Ecocide: the push to prosecute climate crimes

Green MP Caroline Lucas has accused Michael Gove of “a climate crime against humanity” after he gave the go-ahead for the UK’s first new coal mine in three decades.

The mine, at Whitehaven in Cumbria, will “produce an estimated 400,000 tonnes of greenhouse gas emissions a year”, said the Daily Mirror, “increasing the UK’s emissions by the equivalent of putting 200,000 cars on the road”.

Lucas said in The Guardian that Gove’s decision “sends a truly terrible message to global south countries and marks this decision as a climate crime against humanity”. She also decried the “staggering hypocrisy” of calling on other countries to phase out coal, just as the UK phases it back in again.

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Her language echoes that of campaigners trying to add “ecocide” as a fifth crime to the International Criminal Court (ICC)’s remit alongside genocide, crimes against humanity, war crimes and aggression (waging an illegal war). They describe ecocide as “wanton acts” that cause “severe” and “widespread or long-term damage” to the environment. But adoption of such a definition by member nations could “take years”, said Inside Climate News.

Where did the term ecocide originate from?

The word first came into public consciousness at a United Nations environmental conference in the 1970s, when the premier of Sweden used it to describe the environmental damage caused by the Vietnam War, Time reported. Over the decades, various ecocide statutes have been proposed but never came to pass.

In 2017, the late British barrister Polly Higgins put ecocide firmly on the map. Higgins began exploring how humans could create a legal duty of care for the earth and realised that criminalising environmental destruction was the best way forward. She joined forces with environmental activist Jojo Mehta and the pair launched Stop Ecocide, the global campaign to establish an ecocide law. In July last year, Greta Thunberg donated €100,000 to the cause.

“Currently there is no enforceable deterrent for the serious levels of destruction that are happening around the world,” Mehta told BBC Radio 4's Woman’s Hour in 2021. “We believe that creating a criminal law at the international level could have a really strong deterrent effect and, of course, [correct] the direction we appear to be heading in.”

What kind of crimes could be prosecuted under ecocide?

Practices that could be considered ecocide crimes include “industrial fishing with its deep-sea trawler practice of dredging the ocean floor which decimates ecosystems; oil spills – like the catastrophic Deepwater Horizon spill off Louisiana in 2010 which is still having impacts today; and the rampant plastic pollution which has invaded all corners of the world”, The Independent reported in 2020.

Ecocide could also encompass damaging, high-impact activities like fracking, air pollution, industrial livestock farming, tar sand extraction and “the pollution of soils, rivers and insect populations with industrial chemicals and radioactive contamination from nuclear plant leaks”, said the newspaper. Prince Harry and Meghan Markle even used the term when talking about the catastrophic bush-fires that ravaged parts of Australia at the end of 2019 and the beginning of 2020.

“In plain language”, wrote human rights lawyer and environmental justice advocate Steven Donziger for The Guardian, ecocide would outlaw the “deliberate destruction of the environment such that people die and ecosystems are destroyed” and “applies to private corporations and their executives in their personal capacities”.

This “personal exposure” will “significantly change the decision-making calculus of these executives in the planet’s favour”, he added.

An ecocide law could also be used to prosecute environmental crimes which fall outside national jurisdictions, something which would be “especially helpful in poorer countries where legal barriers make it difficult to hold foreign companies accountable”, Time said.

What issues does an ecocide law pose?

Drawing up a working definition of ecocide was described as a “very difficult balancing act” by Philippe Sands, a barrister and expert in international law who is co-chairing the panel of legal experts. “We are all contributors to climate change – does that make each of us international criminals?” he asked, when interviewed on Woman’s Hour.

The tricky part of enshrining the law will be ensuring that it does not punish ordinary citizens but rather the top-level decision-makers who are responsible for mass atrocities. “Many people might get behind an ecocide law that charges mega-corporations for polluting on a grand scale; it is less likely they would support a law that penalises anyone who destroys the environment in any way,” said Time.

There is also the risk that the highest polluting nations, including the US, China, Russia and India - none of which recognise the jurisdiction of the Court - might strive to “immunise” themselves from its rulings, said Inside Climate News.

Equally, it suggested, countries that have “contributed little to the world’s pollution crises” could be “reluctant to bind themselves to rules that top polluting countries evade”.

Who supports an ecocide law?

Increasing numbers of world leaders are coming out in support of a law that criminalises environmental damage. At a meeting with climate activists in summer 2020, French President Emmanuel Macron shared his ambition of enshrining the crime of ecocide in environmental law. “I think I was the first leader to use that term when the Amazon was burning,” he said. “I share the ambition… to ensure that this term is enshrined in international law [making leaders] accountable before the International Criminal Court.”

The Pacific Ocean state of Vanuatu, thought to be among the most vulnerable places on Earth to the effects of climate change, was the first country to publicly call for the consideration of an international crime of ecocide. Other global leaders in the debate include Luxembourg, Finland and Canada. The European Parliament’s ENVI (environmental) Committee has also backed “the recognition of ecocide in international law”.

In June 2022, Kenya’s cabinet secretary for the environment and forests, Keriako Tobiko, revealed a landmark legislation proposal which includes the “recognition of the right to nature and, most importantly, creation of the crime of 'ecocide’”.

The UK government, however, has been “a little reticent”, Mehta told Woman’s Hour.

At Cop27, Labour sought to capitalise on this reticence with the shadow foreign secretary David Lammy telling delegates: “The climate crisis is the greatest challenge the world faces, which is why while Rishi Sunak tries to dodge climate action, Labour will turn up by introducing Britain’s first ever Green Foreign Policy.”

Lammy added that Labour will use the UK’s diplomatic leverage to “push for climate action to become a fourth pillar of the UN, work to create a new international law of ecocide, and target development aid to support developing countries facing destruction as a result of the climate crisis”.