Ecocide should be treated like a war crime, U.K. lawyer says


Tonight — when those of us in the developed world are to turn off the lights to mark Earth Hour — two Alberta oilsands company executives will be sentenced for their roles in the destruction of nature.

They were convicted of ecocide last Sept. 30, during a live-streamed trial by jury in the U.K. Supreme Court.

It took just 50 minutes to reach the unanimous verdicts. Canada’s oilsands were judged as the biggest offender against nature on the planet, beating even BP’s massive 2010 oil spill in the Gulf of Mexico.

Their sentencing will be webcast live from England’s University of Colchester.

The oil company executives are fictional, of course. It was a mock trial, even though real lawyers and judges and a public jury acted as if it were real.

It was conducted as if ecocide were an international crime against peace, alongside genocide, crimes against humanity, war crimes and crimes of aggression, and placed under the jurisdiction of the International Criminal Court.

All this is the brainchild of international lawyer Polly Higgins, a Scottish-born environmental activist who has made eradicating ecocide her life’s work.

Eradicating Ecocide is also the title of her book.

Ten years ago, she was a successful young barrister, representing corporations in pollution cases. Then she had an epiphany. She came to understand that the current corporate legal framework, which obligates executives and directors to maximize profits for shareholders, made it illegal for them to prioritize the environment in their business decisions.

That’s when her life changed.

Ever since, she has been lobbying government and business leaders around the world to pass laws that will set the world on a different environmental course.

Higgins, 43, was recently in Toronto during a speaking tour of North America. This is an edited version of her conversation with the Star:

Q: This is quite the crusade.

A: This is very much the cutting edge of where law is going. This is about creating laws that are needed to protect both people and planet. Because, at the moment, we have this whole body of environmental law but, actually, it doesn’t protect people and planet. What it does is ultimately protect the polluter and the destroyer. It’s based on fines, catch-me-if-you-can laws. What I am doing with environmental law is going upstream to the source of the problem to turn the tap off. We close the door to planetary destruction.

Q: You say that business and government are looking at the problem all wrong.

A: If you view the Earth as an inert thing, what happens is that we commoditize it. We put a price on it. We buy and sell it. We use it. We abuse it. That is the law of property. That’s “I own. I can do what I like. I own.”

If you view the Earth as a living being, something quite different happens. We start taking responsibility. What happens there is that you end up in a relationship, and it’s a trusteeship, a guardianship, a stewardship. That’s governed by trusteeship law. And what happens there is you have a legal duty to care.

Q: Where do you even start making changes?

A: The problem is when you as a CEO, you as a director, have a duty to maximize shareholder profits, any other consideration is just by-the-by. Mass environmental destruction is just collateral damage as long as you’re making lots of profit.

We need a higher standard, one that supersedes the one that profits are king, one that says, no, first and foremost what you do is ensure that you don’t damage and destroy the environment. Then you can decide where the profit comes from.

If, for instance, a CEO and directors risk prosecution individually for the crime of ecocide in the Athabasca tarsands, and the Canadian government will no longer finance anything that’s become an international crime, and banks won’t invest in it because it’s an international crime, policy will change very suddenly and dramatically. Finance and investment will go into clean energy solutions.

What you do is give the legislative framework for companies, energy companies, to create innovation in a very different direction.

This isn’t about locking people up. This is about creating an international piece of legislation that creates a transitional timetable where you say, yes, we create an international law of ecocide but we create an amnesty period where we don’t prosecute.

This is about heads of state and governments coming together to create a new, clean green economy.

This is about giving assistance to companies for reinventing the wheel.

Q: Good luck with that.

A: Look at slavery. All economies were built on slavery 200 years ago. Everything that we did depended on slavery, directly or indirectly.

In Britain, William Wilberforce was the parliamentarian who came along and said morally this is wrong, we have to stop this. It’s not a matter of using slaves a little less — which is like aiming for energy efficiency today — it’s about going upstream and turning the tap off.

Wilberforce hit a complete wall of resistance. He had literally the whole of industry saying you can’t do that. It’s necessity. The public demands it and, more than that, it would lead to economic collapse.

Now those three arguments are with us again today, about fossil fuels: necessity, public demand and imminent economic collapse.

Q: So it took one MP to abolish slavery?

A: There was another man, Charles Grant, the biggest CEO of his day. He owned the British East India Company which owned over half the world’s slave trade. He, too, went public and said, “This has to stop. Morally this is wrong.”

When he did that, something remarkable happened. Other industry big names started to publicly agree. They knew it was wrong as well but were afraid to speak out. He triggered something. Governments finally listened and changed the laws.

Now we’re starting to have a narrative emerging in big business which says we have to stop destroying the Earth. We have to put people and planet first. This is about the moral imperative trumping the economic imperative.

Richard Branson (Virgin Group) just came out saying put people and planet first. He is one of the biggest businessmen in the world. He makes most of his money using fossil fuel but he stands up and says this.

It’s not just Richard Branson. I’ve been having a lot of closed-door meetings with business and industry. There is a growing momentum, recognition that if we keep on destroying the Earth, we ultimately destroy ourselves.

Q: How do you make all this happen?

A: This is very much about using international law creatively.

Actually this is the greatest job creation scheme in history, in all of civilization ever, where you literally retool your workforce in a different direction and very, very fast.

And it has already been done: during World War II, when America came in late to the war effort and said we need 50,000 planes now, yesterday. They turned to the auto industry and said we want you to build planes. The car industry said no. We’re busy tearing up railway lines so we can sell cars. The government came back the next day and said it is now illegal for you to make cars; you will make planes. And we will make it worthwhile for you.

That shows what happens when political will meets emergency. It gears up industry. If you think it’s an emergency you can create the emergency laws. It doesn’t have to take years.

And remember this also, America did very well out of war. It gained a whole new economy. Industry really benefited from that can-do mentality America had.

The writing is on the wall. It’s a matter of when, not if. So why not become part of the solution rather than stay part of the problem and be prosecuted for it?

Person of interest: