ECOCIDE: A RUM MIXTURE

Corporations and the military, consumers and environmentalists, ecocide and ENMOD. A rum mixture indeed

Why will the corporate champagne corks be flying?

In the ultimate analysis, the expedient necessary to effectively address our multi-facetted ecological crisis is nothing less than a paradigm shift in the relationship between mass society at every level on the one hand, and the natural environment on the other. This is what the criminalisation of ecocide is intended to bring about, and it is primarily designed to do so by impacting directly on corporations.

The requisite response calls for a complete revision of corporate values, and we can see from the extract from the book that is fully understood. Corporations would be required to act responsibly in an ecological sense in any circumstance where this legal measure might impact on them. In essence they must cease to cause 'widespread long-term and severe damage to the natural environment' or face the power of the law.

Yet if we are truly honest, we must admit that corporations only do these things because they are profitable; and that they are only profitable because consumers avidly buy up more or less everything they produce quite regardless of the impacts on the environment, tragic though this unpalatable truth may be.

Impacts which they are by now fully aware of but actively choose to ignore. Or discount. Or deny.

You can argue about who is leading who, but ultimately ecocide and almost all other ecological destruction and degradation occurs as a result of the direct and indirect actions of consumers, who are the ultimate villains of the piece and, as the argument for criminalising ecocide goes, villains of the peace also.

This explains why environmentalists have achieved so very little. Unwilling to make significant changes in their own catastrophically unsustainable lifestyles, in essence they are asking governments and other authorities to save them from themselves. Their principal strategy, employed more or less ubiquitously, it to call on governments to legislate to compel everyone else to do what they as individuals are not prepared to do of their own volition.

Clearly this is politically bankrupt, and they cannot expect politicians or anyone else to take them seriously. Or at least ought not; though in practice they do, and take themselves very seriously indeed, while expecting everyone else to also. It is strikingly curious manifestation of the uniquely human, uniquely civilised capacity for self-denial.

A part of the reason the environmental movement is failing so comprehensively in its central aim - assuming that be to protect the environment - is because its leadership will not articulate this essential truth to its membership for fear of alienating them, instead prioritising the flow of funds needed to persist in being ineffectual over the risks inherent in attempting to catalyse the unavoidable, but challenging and often unpalatable, changes necessary before they become impossible to deliver, as very shortly they will. By so demurring, the vicious cycle continues entirely uninterrupted.

One thing we know for certain that corporations are exceptionally good at is divesting themselves of activities which cease to be profitable in very short order - as countless victims of redundancy, retrenchment and outsourcing can personally testify.

All that is necessary is for people to stop buying the stuff...

Hence the ultimate purpose of criminalising ecocide is to engineer that sea change in behaviour, and in the societal attitudes from which it results. In short, it is to wean society off of its dependency on consumption, which means breaking the psychological addiction to consumerism which is ubiquitous in mass culture.

It has to be, as this is the only expedient which will - or can possibly - deliver us from our fate, a fate which is currently inexorable.

This change in societal values is expected to trickle down as a consequence of a change in corporate values and consequent behaviour. Clearly once corporations have to cease carrying out the activities giving rise to ecocide, the flow of the products derived from them has to stop. So society at all levels will have to go through a fairly radical transition and must learn to be content with what can be produced without causing ecocide as defined as a crime against peace - which it is hoped will approximate to what can be produced sustainably - and no more than that. In practice people would be left with no other choice. Arguably they have no other choice anyway - if it doesn't happen voluntarily, it will inevitably happen fairly soon as a result of ecological collapse and resource depletion.

So far so good. What, then, is the problem?

It is that what is currently proposed does not call on corporations to behave responsibly - tragically it does exactly the opposite. In trying to examine this, things start to get a little Neptunian, as one runs into something of an information vacuum. Unfortunately this has to be negotiated nevertheless, which will be done as briefly as possible.

The primary source of information on what has been proposed is the Eradicating Ecocide website. This has been well designed to set out the case zippily for lay people, concentrating quite rightly on the practicalities and snappy expositions. Unfortunately what it lacks is the actual proposal submitted to the UN, which comes as something of an impediment for anyone who doesn't happen to do politics of the facebook variety and prefers to read what they are being asked to support before signing up to it. Presumably this is merely an oversight which can be swiftly corrected.

