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Should ‘Ecocide’ Be a Crime?

Today, my colleague Michael Mansfield QC appears in a mock trial in the Supreme Court that considers the crime of ‘ecocide’. The project is the brainchild of lawyer Polly Higgins. Ecocide is defined as: ‘The extensive damage, destruction to or loss of ecosystems 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.’ To me, creating some type of crime like this seems a no-brainer, but I think making this a crime in any meaningful sense will be particularly difficult.

I suspect that if you asked most people in the abstract whether they thought ecocide should be a crime, most people would agree. Environmental damage is probably one of the biggest challenges to humanity. However, if you then considered how they behaved, either individually, or through their governments, then I think a different picture would emerge. Abstract support would not manifest itself in any practical steps towards implementing ecocide as a crime. The main obstacle, as I see it, is the trans-national nature of environmental damage and the different dynamics that this creates.

Creating a domestic crime within a particular state is relatively straightforward. The wrongdoing benefits the perpetrator, and harm is done to other members of that same state. Normally there are enforcement mechanisms that can be used, and few would have reason to object to their use. It is claimed that the previous UK government introduced 14,300 crimes during its term of office!

By contrast, the dynamics of environmental damage are different. Often, the benefits of the activity causing the damage accrue to a wide pool of individuals within a state. The harm may hardly affect the individuals from that state in that it falls mostly on those in other states. Effective enforcement mechanisms only really exist within states, which means that it makes little sense to use these mechanisms unless other states do the same.

It may come as a surprise to learn that a similar pattern exists for supposedly well established international crimes like torture and war crimes. Though the law is well established, only a tiny handful of cases are prosecuted each year, and these tend to be of individuals from politically insignificant countries. Even the work of the International Criminal Court has mainly been confined to Africa.

Part of the problem may be that our ethical views have a quite limited scope. We prefer to focus on the here and now. Practically, we think that creating a crime of ecocide would be a good idea, but it’s not really feasible. What we really should be doing is also thinking what circumstances we would need to bring about to make it feasible. This should help us to see the bigger picture and extend our ethical views accordingly.

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1 Comment on this post

  1. It strikes me as right as well, even despite the difficulties of writing and enforcing the law. The difficulties might simply be a natural check on the law, since almost anyone who turns on some electricity or uses an automobile is guilty, on some level, of ecocide.

    The reason is we could still find paradigmatic cases of people/corporations engaging in ecocide and these paradigmatic cases could be genuinely punished.

    Say BP and the disasterous oil spill in the Gulf of Mexico, or electronic "recyclers" that push the garbage off to third world nations that subsequently destroy the environment for the poorest of the citizenry. These groups could be held legally accountable in ways that they couldn't be today.

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