California For The Win

Why Climate Litigation Matters

Welcome back to Damages and welcome to season two, The Letter of the Law. We're going to dig into some of the big legal ideas that are shaking up climate action from the new international crime of ecocide. to the secret tribunals that corporations use to try to block climate policy. First up today, a look at the international push to define ecocide as a crime prosecutable in international courts.


I'm joined by Jojo Mehta. She is the executive director of Stop Ecocide International, and she helped to walk me through exactly what this crime is and how it's been conceived. as another legal instrument for climate accountability. It's also really a good time to be doing this episode right on the heels of our season about rights of nature because the two ideas really dovetail in some interesting ways.


It's worth noting that this idea of criminalizing behavior against ecosystems is not new. Actually, there's some interesting documents from the 80s and 90s around even U. S. politicians trying to do this. What is new is how ecocide is being conceived of in the context of international human rights and what could happen if a person or a company or an entity of some kind got hauled before the Hague for ecocide.


We're going to get into all of that and more. Coming up right after this quick break.


Hi, I'm Jojo Mehta. I am co-founder of Stop Ecocide International, alongside UK Legal Pioneer and barrister Polly Higgins, I should say, the late great Polly Higgins since she's no longer with us. We co-founded the public campaign in 2017, but she had already been working for several years. on the sort of promotion and moving forward of a particular legal initiative, which is to criminalize ecocide.


In other words, to make mass damage and destruction of nature a crime, and more specifically at the International Criminal Court alongside war crimes, genocide, and crimes against humanity. Excellent. Thank you. And can you define EcoCide for me? Well, the wonderful thing now is that I don't need to define it anymore because an amazing international group of legal experts have done this.


There was a major drafting project undergone last year that was convened by our a charitable arm foundation, and we brought together 12 lawyers, um, top lawyers in different legal fields. So international criminal law, public international law, international environmental law, humanitarian law, but also from all around the world to work on a consensus definition of what ecocide could look like as a fifth international crime.


And what they came up with was. Essentially two paragraphs and the core text, this is one short paragraph and I'll read it to you now. And it's, it's remarkable and it's so concise that you can fit it on the back of a business card. So we do. Ecoside means unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long term damage to the environment being caused by those acts.


So it's very concise, um, and easy, really quite clear and easy to understand. And of course, you know, I think the word itself has sort of carries its own weight in the sense that it's relatively easy to kind of work out that what you mean by ecocide is effectively the sort of ecological equivalent of genocide.


In other words, you're talking about the destruction of nature. But to have this very concise definition out there in the world has really made it real. It's made it real for politicians, made it real for lawyers. And indeed the media. And so there's a rapidly growing actually traction behind this initiative and there are now I think 19 member states of the International Criminal Court who have or are discussing it in some way at parliamentary or government level.


So this is a fast growing movement. Wow, that's so interesting. Can you explain what does it mean for this to have been sort of officially recognized as a crime in this way? What does that entail and then kind of how can that be used? Yeah, I mean, I think we need to sort of look at some of the a couple of the kind of overarching reasons why we aim to have it recognized at the international level.


And that kind of opens out the conversation as to what we're facing globally. So first off, the International Criminal Court, or ICC for short, is the only global mechanism which directly accesses the criminal justice systems. of its member states. So when you make something a crime there, when a country ratifies a crime at the ICC, they have to include it in their own domestic law.


So it's not a sort of a separate court, like the European Court of Human Rights or the Inter American Court. It's, it's, it, it's a complementary court. So it interacts directly with the penal codes of its member states. And what that means, and it's hugely relevant. Right now, because we're facing a global climate and ecological crisis, you know, where the situation itself is, is completely global, you know, we would never, we would never discourage anybody from trying to legislate nationally, of course, but the fact is that the predicament in which we find ourselves is a global one.


And so in order to create a coherent, shift in the kind of legal ground rules that can apply across jurisdictions, the ICC route is the way to do that. And what we believe it will do, I mean, there's a number of things, but a couple of the sort of core considerations are that, I mean, how do I put this? I suppose, at least, you know, if you're campaigning for human rights or social justice and so on, you know, you know that, you know, mass murder and torture are crimes, right?


But if you're working towards either improving regulation or reporting or activism or working on anything in the environmental and conservation sphere, you just don't have that foundational piece that serious damage to the natural living world is a crime. That simply isn't the case. So it's almost like the whole environmental movement has been operating a little bit on a void.


