Consider two scenarios:
Scenario one involves a corporation that wants to extract oil from a territory where an indigenous population lives. When they refuse to leave their homeland, a government minister orders in the army, giving express orders to kill those who remain. The army kills 1000 people. The oil is extracted.
Scenario two involves the same corporation, the same oil, and the same people. Instead of ordering in the army, the minister simply approves the project. The oil leaks into the river system poisoning the fish and the people who drink the water. The same number of people die.
Only one scenario involves an international crime. How can this be?
The group Eradicating Ecocide has proposed amending the 1998 Rome Statute to include a fifth crime against peace -- the crime of ecocide.
Eradicating Ecocide's legal adviser Louise Kulbicki recently attended the World Congress on Justice, Governance and Law for Environmental Sustainability in Brazil, which brought together chief justices and attorneys general from around the world.
"Everybody recognized that there is a need to develop international environmental crimes," Kulbicki reports.
Ecocide, roughly defined, is "extensive damage to and loss of ecosystems of a given territory, whether by human agency or by other cause, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished."
Perpetrators would be liable to prosecution at the International Criminal Court if national courts were unable or unwilling to prosecute.
"It's a crime against nature, a crime against humanity, against future generations."
Ironically, destruction of environment is classed as a war crime, but this law does not apply in peacetime.
"It's a huge injustice and that legal loophole needs to be closed," Kulbicki affirms.
The only challenge now is to garner the political will to accept ecocide as an international crime.
The specifics are quite daunting. What about test explosives, mining, GM crops and greenhouse gas emissions?
States are more likely to agree on concrete examples such as unsustainable forestry, destruction of river systems, and mining projects.
Critics point to the inclusion of natural disasters being considered a crime, which appears not to make sense.
It only seems just that a CEO or government minister should face jail time for destroying ecosystems. As with other crimes against peace, all peoples have a vested interest in deterring and punishing ecocide.
As opposed to genocide, for which the prosecutor must prove "intent," ecocide would involve strict liability. This means that an individual is guilty if the consequences of their actions were "reasonably foreseeable," a common judicial practice.
In the first scenario above, a genocide has been committed, and the guilty parties are often punished. But the second scenario happens all too often, and with impunity for the perpetrators.
Kubicki says that "one country has been very interested in Eradicating Ecocide," and alluded to support within the United Nations and the private sector.
On practical grounds, one country would have to propose an amendment to the Rome Statute, and then 80 countries would have to ratify it before it becomes law.
Consider this: the Genocide Convention has only been signed and ratified by 142 countries (out of 193) and the Torture Convention has 147 parties. And there are only 120 parties to the International Criminal Court (ICC) -- the United States, Russia and China being the notable exceptions.
In much of international law, the world's powerful and recalcitrant states retain a sense of superiority and exceptionalism. As the old adage goes, the strong do what they can and the weak suffer what they must.
Whilst this is cause for lamentation, it is not cause for resignation.
Up until the last century, it was ludicrous to think that a head of state could face jail time for crimes committed while in office. But since the end of the Cold War hundreds of government ministers, military commanders and heads of state have been tried and jailed for international crimes.
Being a government official no longer implies impunity, and state borders no longer ensure immunity.
"Extraterritoriality" -- the legal concept meaning that crimes committed abroad are punishable at home -- would apply to ecocide, as it does with bribery and sex offenses.
Any individual involved with ecocide anywhere in the world would be liable to prosecution.
"This makes it difficult for other business not to comply with it. They simply comply with the rules so their bottom line remains intact," explains Eradicating Ecocide's Kulbicki.
Justice tends to gain its own momentum, and international laws such as genocide are strengthened with time and experience. Critics point to the Balkans and to Rwanda, but fail to acknowledge that genocide was prevented in Libya and the Ivory Coast because of direct threats of ICC prosecution.
At the Rio+20 Conference on Sustainable Development in Brazil, the lack of progress to protect the environment has been attributed to a lack of political will.
The UN works by consensus, making progress glacially slow. International law works by momentum. Recalcitrant states are not an insurmountable barrier to progress.
Will lawyers save the planet? As far as making ecocide an international crime, the case seems rather compelling.
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