Ecocide is the Missing 5th Crime against Peace: An Interview with Polly Higgins

“Ecocide is the missing 5th Crime against Peace”

– an interview with author and Earth’s Lawyer Polly Higgins by Femke Wijdekop, ABC’s former Consciousness buyer.  She interviewed Polly for AmsterdamFM, and we are very happy to be allowed to share it here with you.

Polly Higgins is an environmental activist, an international lawyer and the award-winning author of Eradicating Ecocide (eBook available here) and Earth is Our Business. In April 2010 she proposed to the United Nations to make Ecocide – the extensive damage to, destruction of or loss of ecosystems in a given territory – the 5th Crime Against Peace. Since that moment, she has been traveling around the world non-stop as “Earth’s Lawyer”, speaking at the International Criminal Court, the European Parliament, World Climate Summits and many other venues. On June 30th she visited Amsterdam to give an Earth Guardian Training organized by Rishis. Polly has also inspired the launch of the European Citizen’s Initiative to End Ecocide, which proposes to make Ecocide a crime in Europe and which needs 1 million signatures before 2014 in order to be tabled by the European Commission.

Polly and I talked on Skype and had a most inspiring conversation about the biggest challenge of our time, Ecocide, her own journey to become a spokeswoman for the rights of the Earth, and how each and everyone of us can be a ‘trim-tab’: a catalyst in the creation of a better world.

You can listen to the entire interview on our SoundCloud account, or via the player at the bottom of the interview.

Seven years ago something happened when you were representing a case at the Royal Courts of Justice in London that completely changed your life. What happened there?

Yes. Well occasionally in our lives we end up at a moment where we come to a junction. I didn’t actually realize that at the time, but I see now looking back, that I had reached one of those junctions in my life. And the challenge was, “which direction was I going to go”. What happened was I found myself at the very end of a three-year long case. And we were literally waiting for judgement – it was judgement day, we were waiting for the judges to return. This was at the Royal Courts of Justice in the center of London at the Court of Appeal, and there was a delay. I found myself looking out of the window, waiting for the judges to come in, thinking about how I had been, for the last three years, the voice on behalf of my client, who had been very badly injured and harmed in the workplace. And I looked out of the window and I thought “you know it’s not just my client that has been badly injured and harmed, so is the Earth. Something needs to be done about that.” And I found myself thinking after that, “The Earth is in need of a good lawyer” (laughs).

It was one of those thoughts that just wouldn’t leave me alone, it stayed with me. And as a barrister, as a court advocate, I was looking for the tools that I could use, the laws, quite literally, that could be used to stop this mass damage and destruction. And it really bothered me, that actually they didn’t exist. The existing environmental laws, as far as I could see, were not fit for purpose. You just have to look at the Amazon, and what’s happening there, to know that. And so I looked around to see what lawyers were creating, the international laws, to stop damage and destruction. I couldn’t find them. It actually came back to me and I realized then that maybe I need to put my head to this. Which is precisely what I did (laughs).

The most important thing that came out of your research into ways to defend the rights of the Earth, was the concept of Ecocide. What is Ecocide?

Ecocide is a word that has been around since the 1970s. I didn’t actually know that at that time – I subsequently found that out. What I have done is, I’ve given a legal definition to it. So I basically created a legislative framework in which we can prosecute those who have caused mass damage and destruction to a lot of ecosystems. But there’s more than that. It’s about creating a legal duty of care, and that’s very important here. Because it’s not just human-caused ecocide, largely corporate ecocide, but it’s also about creating a legal duty of care on those who are in positions of what is known in international criminal law as a position of superior responsibility. So those who made the decisions at the very top end, that can have an adverse impact on many millions of people – and not just people, but other inhabitants of ecosystems, too. We are widening our ambit of concern here. It’s not just human engagement, but also non-human engagement. We are imposing a legal duty of care on those who must make decisions that do not cause mass damage and destruction. We have to draw a line somewhere, and say ‘no longer can we do this’, because the often unintended consequences of such business decisions have huge adverse impacts, way into the future.