And so, you know, we believe that actually criminalizing ecocide at the highest level can really help, particularly with this definition that I just, um, read out for you has this ability to strengthen existing law, to move destruction of nature into a different sphere, to kind of drop it below the moral red line that we use criminal law to define.


So, you know, killing people, torturing people, it doesn't even cross our minds. to think that in some circumstances, that might be okay. We basically know that it's completely unacceptable. And for the same reason, you know, a company is not going to go to government and say, can I have a permit to kill 500 people for my new infrastructure project?


That it's just not even going to cross their mind, but we haven't got that same taboo. with destruction of nature. And that is one of the key things that we believe introducing a crime of ecocide can do. Right. So you mentioned that several folks are discussing this at the parliamentary level. Does that mean that they are considering passing laws that would sort of codify?


Eco side, but the country level, what does that mean? And how do you expect us to start seeing this show up as a sort of a prosecutable crime as we go forward? I mean, it varies from country to country. So for example, I mean, Belgium's probably the front runner in this in that they passed a parliamentary resolution just Before Christmas, by overwhelming majority, the Belgian Parliament voted to basically to demand of their government that they legislate both nationally and support an international crime.


So that's quite advanced. I mean, at the other end of the spectrum, I mean, there's kind of everything in between. But at the other end of the spectrum, you've got somewhere like, say, Canada, which is perennially sitting on the fence with this kind of issue because they want to look. Like they're at the forefront of environmental concerns and yet, you know, they've got the tar sands and, you know, there's a kind of ambivalence there and what they've said is we are following this conversation closely.


So there's engagement with it, but you know, it's probably going to be a while before they, you know, fall down on the right side of that fence. But, but, you know, there's kind of everything in between. France has actually, in fact, in some ways is even further ahead than Belgium in that they've included ecocide in their domestic legislation, but they have watered it down quite a bit in order to pass it nationally.


And one of the reasons that we would advocate for an international crime, one of the reasons is precisely to avoid that, because obviously what we want is we want the whole international community to move together. But what we also want, and this is really important, and this kicks in well before the law itself is passed, is that we want All sectors of industry and the finance industry as well.


So, you know, the financial sector, so investors, insurers, and so on to see this coming. It's actually really important that they see it coming because that, that period between the realization that something like this is approaching and that is now starting to sink in, in, in a number of areas, you know, and, and the actual date that it might end up being enforced, which we obviously can't put a specific date on, but we estimate kind of maybe four to five years before it's actually being ratified. Um, you know, that space is really important because that is where those decision makers are going to be looking at that definition, you know, applying it as a lens to their own industry and going, right, gosh, okay, what do we need to, what do we need to look at in order to be on the right side of this law by the time it comes in?


Right, right. So I would like to ask you to walk me through a hypothetical. Have you had a scenario in mind as you've been working on this, you know, one day. A particular company or the government of a country being, you know, hauled into the Hague to answer for ecocide. Like, what does it look like? I mean, there are some candidates that people often think of, you know, right off the top, like Bolsonaro, for example, if you're looking at how to stay, obviously, for some, for others, it's, you know, how do we, how would we use this to apply to fossil fuel companies or to, you know, various different kinds of bad actors.


If you'd have asked me a few years ago, because I came to this from very on the ground activism, I think then I would have given you a short list of particular CEOs. We actually don't do that anymore for the simple reason that ultimately we're not, you know, the aim of this law, you know, much as it will ultimately prosecute people, the aim of this law is not to punish anyone.
The aim of this law is to protect the planet. So the aim is to actually create a deterrent preventive. situation in the same way as, you know, your life is protected by the fact that to kill you is a crime. It's a kind of overall deterrent that we're actually after. So in our ideal world, we don't actually want to see anyone in the dark.


What we want to see is that by the time this law comes in, they're doing different things. Right. So that's the ultimate aim of this. Now in practice. The likelihood of that actually, I actually think will be a lot further down that road than people might currently think because we're already starting to see, you know, investors and insurers taking this seriously.


We're even starting to see extractive companies kind of going, whoa, when they see this. So, you know, we do anticipate genuine change. But when it comes to actually prosecuting, we would imagine that. Probably the first few cases and certainly any first international case would need to be something quite cut and dried, like quite clear, um, so that it falls squarely in the definition and can is fully prosecutable because of course there's going to be a whole bunch of lawyers wanting to cut their teeth on there.