Trying it from the other end, the Guardian tells us that the proposal was submitted to something called ‘the UN Law commission’, a body which unfortunately does not appear to exist either on the UN website or anywhere else searched by the google engines. One presumes the Guardian must be referring to the International Law Commission, but one draws a blank at that body's impenetrable website too.

Hence for the detail of what has been proposed we are left to rely on the extract from Chapter 5 of the book on the Eradicating Ecocide website, which by design or serendipity happens to quote the key definitions. Here ecocide is defined thus:

'the extensive destruction, damage to 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.'

and the crime of ecocide in the following terms:

‘widespread long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall community advantage anticipated’

We also learn that the wording used in these definitions was adopted from the 1977 United Nations ENMOD Convention (or Convention on the Prohibition of Military or any other Hostile Use of Environmental Modification Techniques to give its full title, also known as the Environmental Modification Convention for short).

The book then states that:

‘ENMOD 'specifies the terms “widespread”, “long-lasting” and “severe” as

'“widespread”: encompassing an area on the scale of several hundred square kilometers; “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.'

Unfortunately it does not. The ENMOD Convention is a very simple document contained in just a few pages. What it does not do is define any of those terms.

We can be reasonably certain of this as when the good people from Turkey came to sign the Convention in 1977 they had the prescience to formally reserve their position thus:

"In the opinion of the Turkish Government the terms ‘wide-spread’, ‘long lasting’ and ‘severe effects’ contained in the Convention need to be clearly defined. So long as this clarification is not made the Government of Turkey will be compelled to interpret itself the terms in question and consequently it reserves the right to do so as and when required.

"Furthermore, the Government of Turkey believes that the difference between `military or any other hostile purposes' and `peaceful purposes' should be more clearly defined so as to prevent subjective evaluations."

One does not want to make a big thing of this. The proposal to the UN and the book were put together more or less single-handedly by Polly and, rising to the urgency of our predicament, in a remarkably short period of time. In that sense it represents a magnificent achievement. If, in the course of it, a small error crept in somewhere between drafting and editing, quite possibly in an effort to make a complex (and to many, arcane and potentially terminally tedious) legal matter both comprehensible and interesting to lay readers, it matters little provided it is not material.

So for the sake of argument let us proceed on the assumption that at some time during the three decades that have passed since ENMOD was drawn up in 1976, somewhere amongst all the meetings, resolutions, decisions, cases, precedents or whatever, these definitions have acquired force of law as stated, and that the means by which this has happened will be clarified in due course.

The fatal mistake is the one which follows on consequentially:

'These expanded definitions, which are already embedded in international laws of war, offer an existing basis upon which the international crime of ecocide can be seated at the table of the ICC. The word ‘ecocide’ bestows the missing name and fuller comprehension of the crime of unlawful damage to a given environment. As a crime that is not restricted to the confines of war alone, the categorisation of ecocide as a crime against peace is appropriate. Thus, for the purpose of defining ecocide ‘damage’, determination as to whether the extent of damage to the environment is ‘widespread, long-term and severe’ can be applied to ecocide in times of peace as well as in times of war….'

In lifting the definition of the crime of ecocide straight from the ENMOD Convention, instead of giving an absolutely unequivocal signal that corporate actions which cause significant damage to the environment are absolutely unacceptable, instead exactly the opposite signal is given.

What is being proposing is that corporations can quite lawfully cause equally as much ecological damage and destruction as the absolute maximum permitted to a nation in the most dire straits imaginable in wartime.

Equally as much as military forces on the very brink of annihilation, surrounded by carnage and destruction on every side, fighting to defend the very existence of the state, possibly to save its peoples from all manner of atrocity, for very survival, and on the point of loosing all of that and life itself.

By corporations. In peace time. Merely to provide a better return for their shareholders. Entirely lawfully.

Once that is recognised, does it make sense to anybody?

Is that what we wish to see? Is that the message we wish to send to governments globally? To society? To corporations? Is that the change which is going to make the decisive difference between an ecological renaissance and auto-destruction?

It is best to put this in context. As a concept, criminalising ecocide is brilliant. Properly executed, it is an expedient which is critically necessary if we are to traverse the immediate future and emerge with at least some hope for what comes after. Just as important is that it is one of the very few which can be delivered under the system of governance which currently prevails, and quickly enough to stand a chance of making a meaningful difference. Other deliverable alternatives are vanishingly few.

