waste disposal by Solutia. Like in
United States v. Alcan Aluminum Corp., Monsanto and other predecessors have
come to be located and must jointly undertake the cleanup effort.

7. The connection between violations of human rights and violations of
nature’s rights, as illustrated by the increasing violence against
environmental defenders.

If the massive damage and destruction to the environment is criminalized,
environmental defenders will have the law at their side in their work to
protect the environment. It would be much harder to brand them as
“terrorists” or enemies of progress if the protection of the environment is
recognized as a matter of the highest international concern. Instead of
using the law against them—limiting the operational space of environmental
NGOs or the freedom of expression of individual environmental defenders in
the name of “national security”— environmental defenders would recognized
for performing a legitimate task of international concern—the protection of
ecosystems—that in fact should be taken up by the government. This issue
has my particular interest as I work on the project "Defending
Environmental Defenders", a collaborative project of IUCN Netherlands,
Friends of the Earth and Global Witness:
www.iucn.nl/en/recent/dutch-postcode-lottery-helps-improve-safety-of-
environmental-defenders

8. The limitations of “legal language” in a complex ecosystem.

Rights language has its limitations, as shown by the contribution of Tim
Weiskel. It is important to see ecocide legislation as addressing the
*worst* violations of the governing “laws” of the Earth’s ecosystem, and,
as such, being one step in harmonizing human laws with nature’s laws. This
process should start with the most flagrant violations of nature’s laws
and, being a systems approach, seek the expertise of many bodies of
knowledge, with a special role for law and biology. For flagrant violations
of nature’s law, ecocide is understood by Polly Higgins as referring to
widespread, long-lasting, or severe environmental harm, with these term
being defined under the 1977 United Nations Environmental Modification
Convention as follows:
1. widespread: encompassing an area on the scale of several hundred square
kilometers;
2. long-lasting: lasting for a period of months, or approximately a season;
3. severe: involving serious or significant disruption or harm to human
life, natural and economic resources, or other assets

As for the point that “rights” of one group of humans (or humans acting as
guardians for non-humans) are competing with the rights of another group
(the adversarial nature of our legal system), I recently learned that the
original meaning of the word “lawyer” is actually “healer of the woes of
the community,” pointing to a much more holistic understanding of doing
justice. The adversarial character of our legal system is not set in stone.
There is an emerging international movement called the Integrative Law
Movement, which aims to create a legal system oriented towards
values-based, creative, sustainable, and holistic solutions that build and
strengthen relationships—instead of a legal victory of one party at the
expense of another. Ecocide law can be seen as being a part of this
Integrative Law Movement since it is meant to help build a sustainable
relationship between humans and the natural world and is aimed at
protecting the rights of all the inhabitants of an
ecosystem, through prohibiting its destruction or loss to such an extent
that peaceful enjoyment by the inhabitants of that territory has been or
will be severely diminished (definition of Polly Higgins).

9. The point that ecocide law is in danger of strengthening the
“adversarial paradigm” and that instead of international criminal law,
Restorative Justice (with its emphasis on connection, empathy, compassion,
and understanding) is necessary to heal the environmental and societal harm
caused by ecocidal activity.

and

10. The responsibility all of us have, as consumers with high-carbon
lifestyles, to realize our contribution to environmental damage and
destruction. The point that we have to and address own our own part in the
ecocide we see playing out in the world instead of focusing on bringing
corporate perpetrators to justice.

I empathize with these points, but I think we should not ignore the power
structures that exist in this world. We individuals do not have the
leverage to solve the problem of ecocide when faced with the Goliath of
polluting companies. And these companies are mostly law-abiding, since it
is our legal system that permits massive environmental damage and
destruction as an “externality” of seeking profit. Also, we are not
individually responsible for the total sum of environmental destruction, if
we are born into (and subject to) a system which does not acknowledge the
intrinsic value of nature. The environmental crisis does ask for individual
ecological awakening, awareness, and low-carbon lifestyles, but change on
the individual level is not enough. We can try to live as organically as
possible, yet without system change, without changing the legal framework
within which economic activities take place, this will not be sufficient.

For the sake of protecting those who cannot assert themselves, those who do
not have political leverage or even a human voice, but who suffer from the
ecological damage and destruction caused by ecocide, perpetrators of
ecocide should be held responsible for the effects of their actions.
Justice serves to protect society at large. For those who are unwilling or
unable to hold their remit of responsibility, namely the primary duty of
care for humanity and the Earth, it becomes incumbent upon the legal system
to ensure that whatever the abuse is, it is stopped. Restorative Justice
only works for those who are willing to take responsibility. At this point,
it is unlikely that all those who (intentionally or unintentionally) cause
ecocide are willing to take responsibility for—or even understand—the harm
they do to the natural world, especially when they are desensitized from
feeling their connection to that natural world. Of course, addressing and
healing that disconnect from the
natural world is where the ultimate solution lies, yet in the meantime,
society has to be protected from extremely harmful actions that can be a
result of such disconnectedness from nature.

Having said that, Restorative Justice is part of the amendments that both
Polly Higgins and End Ecocide on Earth (see www.endecocide.org) advocate.
Accountability is still very much at the forefront of both amendments;
however, where responsibility is upheld, there is enormous scope for
judicial application of restorative justice principles, as was explored
during the Mock Ecocide Trial held in the UK Supreme Court in 2011
organized as by Polly Higgins.

Femke Wijdekop

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