Jonny Gordon-Farleigh: Your book Eradicating Ecocide sets out not only to expose corporate and political practices that destroy the planet but to also propose new laws that might work to prevent this relentless exploitation and devastation. Could you explain what ecocide means and how this might be achieved?
Polly Higgins: The main thing I am doing in my work is giving the word ‘ecocide’ a legal definition, as the word itself has actually been around since the 1940s. The definition I give is “the extensive damage or loss of ecosystems” and within this there are two definitions of ecosystems.
But what is important here is that by giving a legal definition, by making it an international crime, we create an accountability mechanism. This key mechanism is for accountability at the top end. What we are dealing with here is corporate crime and, you could say, governmental crime. This is not always just about the actions we take that can cause significant harm but also what we fail to do — how we (specifically those at the top end of decision-making) turn a blind eye or allow an activity to continue when we should step in and stop it from taking place.
And this is extremely important. Let’s take the example of fracking and all forms of unconventional gas exploration and drilling. Fracking, cumulatively, is an ecocide. As the evidence comes to bear in places like the US and Australia, it shows that fracking, shale gas and coal bed methane processes all cause extensive and damage and loss of ecosystems. But at the moment we can’t stop these practices because it is current law that a CEO and their directors put the interests of their shareholders first, which is to say, put money first. So any health and well-being provision for people and planet just doesn’t exist — it’s not there. More importantly, it’s not the first priority or primary legal duty of care.
So ecocide is what an overriding, umbrella law would look like. International crime is a super-law that overrides everything else and puts in place a fiduciary of care. This means that companies, governments and financial institutions will have to consider when they invest, commit to a project or sign-off an activity, whether it’s likely to cause significant ecological harm, and if it does, they will be held to account.
This is very important because we know that causing mass damage and destruction to the earth just doesn’t work. If we destroy the very earth we walk on, we destroy our ability to live in peaceful enjoyment. If we look at fracking and all the other unconventional gas practices it provides a very useful example of mass destruction to the environment and for what? Twenty years’ worth of energy, probably less than that. Then we’re left with huge devastation afterwards. So we know this doesn’t work — short-term interest and monetary gain by the few, where a culture of greed is put above the well-being of people and planet. The law of ecocide addresses this and fundamentally flips it by making people and planet the number one priority over profit. I must say here that I’m not anti-profit. I am very pro-profit so long as it flows from innovation in the other direction. Instead of it being extracted from dangerous industrial activity, it should come from constructive industrial activities. This is a process of moving away from harm towards harmony, by law, in terms of where we take our business capacities and interests.
JGF: The most consistent outcomes of environmental summits and conferences since Rio-92 — along with routine disappointment — is that they nearly always only insist on “voluntary arrangements.” Why have these environmental summits only produced such toothless and weak commitments and lacked anything resembling statutory controls?
PH: The problem here is the spectrum of responses available to those dealing with mass ecological damage. It starts from voluntary agreements, to what I call ‘catch-me-if-you-can’ fines, to global treaties and protocols, conventions that have no legal teeth, to creating new markets that attempt to make money out of a problem (such as the clean development mechanism and carbon markets — literally making money out of hot air). None of this works because it doesn’t actually have an accountability mechanism that attaches itself to individuals who make the decisions at the top. This is a principle that is well understood in international criminal law and it’s called the principle of ‘superior responsibility’. This is basically the recognition that crimes are committed by human beings and it’s those at the top who have to be held to account for decisions made during their watch. So this is about attaching responsibility; there is no diplomatic immunity available. This principle was recognised by the Nuremberg Trials where they enunciated the whole concept of superior responsibility, also known as the ‘command and control rule’: Those at the top who make the rules are the ones who shall be held to account under a law of Ecocide.
A law of Ecocide is the inevitable next step, as we’ve seen that the spectrum of responses has failed and, if anything, has put us in a far worse situation. The next step is imputing a legal duty of care and using the accountability mechanism through both an international and national criminal courts of law.
JGF: Your work on ecocide is a response to the failures of existing laws, but also attaches itself to crimes against peace. Does ecocide build on existing laws?
PH: I say existing laws don’t work. The big challenge here is not to tweak or slightly amend existing laws but taking the quantum leap and putting in place a very brave proposition to criminalise mass destruction of ecosystems. A lot of people say to me, “What? Is this not a crime already? Surely it must be?” Even a 7-year-old child can understand that it’s wrong to destroy the earth and that these practices should be recognised as crimes.
But amazingly ecocide is not a crime yet, though, back in the mid ‘90s it was nearly made a crime. Many countries supported it but at the last minute it was withdrawn as the result of corporate lobbying behind closed doors. You didn’t know about it. I didn’t know it — it wasn’t visible to the public. This time around I am working to make it very visible so that it doesn’t get sidelined and hijacked as it has been in the past. My current work is putting back in place a missing crime that should have been there all along. Just imagine what our world would be like if Ecocide had been passed into legislation as international crime in the 1990s: We wouldn’t be debating about how to make the transition to a green economy, it would be flourishing. We wouldn’t be debating whether fracking is viable, we would have moved on to a completely different economy. We would also be much further along the road towards what my friend, Charles Eisenstein, calls “a more beautiful world that our hearts knows is possible.”