The tragedy is that the delivery that has been proposed is fatally flawed as it currently stands. It is understandable why this has happened, and it has occurred for the best of motives.

For the reasons that have gone before it must be obvious that the proposal to criminalise ecocide represents a radical change in society and a radical challenge to corporate power. In proposing such a measure, it is natural to try to nuance it in such a way as to give it the best hope of reaching fruition. Under such circumstances it is a infinitely safer strategy to argue for the extension of an existing measure to new areas, than to propose an entirely new one that would undoubtedly run into serious controversy likely to jeopardise progress, if not the entire project.

A second reason is that by employing law that has already been established, one avoids the risk inherent in entirely new measures of succeeding in securing their passage through the political process, but failing in the objective because the terms employed somehow do not hold up when tested in court.

Nevertheless it is unavoidable to conclude that in this case, the mistake made over the definitions employed will lead to inevitable failure, because instead of giving the required signal to society and to the market, it will have exactly the opposite effect to the one intended.

One does not have to be around environmental lawyers for very long for the projections to evaporate, just as they do with the medical profession. Whatever the nobility of the motives for entering this field of law may have been and may even remain, it quickly becomes apparent that in practice most environmental lawyers devote their lives to advising their corporate clients on how to maximise their negative ecological impacts whilst remaining within the letter of the law. In other words, how to maximise the ecological damage that they cause without getting prosecuted for it. It is inevitable and entirely rational that corporations should behave thus, and should employ environmental lawyers to those ends. And as they are by far and away the main clients, it is also somewhat inevitable that environmental lawyers should end up serving such a master, short of dedicating themselves to something higher than purely material affluence.

It is an a more or less inescapable consequence of passing environmental regulation that corporations will expand their environmentally destructive activities to the maximum permitted within the law. This happens for two reasons, both of which are entirely rational responses to the system as it exists.

The first is that the primary legal obligation upon directors is to maximise profits on behalf of shareholders. In most circumstances this places them under a duty to avail themselves of any lawful opportunity to cut costs and so maximise profits. Obviously it is always less costly to commit environmentally damaging actions than to mitigate them, provided it can be done lawfully so the business responsible is not going to end up in court facing fines and clean up costs. Note, though, that even when it does it may still be the rational choice provided those costs amount to less than the saving made in operating costs, or if the risks of a successful legal action against the corporation are small enough to objectively justify the risk.

The second is that to maximise profits, corporations must out-compete their rivals. So two things can happen. A business may seek a competitive advantage by reducing the costs of mitigating its environmental impacts: as a consequence of becoming dirtier than its competitors it is able to undercut their prices in the market and increase market share; also by becoming a better proposition to investors as a result of its improved competitiveness and profitability it can improve its capital position, which can then be employed to relative advantage. Alternatively if a business does not take the lead in this way, it will normally be compelled to follow down the same route anyway in order to remain competitive with rivals who are not so environmentally scrupulous.

Thus it is almost inevitable that when regulations are set corporations will take up any slack they are allowed. With very few exceptions it is an entirely predictable and perfectly rational response that they do.

For those reasons, exactly the same response can be anticipated to the criminalisation of ecocide under the terms currently proposed. To the extent that they can control their impacts, corporations will expand the scale of their operations to the maximum allowed under the terms lifted from ENMOD, after allowing what they will evaluate as an adequate margin for error, carefully calculated using risk assessment techniques. Where an activity would exceed the astonishingly generous spatial limit proposed, the response will simply be to carve it up into a number of discrete projects, judiciously separated in time and space, so that each one remains lawful under the ecocide measure.

Clearly this is the very opposite of what is required, and what is demanded in response to our plight. It will not curb corporate excess, or to the extent that it does so, it will only do so marginally. The flow of environmentally destructive products and services will continue more or less unabated, so consumer behaviour will continue just as self-destructively as before.

As a concept, the criminalisation of ecocide is essential. In the form it has been proposed, it is a dream come true for the corporate world. To grant corporations exactly the same rights to 'modify' the environment as military forces at war is an astonishingly misplaced idea, and the very opposite of what is called for.

Perhaps it is easy to overlook that the defining purpose of the military is to kill and maim in large numbers and to destroy physical matter of all descriptions - including ecologies - on a vast scale when considered necessary, and often quite indiscriminately.

