Getting the law in order

| 30th April 2019
Polly Higgins
Oliver Tickell met Polly Higgins, remarkable campaigner and founder of Mission Lifeforce, shortly before she died this month.

-

Polly Higgins, barrister turned environmental campaigner, was a woman with a mission. And one thing she can't be accused of is not thinking big enough.

Her aim was simple: to create a new international crime of ecocide - the mass destruction of ecosystems - mirroring the existing international law against genocide - the mass destruction of peoples.

A shorter version of this interview was first published in Resurgence & Ecologist magazine.

Hostile speeches

If you're sceptical about her chances of success, or the impact such a law might have, there's one person who is taking it all too seriously: John Bolton, US President Trump's hawkish National Security Advisor, already known in the UK as President George W Bush's front man, justifying the Iraq war on British TV and radio.

Last September Bolton denounced the prospective ecocide law in a keynote Washington speech, declaring: "In the years ahead, the court is likely only to further expand its jurisdiction to prosecute ambiguously defined crimes.

"In fact, a side event at the Assembly of States Parties recently included a panel discussion on the possibility of adding 'ecocide', environmental and climate-related crimes, to the list of offenses within the court's jurisdiction.

"And here we come directly to the unspoken but powerful agenda of the ICC's supporters: the hope that its essentially political nature, in defining crimes such as 'aggression', will intimidate US decision-makers and others in democratic societies."

Polly acknowledged the pushback: "But it's just part of the story about how we move forward. Bolton's main thrust is anti-ICC. But the US has no standing at the ICC as they are not members. So it's all just noise and threats. I'm flummoxed about why Bolton even mentioned it. It's a distraction."

Not that efforts to frustrate ecocide legislation at the UN have been limited to hostile speeches. There were also mysterious last minute room cancellations at the ICC's December Assembly in New York, sending bewildered delegates and journalists running along UN corridors to hastily rearranged venues.

Gathering pace 

Front cover
Out now!

The most likely explanation of Bolton's speech and the UN shenanigans is a simple one: that moves to create an ecocide law are gathering pace, presenting a growing threat to a world economic order founded on the wholesale destruction of nature.

Under the Rome Statute, a new international law is introduced once notified as an amendment to the UN Secretary General by a single state. Once supported by seven eighths of ICC member states, it becomes law. And support among UN states, Polly said, is strong if - so far at least - under wraps.

Not that there is anything easy about the task Polly set herself. Even getting a single state to file the required amendment is a long, hard slog, and specially when you are opposed by the full force of US diplomacy (and dirty tricks).

But she was confident that an ecocide law will be tabled soon. When we met in her home town of Stroud in Gloucestershire, she was about to head off to The Hague to meet ministers from several small island developing states who need an ecocide law as part of their own national self-defence against climate change and sea level rise.

Polly said: "There is a mountain of stuff happening internationally behind the scenes that I cannot go into." She added that 2019 may prove to be a "watershed year".

Ecocide law

But why exactly do we need an ecocide law? After all we already have a host of international environmental laws and treaties, for example the Paris Agreement on Climate Change, the UN Convention on the Law of the Seas (UNCLOS), and the Biodiversity Convention.

"You need to understand the distinction between civil law and criminal law. All these treaties are effectively civil law among states. If one state has a dispute with another over a breach of treaty obligations, it's a bit like a boundary dispute between neighbours.

"You have to go to court and seek your remedies at your own expense. Your neighbour won't be prosecuted because there is no crime. That is, unless he takes a swing at you one day and gives you a black eye - then you can call the police because that is the crime of assault. They can be arrested and prosecuted by the state and if they are convicted they can be fined or sent to prison.

"When a crime is committed it ceases to be a purely personal matter. It becomes a responsibility of the state to enforce the law for the protection of society.

Fracking

"So take an activity like fracking. In 2017 I took a road trip through North Dakota and Northern Montana to see the fracked fields and communities. It was like driving into hell.

Huge tracts of land that were once in a natural state are now broken up with nodding donkeys, flares, pipelines, roads, trailer parks ... The atmosphere is acrid with the toxic chemicals and combustion products. You can taste it in your mouth.

There was all this infrastructure to allow huge trucks to bring in hundreds of thousands of gallons of toxic chemicals and water, but the roads were built to collapse the moment they had done their job with ruts and potholes almost big enough to swallow up our car.

It was so shocking it convinced me we must never do it here in Britain. People had to drink bottled water, almost everyone was ill, the doctors were overloaded, and most of them were unpaid volunteers as no one had the money to pay them.

"Indigenous communities have been displaced, forcibly removed from their land, unable to drink the water, with methane coming out of their taps. Signs by the roadside read 'Help our children not to commit suicide'.