In Eradicating Ecocide you say that Law has caused the problem of the massive environmental damage and destruction we’re seeing. How has Law caused the problem, and how can a Law of Ecocide now be the solution to the problem?

The irony is that we have created laws over time without looking to the consequences. It is the law for a CEO and directors to put the interest of their shareholders first. Which means maximizing profits for big transnational corporations. This has become a real problem. It is fine when you start out small, but when your operations become so large that they have huge unintended consequences, and those companies are hidebound by those laws that insist that profits are put first, then we have really a huge problem on our hands, where you externalize or actually just ignore the consequences. When profit is the number one driver, it means that communities aren’t actually looked after.

So the Law of Ecocide is legislation that will actually assist corporations – this is really about making the problem into the solution! Corporations actually work very well with international legislative frameworks because they have very sure indicators of what you can and cannot do, and it also means that they can finance their change in policy and gain subsidies from government to create the innovation in the other direction. So this is very much about creating the green economy, but also about creating resilient long term economies as well. And creating jobs, and preventing resource-wars. So you could say it’s just a win-win all round. The environment benefits, humanity benefits and business benefits.

You say that Laws can be “Consciousness Shaping Tools” because Laws can trigger a change in mindset and change the ruling paradigm. Can you give a historical example of a Law that has done just that?

Yes, the abolition of slavery was very much a moment in time and history where a law acted as a bridge in the shift in consciousness. With the abolition of slavery and the laws that were put in place, slavery went from being the norm, the accepted way of being of having blacks in chains, to being utterly unacceptable, almost overnight. Likewise we have seen that with Genocide. Believe it or not, some countries had actually put laws in place to make it lawful to commit Genocide, before it was prohibited. And also with the abolition of Apartheid. This all requires legislation to do that. And I believe we now need to do the same again, only this time around, it’s with Ecocide.

So what would a Law of Ecocide look like?

Ecocide would be prohibited by creating an international law, that is government by the International Criminal Court. The International Criminal Court sits as what is known as a “Court of last resort”. It only steps in when a government is either unwilling or unable to take action. So when the Law of Ecocide is put in place at an international level, then it trickles down, very fast, so that national countries then have to put into place their own national legislation that’s aligned with the international legislation. Now what I propose is that we have a transition period of 5 years, and this is put in place for all countries to come in line with this law.

And for this the Rome Statute would have to be amended?

That’s right. The Rome Statute is an international governing document, a treaty, that sets out the existing Crimes against Peace. So we have war crimes, crimes against humanity, genocide, and the fourth one: crimes of aggression in the run-up to war. What we are doing is seeking an amendment to that international legal document. An amendment is far easier to do than creating a whole new treaty or convention. An amendment just needs a two-third majority of existing signatories. And we have 121 countries that are signatories, so all we need are 81 people in the world, to make this an international law and fundamentally shift our consciousness and change the outcome for humanity at large.

Ecocide was in fact drafted to become part of the Rome Statute back in 1996. Why was Ecocide left out of the final treaty text and what lesson can be learned from this?

Yes, this is truly remarkable. I did actually not know this when I first proposed the Law of Ecocide to the United Nations in 2010. In fact 11 years had been spent with special rapporteurs, lawyers and working groups working on the draft of what now has become the Rome Statute. And Ecocide was included the whole way up until the very last minute, when it was removed, despite the fact that most countries had gone public in their support of it. Now, we have the minutes of that meeting when it was withdrawn, and no actual reasons were given at the time. A lot of countries objected. What we do know is that four countries did not want it to go ahead, and as a result it was pulled in a most unorthodox manner. Those countries were the US, the UK, the Netherlands and France.

What we can do now is make sure that it doesn’t get pushed off the table in the same way this time around. We still don’t have the most transparent of processes, but it is better than it was back in 1996. And what I have been doing is keeping track of everything I do, so you will find a lot of information on this out in the public domain. In fact, the second book, Earth is Our Business, and various research documents are under Creative Common Licenses as well. So the information is widely distributed and disseminated this time around. The beauty is that we don’t have to spend 11 years discussing and drafting it all over again. I have taken it to the next level. All we need to do is put back into place that which should have been there in the first place. And this time around, by making it publicly available, we keep it in the public arena the whole way through, and make sure that what happened back in 1996 won’t happen again.

