On Monday 23 May 2011 a debate hosted by Wild Law UK was held at UCL moot court - Polly Higgins, the environmental rights lawyer turned campaigner, began the discussion with a brief introduction to the proposed international crime of Ecocide:

“Ecocide is 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.”

By criminalizing Ecocide we would be forced to reconceptualize how we interact with the Earth. So instead of utilitarian cost benefit analyses that view the Earth as a commodity to be owned, sold, and exploited we would come to see the Earth as a living being with its own intrinsic value for which we must take responsibility. Thus, the exploitative nature of property law could give rise to a responsible form of trusteeship law.

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The debate then turned to whether or not Ecocide should be a crime of strict liability. Generally to convict someone it must be shown that they both committed the criminal act, and that they had criminal intent (mens rea in the legal jargon).

However, a crime of strict liability only requires it to be proven that the act had been committed, not the intent.

Polly proposed the motion for three reasons:

1: Ecocide is a crime of consequence – the seriousness of the crime is so grave that we need not try and prove intent. As Polly pointed out it is unlikely that the CEOs of BP gather together and discuss how they are going to destroy the environment that day, rather, they ask how they are going to maximize profit. Therefore, there isn’t intent to destroy, even though destruction may be one of the outcomes of their actions – and whether or not they knew this doesn’t matter – once you’ve caused Ecocide there is no going back – no amount of money can revitalize the devastated Gulf Coast for example.

2: There should be no compromises with regards to the position of whether or not a perpetrator of Ecocide had sufficient knowledge. Again, it’s too serious.

3: It is a preventative measure – meaning that it creates a pre-emptive obligation to not even consider facilitating activities that may cause Ecocide. It’s not a question of being precautious precisely because it is out of the question. So bankers would have to think twice about funding certain activities, Heads of States about condoning certain activities, and energy companies about carrying them out.

Polly made the analogy with death by dangerous driving – even though no one sets out to accidentally run someone over the point is that they have so dramatically departed from the standard of care that their lack of intent does not matter. The same, she argued, can be said of Ecocide.

David Hart QC, the environmental lawyer and advocate of wild law, opposed the motion for two reasons:

1: Prudence. Criminalizing Ecocide is already a radical idea so we need to ensure the international community is as receptive as possible to adopting it. Asking that Ecocide be a crime of strict liability would make it even harder to swallow.

2: Principle. If Ecocide were to be made the Fifth Crime Against Peace then it should be a similar crime to the other four (Genocide, Crimes Against Humanity, War Crimes, Crimes of Aggression) none of which are strict liability – all require intent.

David asked why Ecocide should be any different. He also added that with regards to the mental element (intent) it is already there in most cases of Ecocide – for example, in the Athabasca Tar Sands energy extraction companies are going there with the intent of removing the oil and not mitigating the impact of doing so – this should be enough to convict them were Ecocide a crime.

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It was a fascinating and hard-hitting debate. As for the vote: Polly – approx 35, David – 4. Clearly people agreed that Ecocide is just too devastating, too disastrous, too tragic, for it not to be a crime of strict liability.

By Rob Holtom