Proposed amendment to the Rome Statute

Ecocide is the extensive damage to, destruction of or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been or will be severely diminished.

The International Law Commission (ILC) is the UN body “mandated to promote the progressive development of international law and its codification”. In 2010, the proposal to amend the Rome Statute to include an international crime of Ecocide was submitted by Polly Higgins into the ILC. The submission was published as Chapters 5 and 6 in her first book, Eradicating Ecocide.[1]

The purpose for creating the offence of Ecocide as the 5th international Crime Against Peace is to put in place at the very top level an international law. 122 nations are (as of 2014) signatories of the Rome Statute. International Crime (which is codified in the Rome Statute) applies not only to the signatory states. If and when a person commits a Crime Against Peace, the International Criminal Court has powers to intervene in certain circumstances, even if the person or state involved is a non-signatory. The Rome Statute is one of the most powerful documents in the world, assigning ‘the most serious crimes of concern to the international community as a whole’[2] over and above all other laws. In addition, primary legislation to be used at a national level has also been drafted by Polly Higgins, called the Ecocide Act (see Appendix 2). Section 6 of the Ecocide Act sets out the explicit right that is given recognition by the crime of Ecocide:

The right to life is a universal right and where a person, company, organisation, partnership, or any other legal entity causes extensive damage to, destruction of or loss of human and or non-human life of the inhabitants of a territory … is guilty of the crime of Ecocide.

Crimes that already exist within the jurisdiction of the International Criminal Court under Article 5 of the Rome Statute are known collectively as Crime Against Peace. They are:

Article 5(1)

The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes
  1. The Crime of Genocide
  2. Crimes Against Humanity
  3. War Crimes
  4. The Crime of Aggression
To be added
  1. The Crime of Ecocide

The inclusion of Ecocide law as international law prohibits mass damage and destruction of the Earth and, as defined above, creates a legal duty of care for all inhabitants that have been or are at risk of being significantly harmed due to Ecocide. The duty of care applies to prevent, prohibit and pre-empt both human-caused Ecocide and natural catastrophes. Where Ecocide occurs as a crime, remedy can be sought through national courts and the International Criminal Court (ICC) or a similar body. Proposals for a new court exist, such as The Brussels Charter[3] and the Coalition for the International Court for the Environment[4]. Ecocide law has both criminal and civil law application.

A law of Ecocide

  • prevents the risk of and/or actual extensive damage to, destruction of or loss of ecosystem(s);
  • prohibits decisions that result in extensive damage to or destruction of or loss of ecosystem(s);
  • pre-empts decision-making of a political, financial and business nature that may lead to significant harm.

Ecocide law duty of care

  • superior responsibility provision: an international and transboundary duty of care on any person or persons who exercises a position of superior responsibility, without exemption, in either private or public capacity to prevent the risk of and/or actual extensive damage to or destruction of or loss of ecosystem(s).
  • business provision: an international and transboundary duty of care on CEOs and directors of a business and/or any person who exercises rights over a given territory to ensure ecocide does not occur.
  • political provision: an international and transboundary duty of care on governmental actors, specifically Heads of State and Ministers with environment/energy/climate change portfolios, to ensure ecocide does not occur and to provide emergency assistance before, during and after to other territories at risk or adversely affected by ecocide.
  • financial provision: an international and transboundary duty of care on financiers, investors, CEOs and directors of any banking and investment institutions who exercises a position of superior responsibility, to ensure ecocide is not financed.
  • lobbying provision: an international and transboundary duty of care on any agency purporting to lobby on behalf of any of the above, to ensure ecocide is not supported.

A Crime of Ecocide

  • prohibits damage, destruction and loss of ecosystems over a certain size, duration or impact;
  • creates consequence based law (prohibition of hazard), not just risk abatement;
  • sets in place a mandatory provision of shared nation responsibility for supporting aid and assistance to ecocide-affected territories;
  • halts the flow of daily destruction that occurs during peace-time at a level that is already defined as criminal activity in war-time;
  • shifts the burden of responsibility to those in a position of ‘superior responsibility’;
  • imposes an over-riding pre-emptive legal duty on all corporations, banks and investment to prevent business from profiteering out of activity that causes mass damage, destruction or loss of ecosystems;
  • imposes an over-riding primary legal obligation on all governments to prohibit investment and policy that causes or supports ecocide.