What do you think of the verdict of the Dutch court in the Shell Niger Delta oil pollution case?

This is very interesting, because this is about accountability of corporate activity outside of Europe. What’s now been accepted as a draft in Europe is a draft Ecocide Directive, which is being fast-tracked through a European Citizen’s Initiative. All it requires is a million votes in Europe within this year for it to be tabled in the European Commission. We think this is perfectly doable. What is very important here with an international law of Ecocide are not just the civil implications, but also the criminal implications. This is about holding individuals to account for decision-making in the board room in a criminal procedure. It’s about restorative justice as well. In truth there is not much to be gained by locking someone up. A breach of the duty of care to prevent massive damage and destruction of ecosystems, imposes upon the perpetrator the obligation to pay for the damage.

Why should the criminalization of Ecocide be argued on a moral imperative and not on an economic imperative?

This is about the difference between extrinsic values and intrinsic values. So ‘extrinsic values’ means that something is parceled out and you commoditize it. It is used purely for profit, to buy, to sell, to use or abuse without regards to consequences. It’s all about property laws. But the Law of Ecocide is also about a fundamental shift to intrinsic values. And it has an intrinsic value in- and of itself to look after the Earth, to look after communities living on this Earth, and to recognize their intrinsic value. That’s about Trusteeship laws, about guardianship, stewardship, about taking responsibility. About really owning a duty of care, a collective duty of care. It’s about fundamentals that are very undervalued. Of course it’s not only about humans living in a given territory of land; you’re looking at the land itself, the water, how it’s been polluted and poisoned, the air, and so on.

What would you say to critics who call your proposal to make Ecocide the 5th Crime against Peace naive?

I think what is very naive of us is thinking that we can continue the way that we are living and sidestep our responsibilities. This is a moment in time that really calls for bold moves and leadership in each and everyone of us, in particular within businesses and governments. This is very important, because ultimately, at the end of the day, just making a lot of money out of destructive practices can have huge adverse consequences which we all have seen playing out in our lifetimes.

And yet we have every possibility to put in place a system that allows us to create constructive practices by which these businesses will flourish. When governments have legislation in place at an international level, it allows them to prioritize innovation in another direction, which will create jobs on the ground, ensure that we build resilient economies, and put in place systems that local communities can flourish from and be nourished by. So it’s about fundamentally changing the rules of the game and recognizing that it is safe to do so. It’s fine: we can do this and we can make it happen, and nobody should go under. One of the reason that I propose a transition period is that these big corporations do not go under. It’s very much about making the problem into the solution and we can use Law to do that.

Who was Charles Grant and why does he inspire you?

Charles Grant was an amazing man. He was the biggest CEO, or director rather, of his day, 200 years ago. He was the director of the East India Company. As such, he was the equivalent of the head of a big international oil company today. He did something truly remarkable in his time. He actually stood up and spoke out in favor of laws to abolish slavery, at a time when everyone said “That’s mad, you can’t do that. Slavery is a necessity: the public demands it and we will ruin our economy if we get rid of it”. But he stood up and said “No, the moral imperative trumps the economic imperative. Morally, this is wrong. We must stop this”.

And this came from a man who stood to lose an awful lot, who stood to lose his career, his status, a lot of money. And yet, he did this. And the remarkable thing is, when he did it, two things happened: governments listened and took action, and he gave permission to other leaders in business to stand up and say the same thing. And that was important because a lot of people were in agreement behind closed doors, but nobody spoke out in public against slavery. So I’m looking for my Charles Grants today, who can stand up and say ‘Morally this is wrong that we are causing such mass damage and destruction. Our moral imperative should trump our economic imperative.”

The great thing was that there were 300 companies involved in the slave trade at that time and not one of them went under. And that’s because they were given a transition period and they were subsidized, and they were given assistance. That’s very important because if you allow transnational corporations to go under, it really has adverse impacts on global economies, never mind our local economies. So it’s very important to hold that space through that transition period. And what happened after the abolition of slavery, is that some of them went on to trade in different commodities, and others even became the policers of the sea, the moral arbiters so to say! But the most important thing is that the fear was unfounded. Abolishing slavery did not lead to economic collapse. If anything, it created more economic resilience. It proved to be wrong that slavery was a necessity, and the public accommodated quickly, overnight it became absolutely untenable and unacceptable to have slaves in any fashion or form.

