Dr Damien Short
On the 10th December 1948 the Universal Declaration of Human Rights (UDHR) was adopted by the United Nations General Assembly at its third session. The Declaration consists of 30 articles affirming an individual’s fundamental rights and freedoms which, while not legally binding in themselves, over the years since, have been elaborated in subsequent international treaties, regional human rights mechanisms, and national constitutions. The Declaration is commemorated each year on 10 December, the anniversary of its adoption and known as International Human Rights Day.
The day before the UDHR was adopted, the 9th December, the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention) was adopted by the United Nations General Assembly. The Convention entered into force on 12 January 1951 and was the product of the tireless efforts of the Polish jurist who coined the term, Raphael Lemkin, and the international movement to criminalise Geocide that he helped to shape.
The concepts, philosophy, laws, mechanisms and jurisprudence of human rights and genocide have developed considerably since 1948, but on one vitally important issue the field of human rights has developed where genocide studies and genocide jurisprudence has not. It concerns, what Joel Kovel has called, an ‘ecological crisis’. It is more than a crisis of ‘environmental destruction’, which suggests that we human beings exist apart from our natural context. Indeed, it a crisis of ecosystems in which we are embedded. The crisis includes everything from, species extinctions, anthropogenic climate change, sea level rise, and pervasive plastic pollution to the dramatic decline in our pollinating bee populations. Regardless, of the arguments for protecting and mitigating these issues for issues for their own sake, they need to be addressed for our sake. The human rights discourse now appreciates this. All human beings depend on the environment in which we are ecologically embedded.
A clean, healthy and sustainable environment is vital to the full enjoyment of a wide range of human rights, including the rights to life, health, food, water and sanitation. Without a healthy environment and ecosystems, we are unable to lead the ‘minimally good life’ that human rights and meant to guarantee. Simultaneously, protecting human rights can help protect the environment. Since the early 1970s, the recognition of vital links between human rights and the environment has grown considerably. We have seen a veritable explosion in the number and scope of international and domestic laws, judicial decisions, and academic studies on the relationship between human rights and the environment. Indeed, numerous States now incorporate a right to a healthy environment in their constitutions. In 2012 the Human Rights Council established a mandate on human rights and the environment, in order to analyse human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, so as to promote best practices in environmental policymaking. Mr. John Knox was appointed in August 2012 to a three-year term as the first Independent Expert on human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment. His mandate was further extended in March 2015 for another three years as a Special Rapporteur.
The human rights legal regime is still largely focussed on the rights of individual human beings despite some relatively recent more ‘collective’ developments such as UN Declaration on the Rights of Indigenous Peoples . The Genocide Convention, however, has a focus on social groups and seeks to criminalise international destruction of ‘national, ethnical, racial or religious groups’ by a) killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group. While the methods listed there are actually quite broad the field of genocide studies and the international criminal tribunals that have used the Convention have tended to focus almost exclusively on physical killing. In my latest book ‘Redefining Genocide: Social Death, Settler Colonialism and Ecocide’, I outline how Lemkin’s much broader definition put ‘culture’ at the heart of the understanding of a social group ( a ‘genos’) and hence cultural destruction was a key method of genocide and not a lesser form of it. I also show how indigenous peoples in the world today who use the word ‘genocide’ to describe their lived experience of colonisation and suffer environmental destruction, often at the hands of multi-national extractive industries, have an understanding of genocide much more in keeping with Lemkin’s original conception than international law or the work of many genocide scholars who focus on mass killing.
Indigenous peoples’ who use of the language of genocide to describe their living conditions often emphasise how ecological destruction has disastrous physical and cultural consequences. This is a dimension of genocide that is far too infrequently discussed, a situation I tried to address in my book. That said, before the civil war in Rwanda and the subsequent International Criminal Tribunal the Genocide Convention wasn’t being used and the Sub-Commission on Prevention of Discrimination and Protection of Minorities in 1978 decided to review the effectiveness of the Convention. The Sub-Commission wanted to examine if the cultural method which Lemkin emphasised should be re-inserted into the Convention alongside a new method, ‘ecocide’ to cover the emerging environmental crisis and the destructive affect it can have on the survival of distinctive cultural groups. As Sub-Commission member, Mr Abdelwahab Bouhdiba, argued in support for criminalising ecocide;
‘any interference with the natural surroundings or environment in which ethnic groups lived was, in effect, a kind of ethnic genocide because such interference could prevent the people involved from following their own traditional way of life’.
Ultimately, however, the recommendation from the Sub-Commission came many years later and simply recommended that ‘further consideration should be given to this question’. Thus, an opportunity to advance the law, jurisprudence and even the field of genocide studies was missed and the human rights discourse continued to lead the way in its appreciation of the role environmental destruction can play in human rights violations. Moreover, as climate change bites across the world protecting cultural diversity for the good of all becomes ever more important, for traditional knowledge of local environments, passed on through culture, has been human kind’s primary adaptive mechanism.
With this is mind, and the desire to protect the planet for future generations, in recent years a campaign to criminalise ecocide in its own right, and as a strict liability offence,[i] has been instigated by international lawyer and environmental activist, Polly Higgins.[ii] The Eradicating Ecocide campaign draws attention to the numerous examples of ecocide and its human consequences worldwide, at a time when preventing further ecological destruction couldn’t be more pressing. Eradicating Ecocide is one of a number of campaigns[iii] that highlights the particularly devastating impact environmental destruction has on indigenous peoples who depend on the health of their local environment not only for their own physical well-being but also for their spiritual and cultural health. Even so, the focus goes beyond the plight of indigenous peoples to eradicating ecocide for the good of the planet, its ecosystems and all those beings that depend on them.
