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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 po=
st-WWII era. Such instruments cover a broad spectrum of global issues rangi=
ng 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, t=
he persistence of geopolitical, ethnic, human rights, and ecological crises=
 attest to the limitations of law in dealing with perils of an interdepende=
nt world. International law is a necessary but certainly not sufficient con=
dition to ensuring a thriving planetary future.<br>
<br>
Femke Wijdekop=E2=80=99s description of the movement to amend the <a href=
=3D"tel:1998" value=3D"+661998">1998</a> Rome Statute of the International =
Criminal Court to include ecocide as a fifth crime against peace reveals th=
e complexity of international law as a mechanism for advancing justice in t=
he 21st century. Over more than four decades, roughly in parallel with mode=
rn environmental movement, the ecocide movement has shifted from a loosely =
defined aspiration to a concrete, actionable proposal. This trajectory mirr=
ors the ongoing debates surrounding the efficacy and interplay =E2=80=9Csof=
t=E2=80=9D and =E2=80=9Chard=E2=80=9D law. A growing ecological consciousne=
ss beginning in the 1960s spurred enactment of foundational national enviro=
nmental laws and regulations in the developed nations. These, in turn, cata=
lyzed similar actions in many developing nations. New laws have strengthene=
d the capacity and of civil society and citizen pressure to confront intens=
ifying transnational ecological crises. Environmentalism has gradually shif=
ted from a concern of<br>
a few to recognition among the multitudes that ecological stewardship is no=
t a luxury but a matter of human survival.<br>
<br>
With increasing urgency, this evolving ecological ethos paved the way for d=
ozens of agreements to address transboundary ecological threats, including =
ozone depletion, export of hazardous materials, and climate disruption. The=
se, in turn, strengthened the resolve of the UN and other multinational ent=
ities to design advance global solutions to such threats. The landmark <a h=
ref=3D"tel:1987" value=3D"+661987">1987</a> Brundtland Report, the <a href=
=3D"tel:1992" value=3D"+661992">1992</a> Rio Declaration, and the 2000 Eart=
h Charter are examples of emergent norms- and principles-based soft law tha=
t influence, and are influenced by, rules- and enforcement=E2=80=93based ha=
rd law. The Great Transition (GT) framework may be viewed through lens of s=
oft law. Rooted in the concept of wholeness expressed as individual well-be=
ing, societal solidarity, and planetary ecological resilience, GT=E2=80=99s=
 normative framework like its predecessors seeks to inform how scholars, po=
licymakers, and citizens perceive the possibilities for a better world.<br>
<br>
At any moment, the relationship between hard and soft law may be complement=
ary or antagonistic. The lesson of the last few decades is that the soft-ha=
rd distinction is a false dichotomy. In fact, the two fall along a dynamic =
spectrum, differentiated more by the degree of obligation, precision, and d=
elegation to independent third-party adjudicators than by intention or aspi=
ration. In the real world, hard law at times hardens soft law, and vice ver=
sa. Wijdekop=E2=80=99s observation regarding genocide, one of the four crim=
es embodied in the Rome Statute, is telling in this context. Even in the fa=
ce of uneven ICC enforcement, the codification of genocide as an internatio=
nal crime against peace has sharpened awareness of the issues in both the p=
ublic consciousness and mass media.<br>
<br>
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 bo=
th approaches simultaneously such that the timing, robustness, and enforcea=
bility of future actions rise to the level of the global threat.<br>
<br>
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 bypr=
oduct (e.g., the irreversible loss of biodiversity occasioned by corporate =
clear-cutting of rainforests for palm oil and soybean production)? As a wit=
ness to the tragedy of ecological destruction, we can say with certainty th=
at Earth is agnostic on the question of intentionality or byproduct. Destru=
ction is destruction.<br>
<br>
Absent a truly global governance mechanism, can nation-state=E2=80=93driven=
 multilateral accords, replete with self-interest and power imbalances, ris=
e to the challenge of convergent threats that leave little time for concert=
ed action? And how effective can the law be in the face of powerful economi=
c interests driven by extraction, accumulation, and limitless growth? Is th=
e =E2=80=9Ccomplementary principle=E2=80=9D Wijdekop references=E2=80=94whe=
reby the International Criminal Court would intervene in ecocide cases on w=
hen states fail to do so=E2=80=94a recipe for decades of delay at a time wh=
en global ecological transgressions demand immediate and forceful attention=
?<br>
<br>
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 c=
onflict from <a href=3D"tel:1991" value=3D"+661991">1991</a>=E2=80=93<a hre=
f=3D"tel:1995" value=3D"+661995">1995</a>, she served as volunteer in a hum=
anitarian effort to protect children from the ravages of a vicious conflict=
. During her service, she personally experienced the horrors of the war, in=
cluding crimes orchestrated by Serb leader Radovan Karadzic. An initial ind=
ictment of Karadzic in <a href=3D"tel:1995" value=3D"+661995">1995</a> was =
followed by his arrest in 2008 based on indictments on five counts of crime=
s 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 invo=
lved 499 trial days, 337 prosecution witnesses 337, 6671 prosecution exhibi=
ts, and 248 defense witnesses. A guilty verdict in March 2016 included geno=
cide,<br>
extermination, and murder, and a 40 year imprisonment was reduced to 28 yea=
rs after taking into account Karadzic=E2=80=99s prior accumulated time in d=
etention. Was justice served? For my friend, who has experienced 20 years o=
f trauma since her service, the answer I suspect is =E2=80=9Cno=E2=80=94and=
 never can be.=E2=80=9D The havoc wrought by Karadzic is indelibly etched i=
n her psyche and those of thousands of others subjected to the atrocities o=
f Balkan conflict.<br>
<br>
What does the duration, complexity, outcome of this case imply for the ecoc=
ide 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 i=
f years of litigation and immense financial resources were required to adju=
dicate 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 esse=
ntial to achieving a livable world.<br>
<br>
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=94an=
d inactions=E2=80=94of government, business, civil society, and citizens. O=
n 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.=
<br>
<br>
Allen White<br>
<br>
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Original Message<br>
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=C2=A0Transition Network [mailto:<a href=3D"mailto:gtnetwork at greattransitio=
n.org">gtnetwork at greattransition.org</a>]<br>
Sent: Friday, July 01, 2016 11:17 AM<br>
=C2=A0White<br>
=C2=A0Ecocide (GTN Discussion)<br>
<br>