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International ecocide law could criminalise Reef destruction



Last year I sat in the offices of one of the judges of the International Criminal Court and, with NGOs, we spoke about the possibility of ecocide law becoming an international crime against humanity.

Cororporate and politician act coy unde scrutiny over environmental damage. Cartoon by Chris JohnstonAn international law against ecocide at its simplest is the criminalisation of mass damage and destruction of the environment resulting from human action. At that time I heard that the obstacles were not legal, but political, and all it would take was courage and persistence.

Last week the International Criminal Court announced it will potentially hold corporate executives and governments legally responsible for environmental crimes.

This widening of the mandate of the ICC was triggered by a Cambodian case about land grabbing and forced evictions. For land grabbing and environmental destruction in peacetime to be considered by the ICC is a major indication of the legal shift into recognising the violence done to earth and the relationship between humanity and its habitat.

Several important things emerge from this announcement. The first is the potential end of corporate impunity from criminal sanctions for their destructive actions in nations that do not have the legal or governance capacities to hold them accountable.

Corporate responsibility takes on a whole new light and I imagine board rooms everywhere are urgently seeking legal advice about the potential ramifications, not only for their companies, but themselves personally because the criminal jurisdiction is individualised.

Unlike administrative regimes and civil jurisdictions it's much harder for those at the head of corporations or legal entities to hide behind the corporate veil. If those companies perceived to be engaged in land grabbing or environmental destruction are not seeking legal advice they are either stupid or naïve. Risk assessment of directors' duties could get even heavier in the future. 

In reality many will remain immune due to the limited power of the ICC in enforcement and for those states, like the USA, who are not signatories to the Rome Statute, the founding document of the ICC. However I believe this will shift the norms of corporate culture immensely, especially as much corporate involvement in environmental crime is trans-national and not settled in one sole jurisdiction. In the context of criminal law where imprisonment is an option, the precautionary principle becomes a lot more intimate. Even the prospect of being put before an international criminal court will shift behaviours and corporate activities.


"What may seem immune from criminal prosecution today, may not be tomorrow. Scientific knowledge and awareness is not lacking in terms of  being able to trace harm to its causes and those who permitted those causes to occur."


Secondly, governments that have signed the Rome Statute, such as Australia who was a great supporter at the beginning of the ICC, can no longer presume that the ICC deals only with third world nations with dodgy governance structures, dictators and warlike conditions. This announcement should send a shiver down governments spines everywhere that their actions and decisions concerning environmental destruction may have severe consequences for their own future, not just the planet's.

I think of the current ecological concerns for the Great Barrier Reef. What may seem immune from criminal prosecution today, may not be tomorrow. Scientific knowledge and awareness is not lacking in terms of  being able to trace harm to its causes and those who permitted those causes to occur. This also raises questions about climate change liability for governments, a question already being played out in courts today. In the future we may witness an environmental version of Eichmann in Jerusalem, the famous book by Hannah Arendt that covered the prosecution of a Nazi war criminal who proclaimed he was just doing what he was told. It didn't impress the court nor Arendt and is a precedent many corporate and government leaders might want to look at.

Thirdly this statement from the ICC is part of a long journey from legal scholars, advocates, scientists, civil society organisations and some governments to include crimes against the environment as jus cogens, fundamental overriding principles of international law from which no derogation is ever permitted. These include crimes so reprehensible that the international community cannot risk their repetition, such as genocide and slavery. It's becoming explicitly clear that the terrorising and destruction of the environmental commons in peacetime is now equivalent to warlike conditions in parts of the world. This announcement for those advocating and working on there being a fifth crime against peace, such as a law against ecocide, brings hope.

The battle has been long and resisted for too many years. Many brave thinkers and activists from the scientist Arthur Galston after the Vietnam War, the renowned international legal scholar Richard Falk to the activism of Polly Higgins today have worked hard and long for the recognition of mass environentmal damage and descrutcion as consistuting a grave criminal act. What this announcement confirms is that law is moving towards recognising that violence against the environment, and the connection between inhabitants and their environment, needs to be protected by international law at the highest level.

The ICC announcement, although not binding and still not officially included in the Rome Statute, is jurisprudentially significant and as a lawyer I want to sing from the rooftops. We were told it would be a long journey, and perhaps would only emerge at the point of some global catastrophe when suddenly everyone was in danger. But here we are a year later and the ICC is responding to the suffering and legal developments around the globe that reasonably articulate that environmental destruction is a criminal act that demands a legal response.


Bronwyn LayDr Bronwyn Lay worked as a lawyer in Melbourne before moving to France where she now works as an legal consultant for international NGOs. She is the creative director of the Dirt Foundation and her book Juris Materiarum: Empires of Earth, Soil, and Dirt was published this year.

Topic tags: Bronwyn Lay, ecocide, Great Barrier Reef



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Existing comments

Great article, thanks

Georgie | 26 September 2016  

Good to hear this good and so necessary good news'Thank you What this announcement confirms is that law is moving towards recognising that violence against the environment, and the connection between inhabitants and their environment, needs to be protected by international law at the highest level.

Michele Madigan | 26 September 2016  

"This also raises questions about climate change liability for governments...." Can it be proved beyond a reasonable doubt (the standard of proof for criminal liability) and not merely on the balance of probabilities (the burden of proof for civil liability) that anthropogenic climate change is 'settled science'? Has this claim ever been tested in a court of law? What if a court decides to split the difference and say that while the paper evidence seems to favour anthropogeny as the cause of climate change, nevertheless, because interpretation of statistics is an art, reasonable people may subscribe to some kind of climate change scepticism? Will making the ICC an arbiter of values more philosophical than legal lead it down the path of the US Supreme Court where every appointment becomes highly politicised? Is the ICC even competent to decide these kinds of issues as opposed to the straight-forward criminal law question of whether X is guilty of these thousands of deaths but not others?

Roy Chen Yee | 28 September 2016  

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