In most cases it does so entirely lawfully - at least under the dominant legal system which prevails, Iraq 2 being an exception. It should not be forgotten that the law in this respect is so powerful that members of armed services may find themselves legally compelled to carry out the most horrendous acts absolutely against their conscience and may possibly face death - lawfully executed - for failing to do so.

Why, then, are environmentalists campaigning to hand corporations the implied right to cause equally as much environmental damage, in peacetime, just to make a profit?

The scale on which it is proposed that this be allowed is also stupefying. Allowing corporations the right to destroy the environment on an equivalent scale to military forces appears particularly misconceived (unless you are a shareholder and care for nothing other than your own wealth and comfort, in which case it may seem a splendid idea). The effect will be to legitimise ecocide on a scale that is anything less than 'hundreds of square kilometres', whatever that may mean. The term was almost certainly deliberately ill-defined in relation to ENMOD (assuming that to be its source) for reasons of diplomacy, to allow enough wiggle room so that perpetrators could be allowed to evade sanctions where that is thought to be politically or strategically expedient. Just as with existing crimes against peace – Augusto Pinochet walked free; Saddam Hussein didn’t.

Acts as outrageous as the bombing of Dresden and the battlefields of the Somme would probably be entirely legal under the terms ascribed to ENMOD. To propose the same, entirely unbidden, for corporate acts seems to be an own goal of gigantic proportions. Spatial limits are really not difficult things to define more precisely.

The ultimate tragedy is that had corporations been invited to name their own terms, they would never have dared to have demanded nearly so much.

Certainly not equivalence with the military, not out of fear, but certain knowledge of the public opprobrium they would draw down upon themselves. Or at least they would not have done openly - what happens behind closed doors is a secret known to very few.

Yet this being handed to them on a plate: that corporations can cause equally as much environmental damage as the military. Voluntarily and entirely spontaneously. As a gift from the blue by its opponents, in a well-intentioned effort to curb the very thing it will encourage.

That is why the champagne will be flowing royally in corporate boardrooms up and down the globe. In some circumstances it seems you just can't loose.

Thankfully, though, the situation is not irretrievable. It merely calls for better conceived terms to be substituted. A discussion of that must wait for another occasion.

More generally it calls for some serious work to be done on the translation into policy before this campaign is taken further forward. Properly framed, the criminalisation of ecocide can make a critical difference in reshaping society, and that is what must now be delivered.

Media Coverage of the Ecocide Mock Trial

This is just a quick posting to flag up the excellent coverage given to ecocide mock trial which took place at the Supreme Court in London on 30 September.

Pride of place has to go to the Guardian as it includes a stupendous 6 minute video which really conveys the import of what transpired and the critical moments of the proceedings.

The mock trial received surprisingly positive coverage in no less than the Financial Times, as well as the Independent, having also been previewed by the Guardian here.

It prompted an excellent discussion of the crime of ecocide in CNBC Business.

The trial received coverage in various corners internationally, including Brazil, France, Germany, the Netherlands, and, of course, cyberspace. Links to all of these can be found on the Eradicating Ecocide website.

It seems reasonable to conclude that if a newspaper with the gravitas of the FT is prepared to devote the attention of a journalist for the best part of day to such an event, the campaign to criminalise ecocide is beginning to make an impression in the high places where power resides. And clearly many other places besides.

Ecocide: a corporate anathema

'Eradicating Ecocide highlights the need for enforceable, legally binding mechanisms in national and international law to hold to account perpetrators of long term severe damage to the environment. At this critical juncture in history it is vital that we set global standards of accountability for corporations, in order to put an end to the culture of impunity and double standards that pervade the international legal system.'

So says Bianca Jagger in her endorsement of Polly Higgins’ book, Eradicating Ecocide. And rightly so.

If corporations are not immediately reined into prevent them from persisting in acts which, directly and indirectly, are the primary causes of our global ecological meltdown; in continuing to maintain and aggressively promote a corporate and societal culture which prioritises profits over all other concerns and obligations so as to be able to persist in perpetrating those acts to those ends, then we must anticipate a substantial destabilisation of the biosphere in the not too distant future, one which will make life untenable for many species and cause immense, almost unimaginable, human suffering.

To give but one example, as James Hansen says, if the Keystone XL Pipeline is approved, it is game over. (Use the tag or search for previous posts on Jim Hansen, and for inspiration check out the end of the one paragraph version of his c.v. accessible here)

Be that as it may, we already know far more than enough to be certain that the corporate world will oppose the criminalisation of ecocide to the absolute limits of its power, a power which in practice appears almost irresistible.

