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Thu Jun 30 23:44:32 CEST 2016

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International law in the form of agreements, accords, and pacts has played
a central, if imperfect, role in managing transnational relations in the
post-WWII era. Such instruments cover a broad spectrum of global issues
ranging from trade and nuclear weapons to territorial waters and crimes
against peace. In the environmental domain alone, some 100 instruments are
in place. While these have brought a modicum of order to international
relations, the persistence of geopolitical, ethnic, human rights, and
ecological crises attest to the limitations of law in dealing with perils
of an interdependent world. International law is a necessary but certainly
not sufficient condition to ensuring a thriving planetary future.

Femke Wijdekop=E2=80=99s description of the movement to amend the 1998 Rome=
 Statute
of the International Criminal Court to include ecocide as a fifth crime
against peace reveals the complexity of international law as a mechanism
for advancing justice in the 21st century. Over more than four decades,
roughly in parallel with modern environmental movement, the ecocide
movement has shifted from a loosely defined aspiration to a concrete,
actionable proposal. This trajectory mirrors the ongoing debates
surrounding the efficacy and interplay =E2=80=9Csoft=E2=80=9D and =E2=80=9C=
hard=E2=80=9D law. A growing
ecological consciousness beginning in the 1960s spurred enactment of
foundational national environmental laws and regulations in the developed
nations. These, in turn, catalyzed similar actions in many developing
nations. New laws have strengthened the capacity and of civil society and
citizen pressure to confront intensifying transnational ecological crises.
Environmentalism has gradually shifted from a concern of
a few to recognition among the multitudes that ecological stewardship is
not a luxury but a matter of human survival.

With increasing urgency, this evolving ecological ethos paved the way for
dozens of agreements to address transboundary ecological threats, including
ozone depletion, export of hazardous materials, and climate disruption.
These, in turn, strengthened the resolve of the UN and other multinational
entities to design advance global solutions to such threats. The landmark
1987 Brundtland Report, the 1992 Rio Declaration, and the 2000 Earth
Charter are examples of emergent norms- and principles-based soft law that
influence, and are influenced by, rules- and enforcement=E2=80=93based hard=
 law.
The Great Transition (GT) framework may be viewed through lens of soft law.
Rooted in the concept of wholeness expressed as individual well-being,
societal solidarity, and planetary ecological resilience, GT=E2=80=99s norm=
ative
framework like its predecessors seeks to inform how scholars, policymakers,
and citizens perceive the possibilities for a better world.

At any moment, the relationship between hard and soft law may be
complementary or antagonistic. The lesson of the last few decades is that
the soft-hard distinction is a false dichotomy. In fact, the two fall along
a dynamic spectrum, differentiated more by the degree of obligation,
precision, and delegation to independent third-party adjudicators than by
intention or aspiration. In the real world, hard law at times hardens soft
law, and vice versa. Wijdekop=E2=80=99s observation regarding genocide, one=
 of the
four crimes embodied in the Rome Statute, is telling in this context. Even
in the face of uneven ICC enforcement, the codification of genocide as an
international crime against peace has sharpened awareness of the issues in
both the public consciousness and mass media.

In Wijdekop=E2=80=99s analysis, we see ecocide aligned with this playbook. =
As the
relentless destruction of the biosphere continues apace, the urgency of
global action intensifies. It is not a case of soft versus hard law=E2=80=
=94both
have a critical role to play. The task ahead is to strengthen both
approaches simultaneously such that the timing, robustness, and
enforceability of future actions rise to the level of the global threat.

Knotty questions remain. Should ecocide be judged on the basis of intent to
damage (e.g., defoliation or water poisoning by a warring party) or a
byproduct (e.g., the irreversible loss of biodiversity occasioned by
corporate clear-cutting of rainforests for palm oil and soybean
production)? As a witness to the tragedy of ecological destruction, we can
say with certainty that Earth is agnostic on the question of intentionality
or byproduct. Destruction is destruction.

Absent a truly global governance mechanism, can nation-state=E2=80=93driven
multilateral accords, replete with self-interest and power imbalances, rise
to the challenge of convergent threats that leave little time for concerted
action? And how effective can the law be in the face of powerful economic
interests driven by extraction, accumulation, and limitless growth? Is the
=E2=80=9Ccomplementary principle=E2=80=9D Wijdekop references=E2=80=94where=
by the International
Criminal Court would intervene in ecocide cases on when states fail to do
so=E2=80=94a recipe for decades of delay at a time when global ecological
transgressions demand immediate and forceful attention?

The flaws, promise, and ultimate indispensability of a global action in the
face of ecocide and other crimes against peace was recently brought to my
doorstop via the personal experience of a close friend. During the Balkan
conflict from 1991=E2=80=931995, she served as volunteer in a humanitarian =
effort
to protect children from the ravages of a vicious conflict. During her
service, she personally experienced the horrors of the war, including
crimes orchestrated by Serb leader Radovan Karadzic. An initial indictment
of Karadzic in 1995 was followed by his arrest in 2008 based on indictments
on five counts of crimes against humanity (e.g., extermination, murder, and
deportations) and four counts of violations of the laws or customs of war
(e.g., murder, terror, and unlawful attacks on civilians). A trial that
began in October 2009 involved 499 trial days, 337 prosecution witnesses
337, 6671 prosecution exhibits, and 248 defense witnesses. A guilty verdict
in March 2016 included genocide,
extermination, and murder, and a 40 year imprisonment was reduced to 28
years after taking into account Karadzic=E2=80=99s prior accumulated time i=
n
detention. Was justice served? For my friend, who has experienced 20 years
of trauma since her service, the answer I suspect is =E2=80=9Cno=E2=80=94an=
d never can be.=E2=80=9D
The havoc wrought by Karadzic is indelibly etched in her psyche and those
of thousands of others subjected to the atrocities of Balkan conflict.

What does the duration, complexity, outcome of this case imply for the
ecocide movement? Even in the case of the most egregious violations of the
Rome Statute, a decade elapsed between indictment and verdict. If ecocide
were to become a new crime against peace, its capacity to deter acts of
ecocide and to hold accountable those who commit them would be severely
curtailed if years of litigation and immense financial resources were
required to adjudicate each case. But, based on the historical record,
formalizing ecocide as a crime against peace would, as in the case of
genocide, help infuse the concept in continuing public discourse
surrounding a new global ethos essential to achieving a livable world.

Justice in a planetary civilization is, and will remain, a work in
progress. Ecocide is poised to play a vital role in amplifying the voice of
future generations who will live with consequences of near-term actions=E2=
=80=94and
inactions=E2=80=94of government, business, civil society, and citizens. On =
that
basis alone, legal protection of Earth merits the hard work that lie ahead
to both enact and enforce the ecocide amendment to the Rome Statute.

Allen White

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Original Message
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 Transition Network [mailto:gtnetwork at greattransition.org]
Sent: Friday, July 01, 2016 11:17 AM
 White
 Ecocide (GTN Discussion)