New wells

"Crime had escalated with countless rapes, robberies and burglaries. There were few jobs. Communities were ripped apart - anyone taking a job would be ostracised. Housing prices had collapsed. Flaring was going on day and night. It was truly horrific.

"And yet UK ministers have signed off on it. In the US there are 35,000 fracking wells. And our government announced four years ago that it has an 'aggressive expansion policy' to build 45,000 to 60,000 fracking wells in England alone!

"We just don't have the land! We may not have the geological resource either - but the less oil and gas you find, the faster you have to sink new wells.

"Now those fractured communities may have some scope for civil litigation against the fracking companies. But they cannot stop the activity itself. Going to law is very expensive, if there's a payout it always too little, too late, and the companies may have gone bust before they ever pay.

"And all the time the business carries on as usual. Civil litigation is not fit for purpose for environmental destruction.

'Missing law' 

Look at the case of Texaco / Chevron in Ecuador. The 30,000 indigenous people in the Amazon that had been poisoned by oil spills and illicit waste dumping actually won their case in Ecuador's highest courts in 2011, with a $9.5 billion restitution order. 

But Chevron never paid up and it looks like they never will. So what we have to do is to go one step above civil law and make fracking, or the impacts we know fracking imposes on communities and the environment, a crime! In a nutshell that is the rationale for an ecocide law.

"With ecocide recognised as a crime it is no longer down to individuals to try and enforce the law in civil courts. That becomes a responsibility of the state and the victims no longer have to pay.

This is what is known as 'missing law' - law that is obviously needed but is not there. And where you have missing law you get injustice.

With an ecocide law in effect, corporate offences could be prosecuted, with directors and officers held personally liable; governments would not be able to give out licences or ministers could be prosecuted; finance would not be forthcoming - no one will want to support criminal companies and the banks and financiers would also be liable to prosecution.

Superior responsibility

"In the first RBS meeting after the UK government bailed the bank out and took its 85 percent stake, there was a press conference and the CEO was asked, 'why are you financing the exploitation of the Athabasca tar sands?' And he just laughed and said, 'it's not a crime!' That's what we have to change.

"And we have to go for 'superior responsibility' - holding the senior officials, CEOs, heads of state, ministers, directors, to account where there has been a reckless disregard on climate and nature, or even deliberate misinformation."

The idea for ecocide law first came to Polly at a side-event at the 2009 climate summit in Copenhagen. After she had given her speech someone stood up and spoke of the need for something to stop the mass destruction of ecosystems.

"And I found myself thinking, 'yes, it's there for genocide, to stop the mass destruction of people, but not for ecocide.' And that was the starting point. I spent three months going back to first legal principles, then I submitted a fully written up legal proposal to the UN law committee.

"I naively though they would do something with it. But they did nothing. And then the Guardian somehow heard of my work and asked me to write about it. They delayed publication for a week so I could put up a website, and then it got 28,000 hits that first weekend alone! Sometimes an idea whose time has come can land in a big way!"

Media coverage

On the back of the media coverage triggered by Polly's Guardian article a journalist dug out a 1996 UN document that called for an ecocide law, that had been supported by over fifty countries.

"But it turned out that just four countries working behind the scenes had caused it to be removed: the US, the UK, France and Holland. The matter was taken up by Dr Damian Shaw and his students at the UCL School of Advanced Studies, who flew out to the UN in New York and found two huge files in the basement that told the full back story.

"We found that serious drafting of an ecocide law had been in progress for over ten years from 1985 to 1996 when it was scuppered. And the fascinating thing was that that my own drafting of an ecocide law actually covered all the same issues that had been identified in those documents, with the addition of 'climate ecocide'.

"All it needed was a lawyer to put their mind to it, to reach the same conclusions.

"We also found that Russia had protested in powerful terms when the initiative was discarded - and it's only because they insisted the documents all went on the record that we even know about it today. Also UN staffers wrote up their own accounts of it all in documents that they logged into the basement.

Long game

"Putting together all the pieces the UCL team found that the proposal was the victim of corporate lobbying from four sectors: fossil fuels, agro-industry, nuclear and big pharma, who were being represented by those four countries."

As well as playing the 'long game' at the UN, Polly and her team are working to support environmental campaigners in the here and now.

"We have created our Mission Lifeforce website to build a network of Conscientious Protectors - thousands of people who are prepared to be arrested  in defence of our planet against ecocidal activities like fracking.

"Most charges, like obstruction and trespass, attract minimal fines, but we have also seen more serious charges brought against activists - like Public Nuisance which can actually attract a life sentence!

"That makes it essential for protestors to have a strong support network, and to be in a position to defend themselves within the framework of human rights law.