As we have seen, we do not currently have an international crime of ecocide and hence there is no law to prosecute those who are destroying our environment and ecosystems.[iv] Far from it, under our current neo-liberal capitalist order governments the world over positively encourage such destruction in the name of economic growth.[v] We do have an international crime of environmental destruction as a War Crime, but this has no applicability in times of peace and ‘environmental destruction’ doesn’t capture our environmental embeddedness, nor the full scale of our predicament, or the role of capitalism and resource extraction in its development. The Eradicating Ecocide campaign may not endorse an overtly anti-capitalist agenda but in its preference for the concept of ‘ecocide’ rather than ‘environmental destruction’ it invokes a holistic understanding of the problem as an ecological crisis, and the concomitant need for the protection of ecosystems, rather than an abstract and external ‘environmental’ crisis. Indeed, Higgins defines ‘ecocide’ as:
‘the extensive damage to, destruction of 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.’
This definition is the basis of the Eradicating Ecocide campaign’s proposed amendment to the Rome Statute, treaty that established the International Criminal Court (ICC) – it entered into force on 1 July 2002.[vi] In short, it is envisaged that any extensive damage, destruction to or loss of an ecosystem can constitute ecocide. ‘Extensive’ can be either widespread, long lasting or severe. To define these terms the campaign invokes the 1977 United Nations Convention on the Prohibition of Military or any other Hostile Use of Environmental Modification Techniques (ENMOD):
- Widespread: encompassing an area on the scale of several hundred square kilometres.
- Long-lasting: lasting for a period of months, or approximately a season.
- Severe: involving serious or significant disruption or harm to human life, natural and economic resources or other assets.
Under the Rome Statute, the ICC can only investigate and prosecute the core international crimes where states are unable or unwilling to do so themselves. These are the existing four Crimes against Peace (genocide, crimes against humanity, war crimes and the crime of aggression) and hence the argument that ‘ecocide is the missing fifth Crime against Peace’[vii]
Higgins outlines two types of ecocide 1) Human induced or ‘ascertainable ecocide’ – ecocide caused by human agency, where an individual responsible for the activity can be identified. Usually, Higgins points out, this is corporate induced ecocide, and she invokes the poster child of extreme energy- the ecological disaster that is the Athabasca tar sands in Alberta Canada, which we will discuss later on in the book. 2) Ecocide by ‘other causes’, like catastrophic events; referred to in law as an ‘act of God’, such as flooding or an earthquake. Events such as these can be termed ‘non-ascertainable ecocide’ as no one perpetrator can be identified. Of course, this type of ecocide cannot be stopped, but when human induced ecocides, which destroy carbon sinks and create escalating carbon emissions, are stopped, it is possible that this could reduce the frequency of climatic extremes and mitigate the negative impacts of naturally occurring ecocides.
Following on from Higgins’ initiative, a global grassroots supporting campaign (not dissimilar to that which lobbied hard for the Genocide Convention) has emerged called ‘End Ecocide on Earth’. The ultimate goal of the initiative is that ecocide will be recognised as a crime around the world. In their own words: ‘this means not only national ecocide crimes in all states but also the recognition that ecocide is an international crime which can be enforced with an international court. To that end, ecocide should be incorporated into the Rome Statute as international Crime against Peace under the jurisdiction of the International Criminal Court. Leaving aside the thorny issue of likely political opposition, the process of revision of the Rome Statute is remarkably simple in that one member state can propose the amendment to the UN Secretary-General, who then distributes the proposal to the other member states during a general assembly or convenes a revision conference. It remains to be seen whether a potential crime of ecocide can progress further within the international system this time around, when the need is much more urgent and pressing than it was in the preceding decades, but I sincerely hope it can.
Dr Damien Short is a Reader in Human Rights at the School of Advanced Study and Co-Director of the Human Rights Consortium. Dr Short is also the Convenor of the renowned MA in Understanding and Securing Human Rights and module tutor on the online distance learning MA in Understanding and Securing Human Rights.
[i] On this see Higgins, P, Short, D and South, N (2013) ‘Protecting the planet: a proposal for a law of ecocide’, Crime, Law and Social Change April 2013, Volume 59, Issue 3, pp 251-266
[iii] E.g Survival International, Forest Peoples’ Alliance, Raven Trust, Cultural Survival and many more.
[iv] See P.Higgins, D Short and N.South, 2013 ‘Protecting the Planet: a proposal for a law of ecocide’, Crime, Law and Social Change, February DOI 10.1007/s10611-013-9413-6
[v] See Martin Crook and Damien Short, Marx, ‘Lemkin and the Genocide Ecocide Nexus’, The International Journal of Human Rights, Volume 18, Number 3, 3 April 2014, pp. 298-319 (22) and for a more in-depth discussion of this theme see Joel Kovel, The Enemy of Nature: The End of Capitalism or the End of the World, Zed Books: London.
[vii] Guger et al, (2013) ‘Ecocide is the missing fifth Crime…’