But also they're going to want it to work. And if there's a case taken actually at the ICC, they're going to want that to work too. So it's going to need to be a case that's quite clear cut and not ambiguous. You know, it could be something like, you know, I don't know, an illegal toxic dumping incident or some kind of disaster where there was very clear information that should have been followed and wasn't.


You know, those, those kinds of things. Because it's going to need to be quite clear. And of course, as the law becomes more embedded, then, you know, you have this sort of, the gradual sort of build up of the jurisprudence around it. And that will happen over time. But one of the difficulties is that the temptation is to kind of, you know, for people to say, well, where is exactly the line, you know, how, how will a company know whether or not it's, you know, it's going to be crossing this line.


It's not a hugely helpful approach. It's, it's, it's an approach that's based on the sort of historically the fact that environmental law has tended to be in the regulatory sphere rather than the criminal. arena. And it tends to be about things like, you know, well, how many toxins are we allowed to use in this particular context before it crosses a certain line?


If we want to make ecocide a crime, it doesn't kind of work like that. And the way that it's phrased, I mean, I realize this isn't necessarily criminal law, but the principle is a bit like having a health and safety law for the planet. So you don't talk about how can I approach killing someone and nearly kill them, but not quite.


Yeah. You see it as a hazard that you have to completely avoid. So effectively, you're not going to be looking so much for the sort of detail of exactly where the line is crossed. You're going to be wanting to avoid that area as soon as it goes gray. So the beauty of that is that right now, you know, a lot of those big companies.


Let's bear in mind, they don't set out deliberately to destroy the environment. They usually set out to make money in one way or another, whether that's extracting oil, whether that's, you know, raising cattle, whatever it is. So effectively, you know, what at the moment they might be employing their expensive lawyers do, is all that kind of due diligence around how do we sort of get around, you know, what's the closest we can sail to the wind kind of thing.


With this, instead of having a kind of decreasing risk type approach is more of an avoiding hazard type of approach. So what we would genuinely hope is that actually those expensive lawyers are far more likely to be doing their due diligence in the right direction. In other words, how do we make sure that we're not, you know, committing ecocide effectively.


How do we stay within this safety rail? The other aspect that comes into play here is that the way that this definition has emerged, it's as a crime of endangerment. And to give you an example of how that might work, there's a war crime, which is directing an attack at a civilian population. Now, regardless of what happens to that civilian population, as in whether they're actually killed or not, the fact that you've directed an attack at a civilian population is a crime in and of itself.
And this definition works in a similar way. So ecocide could be very similar in that effectively, if you Um, make a decision or, you know, commit an act or indeed an omission, because usually acts include that as well, that you know, could potentially create this severe level of damage, then that is the crime.


You don't have to wait till the damage materializes, you just need to show that the person knew that this was likely to happen, either because there's plenty of public domain knowledge about how dangerous it is, or because they have personal knowledge or whatever it is, um, but they decided to go ahead anyway, right?


This is so interesting because the whole reason that I wanted to start a law podcast is not because I'm so obsessed with law so much as that I think it is an illustration of the sort of values and philosophies of a society, right? What we decide to protect by law is a really clear indicator of what we value.


And so when I'm hearing you talk about this stuff, I'm like, Oh, wow, this actually is a real paradigm shift, I think, you know, that people would start to think of ecosystems in this way. And, you know, I'm just off of several months reporting on rights of nature, too. It's actually hugely relevant because, I mean, ecocide is to rights of nature, a bit like murder is to your right to life.
Your right to life is protected by the fact that murder is a crime. The rights of nature and your, and indeed your newly acknowledged right to a clean and safe environment, um, and healthy environment is protected by the fact that ecocide is going to become a crime. So there is this kind of dynamic, but I think you're absolutely right.


I think you, I think you've really hit the nail on the head with the paradigm shift, because it is one of the aspects that we think is most powerful about this, is that if you If you criminalize ecocide at the highest level and you put it next to genocide, you know, what you're saying is that damaging nature is as serious.


And actually, of course, you know, even if you're just doing it from pure human self interest, it is as serious because we're heading off a cliff in terms of the ecological situation. But it also conceptually shifts something because I think we have this. this long history of treating nature as a bank of resources and ourselves as the sort of, you know, lords and masters.