So it just comes to show how sometimes individuals can act like beacons of lights, can create tipping points, can be bridges between different worlds. And when they speak out, they give permission to others to shine their lights and speak their truths as well. And the great thing is when we do that, then something beautiful can come of it, and that’s what is so very important here.

So I’m looking for those Charlie Grants! (laughs)

Have you met some of them, talking to business CEOs?

Yes, without a doubt, there is great engagement in the international business community for all of this. In a way, that awareness is building and the conversations I am having behind closed doors are part and parcel of this. I think it’s only a matter of time until we start to see business leaders standing up and speaking out on this. What we really need to do is pave the way to allow that to happen, create the enabling conditions to allow that to happen, and to recognize that it’s not a blame game. Nobody comes to the table with clean hands here and it is not about retrospective laws either. Eradicating ecocide is something that needs a transition period and only then is it put in place, so that everyone has an opportunity to put in place the innovation in the other direction. So I’m very hopeful. There’s some great conversations happening behind closed doors. We just need them to go public. We need to open the doors!

Reading about the destruction of the Amazon and massive oil spills can make one feel very powerless. However, you say that all of us could be ‘trim-tabs’; catalysts in changing the world. What do you mean by that?

A trim tab is a remarkable little mechanism that exists on big cruise liner ships. All it takes for a cruise liner to turn around a 180 degrees and spin in the opposite direction, is the power invested in one finger, that presses the button, which then connects with a wire that goes all the way down to where the rudder is. And at the base of the rudder is a tiny little thing called the ‘trim tab’. When that turns, it turns different colts which then in turn turns the whole of the rudder, and so the ship can move smoothly and seamlessly 180 degrees into a completely different direction.

Now I think human beings are like trim tabs. I think the law of Ecocide could be a trim tab, that can actually allow us to turn around this sinking ship very very fast. All it needs is for one person to put their finger on that button. And this is where Charles Grants come into play. Because by standing up and speaking out they will give the confidence and create the enabling conditions to governments to then come aboard as well. But we can create the enabling conditions for governments to come on board, also. And that’s why it’s vital to support this law, especially in Europe, and I do strongly urge everyone to go and sign the European Citizen’s Initiative to end Ecocide in Europe, but also to start speaking out about it.

What keeps you inspired and motivated to keep on going with this daunting task?

I strongly believe in my heart of hearts in the power that is vested in each and everyone single one of us, to create a better world. All I am doing is I am putting my skills to good use. It so happens that I am a lawyer, so I do just that. Each and every single one of us is a co-creator of this world, and we have a choice. We can either sit back and be an observer of a world we don’t like, and if we do that, then we become complicit in a system we don’t want. Or we can stand up and say “Actually I choose a different set of rules.” And that means we need to create these new rules, that is part and parcel of it.

But also it’s about a vision of a better world. I can see very clearly what that will be like, and how that can be done logistically and legally in this lifetime. I am under no illusion that yes, if it were very simple it would have been done already. But I think we are living in quite magical times, and it is up to us to create the magic and make it happen. I am absolutely convinced that we can.

Do you have a spiritual practice that strengthens you in your vision for the world?

I am kind of eclectic. My friends say that I should be a Buddhist, but I am not. I do meditate every morning. That, I think, has been essential in what I’m doing, also because it allows inner development to occur. I used to be very angry at the damage and destruction that is going on in the world. I’m not now; I’ve let go of that. And actually I feel a lot of compassion because I think a lot of it has happened as unintended consequences, and really now that we know what we are doing, we are in a position to take responsibility and that’s what is most important here. I am sure that we can change, and that we will. There are good people working out there in systems that tie them into ways of being that don’t work.

So for me this is about creating the enabling conditions for every individual to stand up and speak out. Creating the enabling conditions so that communities are empowered to co-create the world they want, locally as well as at a national and international level.