Trusteeship

A law of Ecocide also imputes a legal duty of care in the event of natural catastrophe (e.g. rising sea-levels, droughts, earthquakes). The United Nations Trusteeship Council’s purpose (as one of the founding pillars of the UN Charter) was to assist territories that were unable to self-govern; it is proposed that the Trusteeship Council re-open it’s doors and be put to use again to assist non-self governing territories that have been or are at risk of being harmed by Ecocide[5]. It can be used to assist territories suffering from Ecological Ecocide as well as Cultural Ecocide.

By re-opening the UN Trusteeship Council (closed in 1994) chamber, Member states have a ready-made forum in which to determine what support and aid to put in place for non-self governing territories facing Ecocide.

  • Damage to or destruction of or loss of ecosystem(s) leads to:-
  • crimes against humanity, nature and future generations;
  • conflict;
  • diminution in quality of life for all inhabitants in the territory affected;
  • diminution of health and well being for all inhabitants;
  • catastrophic disasters leading to food loss, poverty, water pollution and shortages, unnatural climate change, deforestation and more.
  • Ecocide law creates an international and transboundary duty of care which is preventative, pre-emptive and prohibitive in nature (‘First do no harm’ principle)
  • Ecocide law breaks cycles of harm.

Ecocide Act

In 2010, after Polly Higgins submitted the proposed amendment into the United Nations Law Commission, she and a group of lawyers co-drafted the Ecocide Act in draft form, which was then used in the UK Supreme Court, where the law was tested in a mock trial. It proved to be a success. You can read the transcripts, download the documents, watch excerpts and the full trial online at eradicatingecocide.com/overview/mock-trial. The Ecocide Act was then mirrored in the Ecocide Directive submitted as a European Citizens Initiative by endecocide.eu. The Ecocide Act included here (the UK version) can be used by any country across the world and is designed to be open-source so that all nations can easily implement it.

Background

In 2010, when the draft law of Ecocide and proposed the Rome Statute amendment was submitted, it was unknown then that an international crime of Ecocide had in fact been part of the drafting process for the Rome Statue between 1985 and 1996. Dr Damien Short of University of London’s Human Rights Consortium at the School of Advanced Legal Studies undertook research at her request, which led to a paper trail of primary documentary evidence spanning over 40 years. You can read a summary of the extensive documentation in the research paper: Ecocide is the Missing 5th Crime Against Peace[6]. Despite the fact that many nations supported Ecocide crime, no reason was given for it’s removal from the final stages of the draft Rome Statute in 1996. Many people – UN Special Rapporteurs, lawyers, Member State representatives and other related organizations – had supported a law of Ecocide. Somewhere along the way the one document that could have changed the history of humanity by prohibiting mass damage and destruction was reduced to a limited provision in war-time only. What had started life as the Code of Offences Against the Peace and Security of Mankind to codify “crimes of the most serious concern to humankind” had been compromised. It was renamed the Rome Statute and Ecocide, the 5th Crime Against Peace, was removed.

Ecocide law proposals date back to 1972. Olof Palme, the then Prime Minister of Sweden, in his opening speech at the Stockholm Conference for the Human Environment, spoke explicitly of the Vietnam war as an “Ecocide”. The Stockholm Conference focused international attention on environmental issues for the first time, especially those relating to environmental degradation and transboundary pollution. Others, including Indira Gandhi from India and the leader of the Chinese delegation Tang Ke, also denounced the war on human and environmental terms. They too called for Ecocide to be an international crime. A Working Group on Crimes Against the Environment was formed at that conference, and a draft Ecocide Convention was submitted into the United Nations in 1973. Richard Falk, author and later a UN Rapporteur, wished to make it explicit that cycles of harm can be created by humanity with and without intent, during peace-time as well as war-time: “man has consciously and unconsciously inflicted irreparable damage to the environment in times of war and peace”. For over 40 years we have had the means to bring Ecocide to an end. It was a moment in time that seeded a truly great idea: an idea whose time has come.

For more information see eradicatingecocide.com

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[1] Polly Higgins, Eradicating Ecocide: laws and governance to prevent the destruction of our planet, 2010, pp. 61- 92.

[2] Preamble, Rome Statute.

[3] See iecc-tpie.org, who are calling for an International Criminal Court for the Environment.

[4] See icecoalition.com and see also the International Court for the Environment Foundation.

[5] See Chapter 6, Polly Higgins, Eradicating Ecocide: laws and governance to prevent the destruction of our planet, 2010, pp.72 – 92.

[6] http://www.sas.ac.uk/node/1033, ‘Ecocide is the missing 5th Crime Against Peace’ First published in 2012 and updated in July 2013. See also sas.ac.uk/hrc/projects/ecocide-project