There's this incredible sort of dualism that runs right through the western canon of thinking, you know, from Plato, through the Catholic church, through the enlightenment. I mean, that dualism is still there in all of those things. It may have slightly different, you know, names on it, but it's still there, whether it's, you know, spirit versus body, whether it's reason versus emotion, we have this tendency to, to do that, to separate ourselves, to alienate ourselves to a certain extent. And so I think that, you know, the rights of nature movement, but also the ecocide movement are shifting that dynamic. And, and I don't even think it's just about anthropocentric versus ecocentric, which is one of the discourses that you find in this space.


Right. And of course, you know, the crime of ecocide doesn't have to involve human harm for it to be a crime. So, you know, you could say that it's more ecocentric in that way. But at the same time, we did a public consultation at the beginning of the process, the drafting process last year, when those lawyers all got together to work on this.


And one of the groups that we consulted was indigenous leaders. And we've got some fantastic relationships there. And one of the things that was really noticeable about their comments was they never even used the word nature or something. They didn't even use the word nature. It was all an entirety. You know, we are actually deeply entangled with the world around us.


So that in itself is an interesting thing for sort of, you know, law, if you like, to get its head around. And, um, And in in the process of the drafting, one of the interesting things that emerged in the explanatory paragraph that goes with that core definition that I gave earlier, where it talks about what what does severe mean, and one of the elements that it includes is significant cultural damage as a result of environmental damage kind of thing.


And that's kind of something new in that arena because, you know, the reality is that. In many cultures, the landscape in which the community interacts and lives is not just It's nature, it's relatives, it's part of the whole way of life and the same thing could be thought of in relation to certain sacred sites.


The other thing that I've been thinking about too is just how it provides a better decision making framework. I think if you view some of the decisions facing the world right now around energy transition, for example, through the lens of rights of nature and ecocide, you kind of avoid some of the less.


positive trade offs. If you evaluate that lens, you don't, you're not going to end up with strip mining as a quote unquote solution to fossil fuel drilling. I think this is really important. And actually in the light of the recent IPCC report that effectively the actions that have been being taken, firstly, they're not, it's not enough and it's not fast enough, but also they're not even necessarily all well suited.


And, and, and actually, I mean, you know, we read. The kind of summary of that report and kind of well, there's a clearly there's a key framing piece missing that actually ecocide crime could fill because it would actually give a kind of outer boundary, you know, a kind of parameter. And this was what one of the coaches I think was saying when I mean, she was quoted as saying that You know, government, civil society, the private sector, everybody has to work together on these many challenges because there's so many challenges to tackle.


And that can be incredibly overwhelming. And yet. If you frame the whole thing right, and everybody's working through that framework, then at least you know that the worst harms can be, you know, are going to be avoided. And the decision making process will actually involve the thinking about the impacts.


I'm curious to hear what the pushback has been. Like, I know that in the rights of nature space in the U. S. at least there's been a real increase in efforts to pass preemptive laws that would ban the passage of rights of nature laws in the first place, which is, you know, an, a completely undemocratic nightmare in and of itself.


So I'm, I'm curious to hear if you've seen anything like that at the, the international scale and what the kind of pushback has been. It's interesting is, I mean, you know, you just sort of think, you know, what do these guys think they're going to be able to take with them when they die? You know what I mean?


It's wild. But I think, interestingly, I do think this comes back again to the, an interesting point that people often raise around eco side law, which is that international crimes are aimed at individuals, not at corporations. And I do wonder whether one of the things that enables people in these Companies, and it is ultimately the people who make the decisions, isn't it, is, you know, what enables them to somehow separate themselves from the effects of the decisions they're making.


And I do think that that may be in part to do with the fact that they're doing it on behalf of a company and the company is a sort of fictional person, isn't it? I mean, it's, you know, it's obviously a person in law, weirdly, but it gives the actual natural persons, the individuals, something to kind of hide behind.


And of course, if your own personal freedom. is at stake for the decisions you make. I do wonder whether it actually might become rather different. And that's one of the things that, that I think is quite powerful about the international crimes. But in terms of the pushback, what's interesting about this actually, and on one level makes it sort of the easiest campaign in the world, is that it's actually quite a hard one to publicly oppose.


Because, you know, who when asked directly is going to say, no, I don't think mass destruction of the planet should be a crime. I mean, they will become an instant sort of demon, won't they? So we don't tend to get that. And actually, weirdly, for the fossil fuel companies, for example, it was even harder. I mean, they've spent, what, 20, 30 years greenwashing?