The evidence for that is overwhelming - it is irreconcilably hostile to any limitation placed on its freedom to operate and resists implacably with every means at its disposal. Ever since they were introduced, it has been waging a concerted and heavily-resourced war of attrition to roll back the advances made in environmental protection in the second half of the last century. By now it is quite clear that it is winning substantially.

We simply could not be in this most dire of predicaments were that not true. On every front, in every aspect of our multi-faceted environmental calamity, be it deforestation, greenhouse gas emissions, loss of biodiversity, water, soil or any other you care to look at, the damage is being done, facilitated and enabled by corporate activity, and almost always on a scale which is still ramping up despite the known impacts that will result and their indisputably disastrous consequences.

Yet in every example, almost without exception, you will find that all attempts to stop, limit or mitigate the damage and its consequences are being powerfully opposed by the corporate lobby, almost always by the very corporations which undertake the activities concerned and profit by them. There are some noble exceptions, it is true – Patagonia being the most outstanding example, the principled companies aiming to be a part of the solution rather than of the problem - but most are minnows in the grand scheme; the general picture is as described.

Environmental protection measures have been under constant attack on every front: the doctrinaire, alarmist and irrational - that things will go very badly economically and hence very badly in general if market forces are not allowed free rein; direct attacks on legislation and the legislative process pressing for the watering down or repeal of existing measures and opposing new proposals; undermining the credibility of the scientists whose work underpins environmental regulation, and, most notably over climate change, well-documented attacks on the science itself via devices which employ bogus institutes, maverick scientists and pseudo experts to mislead and bamboozle the public; by drawing the teeth of regulators through similar assaults on the regulatory bodies concerned, attacking their funding or even their very existence (currently on the Environmental Protection Agency no less), through tying up their limited resources in legal challenges, or merely by being able to intimidate them into submission using the probable costs should they decide to so challenge.

Lobbying funded on an gigantic scale, together with the manipulation of public perceptions through the mass media are ubiquitous weapons in this war, and the influence now wielded over politicians, particularly those in power, seems to have reached a degree where their independence and representational purpose is very seriously in question.

One has only to look to what is currently unrolling in America, the extraordinary transformation of President Obama, The Citizens’ United decision by the Supreme Court last year (covered by Common Cause here and here, and by the New York Times here), and the assault on the continuing existence of the EPA to see how things panning out.

In the UK too, the process seems relentless, with attack after attack, be it frontal or guerrilla, by the Government itself on existing environmental protection measures, justified on almost any context imaginable. Spending cuts, economic efficiency, deregulation, public benefit, ideology...

Whether we ever lived in democracies is open to question; what seems clear is that in practice the dominant powers in the developed world have now morphed into corporatist states and superstates, in which the superficial trappings of what was never anything more than what is euphemistically termed 'representative democracy' have become a mere puppet show to distract an impotent and gullible populous, deliberately hypnotised by a constant stream of diversions and banality; a populous which has been intentionally socialised and educated to be incapable of thinking sufficiently deeply to comprehend the issues, what is happening, how it will affect their lives and their families, to even take an interest in its own vital interests, let alone react intelligently to what it perceives, while remaining emotionally incapable of doing so anyway, should that unlikely occurrence actually happen. That our collective response to climate change can objectively be described as insane would alone seem to prove all of this beyond dispute.

So the corporate world as it currently exists will never be anything but implacably hostile to the criminalisation of ecocide, be its opposition overt or covert. Its credo is the entirely unfettered, globalised free market, where all and everything is decided by market forces and nothing else, where everything is commoditised without exception. If we still have a regime where the costs of environmental impacts can continue to be externalised and discounted more or less totally, it is no accident. It is the result of sustained, massively resourced and extremely sophisticated politicking by the corporations, conducted over very long time frames and on a global scale, and which continues with increasing vigour even now, as we watch our future (or at least a benign one) slipping relentlessly into oblivion.

Yet, bizarre as it may seem, to the extent that the corporate world can ever be reconciled with the prospect of criminalising ecocide, once it has understood the terms it is being offered, the corks will be flying in boardrooms around the globe.

The reasons for this unlikely and counter-intuitive conclusion must wait for the next substantive post - the one immediately following being a quick update on coverage of the mock trial, which seems to have been very well received.