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Is now the time to criminalize ecocide?

January 19, 2011

If you haven’t heard of “ecocide”, I suspect you will in the coming years.  That’s because British lawyer, Polly Higgins, has made it her life mission to have the UN recognize ecocide as a 5th Crime Against Peace (alongside genocide, Crimes Against Humanity, War Crimes and Crimes of Aggression).  Higgins proposes the following definition of ecocide:

The extensive destruction, damage to 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 severely diminished.

Higgins has been speaking and writing extensively, including publishing a book last July called Eradicating Ecocide.  She’s also launched a website called This is Ecocide.  My colleague, Ana Simeon, at the Sierra Club of BC wrote a review of the book some time back and then passed the book on for me to look at – thanks Ana. 

Higgins is generating a lot of attention in the UK and internationally.  Ecuadorean President, Evo Morales, recently criticized the lack of progress in the Climate talks in Cancun, asserting that a failure to tackle runaway climate change amounted to ecocide.

Bolivia's Morales, addressing the full conference, cited families already being deprived of water because of warming and drought, and islanders facing the loss of homes from seas rising from global warming.  If governments move away from strong, mandatory emissions reductions, "then we will be responsible for `ecocide,' which is equivalent to genocide because this would be an affront to mankind as a whole," he said.

Thoughts on Ecocide

Higgins is not the first to describe environmental destruction as a crime.  Environmental icon David Suzuki got lambasted in the Canadian press for suggesting that politicians who failed to address climate change should be jailed for an intergenerational crime.  Higgins takes a different tact, in that the criminalization of environmental destruction is the entire point of her campaign, and as a lawyer she is well equipped to argue the point. 

I have little doubt that as the environmental crisis becomes more severe there will be similar calls, and that, eventually, individuals and corporations will face criminal charges for large-scale environmental destruction that had been considered legal when it occurred. (Here’s West Coast’s take on the legal issues raised by incorporating ecocide into Canadian criminal law). 

But Higgins believes that now is the time to introduce the idea.  She characterizes it as a “trim tab” – a tiny rudder on a boat designed to turn the whole boat quickly with little effort.  Recognizing ecocide as a crime, Higgins believes, would effectively ban large-scale environmental destruction, forcing industries to adopt environmentally benign approaches. 

The idea has some attraction for those of us who want to see dramatic changes in how our environment is treated.  There are a number of important questions about how the crime would be structured, many of which Higgins attempts to answer in her book.  But the real question for me is whether using ecocide language accomplishes anything.  The reality is that until there is widespread political agreement that this really is criminal behaviour, the law won’t be amended to recognize ecocide and no one will be charged with ecocide.  So, in the short-term:

  • does using the language of ecocide change anyone’s mind, making it more likely that fundamental change will occur, or
  • does it merely polarize public debate, reducing the space for rationale public discussion on environmental issues? 

A recent article by Higgins in the Guardian demonstrates the potential for ecocide-language to be polarizing.  Higgins compares the actions of modern-day environmental protesters attempting to block the operation of a coal-fired plant to the actions of human rights protesters in Nazi Germany before the crime of genocide had been recognized.  Higgins focuses in on the moment when people recognize that something is fundamentally wrong, but before that action is recognized as a crime.  For genocide this moment occurred (so she argues) in 1943 when Sophie Scholl was executed for leafleting against Nazi Germany and the Holocaust.  For ecocide, says Higgins, this moment is occurring now. 

Whatever the intellectual validity of the argument, the comments reveal that the vast majority of her readers did not get the analogy, and on its face the attempt to link Ecocide to the emotionally charged issue of Nazi Germany seems to have turned them off the concept altogether. 

But at the same time, the concept of ecocide is attractive precisely because it is so uncompromising.  Even if Higgins is unsuccessful in having the UN, or any country, recognize ecocide as a crime, raising the question of whether it should be shifts the boundaries of public debate, and creates space to talk about whether existing environmental crimes should be rigorously enforced. 

In addition, the conflict intrinsic in accusations of criminal behaviour is ready-made for media coverage.  And as a result Higgins has been generating a lot of it. 

Personally I think that there’s little doubt that Higgins is a valuable voice in the public discourse about environmental law.  What do you think?  Is the idea of Ecocide a meaningful addition to the environmental debate?  What would it take to get individuals and corporations charged with ecocide?  How do we keep the dialogue accessible to people turned off by accusations of criminal behaviour?   

Andrewblogphoto.jpgBy Andrew Gage, Staff Lawyer

Related Blog Post: Ecocide in Canada