Conscientious Protectors

"The way we see Conscientious Protectors is like Conscientious Objectors in war. They are attempting to protect society at large where the government is not giving that protection. People are becoming CPs as a matter of conscience, because they can't just stand back and allow the mindless destruction of our air and water.

"Many COs went to prison to establish that principle which is now enshrined in European Convention on Human Rights Article 9, and UN Declaration on Human Rights Article 18. This is a universal right, that you can seek reliance on in a criminal court, to break the law to prevent a more serious crime.

"And there's an additional purpose in setting up Mission Lifeforce, to raise funds so ministers from Small Island Developing States can make it to these UN and ICC meetings. The small fee people pay to register as CPs creates an international funding pot we can use towards the £50,000 a year cost of delegates' travel." 

The whole operation still runs on a shoestring, but Polly never let that get her down. "Of course it would be nice to have more money, but then look what we have achieved with next to no money at all!

"We have largely (if not entirely) decoupled ourselves from the idea that money is necessary to make things happen. All our work is carried out pro-bono and these contributions have a cumulative value of millions of pounds!

Political mission

"But yes, there are difficulties. Our mission is a political one so we cannot be a registered charity under UK law, and this means many trusts and foundations won't contribute.

"WWF have had me in their international HQ talking to their big funders, and they say what I'm doing is great. But no money was forthcoming.

"I have addressed the Greepeace International board of directors and I thought they loved what we were doing. But then it turned out that the grant we were hoping for was blocked by a single board member."

So will this [2019] be the year when everything changes? "Watch this space. Every year there is an ICC Assembly, one year in New York, the other at The Hague, where the next takes place in 2019.

"If we manage to make a big splash at that meeting then we are on track!" Meanwhile Polly is looking forward to taking a break from it all: "I have my timeline. In a few years I want to be on a Harley Davidson travelling the world!"

Severe illness

This interview was conducted for Resurgence & Ecologist's current May/June issue. News of Polly's severe illness, a highly aggressive, fast moving form of lung cancer, reached me as a complete surprise barely a month ago.

When Polly and I had met at her campaign offices in Stroud in late 2018, she was full of life and positive energy, and had so much to look forward to with the growing international success of her campaign for an Ecocide Law.

Even at the time of her diagnosis she continued to feel generally well, troubled only by what seemed to be minor health difficulties. But by that time the cancer had already spread widely through her body and was beyond the reach of modern medical treatment.

That Polly should be struck down in this way at the age of just 50 seemed both inexplicable and profoundly wrong, almost itself a crime against nature. 

It was incredibly sad for all who knew and loved Polly, and supported her in work, especially her family and close friends. The 'good' news is that she died smiling, on Easter Sunday, taking deep pleasure from news of the highly successful Extinction Rebellion protests in London.

Funeral arrangements

As one friend told me: "She was pragmatic to the end ... as attention on her imminent demise made the campaign suddenly take off: 'If this is what it takes', she said, 'let's go for it!'

"She was tickled pink to see the Extinction Rebellion graffiti on the Shell Centre building last week saying 'FOR POLLY 💚'... and she went with a mischievous smile on her lips (quite remarkable)."

Within an hour of her passing thousands of ER protestors were celebrating her life and achievements, determined to carry forward her campaign for an Ecocide Law - perhaps it will be known as 'Polly's Law' - to completion. 

Polly's funeral will take place at 10 am on Friday 3rd May at  St Laurence's Church, Stroud GL5 1JL. It will be followed by a procession to the Slad village churchyard where Polly will rest on a beautiful hillside overlooking her favourite local pub, the Woolpack.

Funeral guests are welcome to adjourn there for lunch afterwards. Special instructions from Polly are: NO BLACK to be worn, and organic whisky to be served (her favourite will be available at the pub). Wear comfortable shoes - it's an easy walk but a good half-hour to forty minutes from the church to the burial. All are welcome.

Call to Action 

Help realise Polly Higgin's life mission to enshrine the crime of Ecocide in international law.

Protect the planet and future generations of life in all forms by becoming an Earth Protector. Sign up here and pledge a minimum of 5 euros.

This Author 

Oliver Tickell is the author of the report International Law and Marine Plastic Pollution: Holding Offenders Accountable

A shorter version of this interview was first published in Resurgence & Ecologist magazine.

Help us keep The Ecologist working for the planet

The Ecologist website is a free service, published by The Resurgence Trust, a UK-based educational charity. We work hard - with a small budget and tiny editorial team - to bring you the wide-ranging, independent journalism we know you value and enjoy, but we need your help. Please make a donation to support The Ecologist platform. Thank you!

Donate to us here