I mean, they're going to just throw all of that down. down the pan by saying, we don't want to eat because I'd love probably not. What that means is that the resistance is going to be mostly behind closed doors. So we don't sort of obviously see it, but the kinds of things that get thrown up, I mean, occasionally we get some totally sort of market economy focus going, Oh, you're going to wreck the economy by doing this.


And it's like, well, yeah. I mean, as we know, there's no economy on a dead planet. We've spoken with quite conservative politicians who, who've said, and this is actually quite telling they've said. We know this is coming, we just don't know when and we don't know if we're quite ready to get behind it. Now, obviously there's a sort of delaying tactic around that, but it's interesting that they're kind of acknowledging that it's kind of inevitable at some point.


So that's obviously quite encouraging, but you know, there are others who sort of say, well, you know, there are maybe other instruments that can do it better and all this sort of thing, trying to avoid. it ending up in the criminal sphere. And certainly on the level of domestic legislation, I mean, we would advise anybody wanting to push through domestic legislation on ecocide.
Firstly, we'd say, look, go to the definition that emerged from this drafting panel, because it's a brilliant starting point. Vice President of the European Commission, France Timmermans, said exactly that. He said this definition is an excellent starting point for government discussion. However, what we would say to them is make sure that you either set an enforcement date or a phasing in period.


That means it's not going to happen overnight because actually. What, what you don't want to do is instantly demonize anyone that is going to feel that they've effectively been doing something that up until now they have felt was lawful and suddenly it's going to become criminal. That's also the same reason why it's important that it's not retroactive.


So it comes into force when it comes into force. It doesn't go back and go fishing for the bastards in the past. Excuse my language. Right. Um, right. And that's very important because actually this is a global issue. Now, we're all on the sinking Titanic. It's a sink or swim situation for everyone. So what we don't want to do is.


is have heels be digging in when in fact the heads on those heels understand perfectly well that something does need to be done and so what they need is they need to see it coming and they need to see it coming with a kind of transition period that is long enough to actually take action but not so long it's going to become ineffective.


I really appreciate that your approach is motivating change not um punishing bad behavior necessarily. I mostly focus on climate accountability reporting, and I often have people be like, Oh, you know, you just want to punish the oil guys. I'm like, I actually don't. I really would just like them to stop doing the stuff that they're doing, you know?


And I think, and like accountability is actually an important piece of that because it encourages the better behavior. You know, it's people sometimes say this is obviously a stick in the carrot and stick metaphor, you know, right. And on one level, yes, of course, that's true. You're talking about creating a crime for which someone can be punished.


But actually, you know, in the light of the discussion we've just had, you can see that it's also a carrot, because if you have clear parameters, It actually unleashes the creativity that you need to meet those parameters. And if you don't have them, the default is that kind of industrial inertia that we are seeing all around the world, which is this, you know, just carry on doing what they're doing because nobody's telling them they can't.


Mm hmm. Yeah. Awesome. Well, thank you so much, Jojo. I really appreciate you taking the time.
It for this time, if there's some aspect of the law that you would like us to unpack for you, feel free to shoot us a line. I'm at amyatcriticalfrequency. org. Or you can find me on Twitter at Amy Westerveldt. In the coming weeks, we'll bring you episodes on the UN's role in climate accountability, the role of international arbitration, what the heck amicus briefs are, and why so many organizations bother writing them, a look at the differences between justice systems in various parts of the world, look at the difference between the constitutional right to a healthy environment and rights of nature, the difference between liability and fraud. And a whole lot more. A lot of this stuff is underpinning almost 800 cases that are making their way through courts all over the world at the moment.
So we wanted to do this series as a way to kind of prep people for the seasons that we have coming up about some of these cases. Thanks for listening and we'll see you next time.

S2, Ep1 Transcription

With an internationally accepted definition of this crime, advocates are pushing for international courts to recognize it as well, and they're making progress. In this episode we explore what that means, what an ecocide trial might look like, who's most likely to be hauled into court for it, and the overarching goal of the effort.

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S2, Ep2 | Secret Tribunals

S2, Ep1 | Ecocide

Law & Order meets the climate crisis as we dig into the stories behind the hundreds of climate cases around the globe. Listen here or 

S2, Ep1 | Ecocide

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