Tom Brenan (Wild Law UK) and Carine Nadal (Gaia Foundation/Wild Law UK) 
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After appearances at the London Green Fair and Buddhafield Festival, the Wild Law UK tour of summer events continued with its tent pitched at the Resurgence Summer Camp held at the Green & Away site near Worcester from 26th to 29th July. Green & Away is the UK’s only tented conference centre and with woodburning showers, compost toilets and much of the food sourced from a nearby care farm, is a wonderful example of sustainable living in an inspiring setting.

Invited to run a workshop on the Friday afternoon, we had chosen to explore ‘Living Earth Law’. This would outline some Earth Jurisprudence principles and consider how they might be applied in our daily lives. The aim was to demonstrate that Earth Jurisprudence was not just about written law but a way of life. Unsure about how such a session would be received it was great to have more than forty people attending in the main marquee to listen and ask questions. The second part of the workshop saw many of them participate in our practical exercise envisioning how Earth-centred food, education, money and energy systems could look.

Although unplanned, an Earth Justice theme began to emerge during the camp, as Polly Higgins spoke about the Eradicating Ecocide campaign and Helen Moore debuted her poem “Earth Justice”- a response to the Ecocide mock trial. This also tied in well with Satish Kumar’s emphasis on the relationship between Soil, Soul and Society with a need for a change in personal and societal behaviour to become more ecologically aware. In addition, Nicola Peel’s talk offered practical steps to restore environmental damage by pollution that people 
can and are taking.

This was a great opportunity for Wild Law UK to reach out to new people and to discuss and share ideas. There is clearly an appetite for change. The camp demonstrated to us the potential of alternative forms of messaging such as poetry and storytelling. We left feeling very creative. A huge thank you to Resurgence Magazine for an inspiring camp. Next stop, Wilderness Festival.


 
 
Phil England, freelance journalist 5 February 2012.

Some 50 people crammed into the Tent City University outside St Paul’s cathedral earlier today to take part in a discussion about the reasons for the continuing failure of the UN talks. The latest round of talks in Durban, South Africa in December ended with little more than voluntary agreements and plans to do something at some point in the future. Friends of the Earth International produced a pithy analysis of the outcome entitled Disastrous “Durban Package” Accelerates Onset of Climate Catastrophe.

George Monbiot was the panel’s star attraction. After Durban he wrote a column in The Guardian which asked: “So why is it so easy to save the banks and so hard to save biosphere? If ever you needed evidence that our governments operate in the interests of the elite, rather than the world as a whole, here it is.”

The event was organized by the Occupy LSX Energy, Equity and Environment working group who had previously agreed a statement on the Durban conference which pinned the blame of the ongoing failure of the UN climate talks to adequately address their central mission of “avoiding dangerous anthropogenic interference with the climate system” on the influence of vested interests. The problem was therefore systemic and required systemic solutions. The group’s statement supported the outcomes of the World Peoples’ Conference on Climate Change and the Rights of Mother Earth and called for the UK government to introduce “a declaration of rights for all species and protection for the earth systems, ecosystems and habitats that support them “ and legislation to make ecocide a crime.

If systemic reform of the UNFCCC system does not come quickly, and adequate solutions to keeping within our rapidly diminishing carbon budget not implemented, then it will be a walking zombie, that has demonstrably failed in its task. Would adopting a Declaration on Earth Rights and other international legal measures such as outlawing Ecocide and respecting planetary boundaries help fix a broken system?

Claire Morris who had traveled across African to Durban as part of the Climate Justice Caravan listed a number of examples that she had witnessed of special interests interfering with the process in Durban.

Asad Rehman of Friends of the Earth had been in Durban and did not have a good word to say about the outcome. Civil society, he said, had to be involved in the process just to make sure the outcome was not as bad as it could otherwise have been. The glimmer of hope in the talks did not lie inside the conference centre but in the Occupation outside the centre with its daily general assemblies based on consensus decision-making. A large and vociferous group of civil society representatives also demonstrated their deep displeasure with the talks by occupying the conference centre briefly.

Asad celebrated the diversity of opinions that the global climate movement had when it came to solutions, but George Barda, a litigant in person in the case between Occupy London and the Corporation of London, argued that when it came to addressing the climate problem, a global solution was needed and the solutions favoured by the 99% needed to be clearly articulated if we were to have any success. Thankfully, that was one of the tasks that Occupy as a global movement had been working on - constructing a common narrative that links the environmental, economic and democratic crises and advocates a shared vision of solutions and a better world. 

 
 
by Andrea Gear
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The UK Supreme Court hears appeal cases of huge constitutional significance, the outcomes of which often ricochet through the political arena, challenging the status quo, and shifting societal perceptions. It is fitting then, that on 30th September 2011 this grand building in Parliament Square provided a stage for the hearing of Regina v Bannerman & Tench. In this mock trial, two CEO’s stood accused of aiding and abetting the crime of ‘ecocide’.

Currently just a conceptual crime, ecocide has been submitted to the UN for consideration as the fifth crime against peace (alongside genocide, war crimes, crimes of aggression and crimes against humanity). For those of you not yet familiar with the concept, ecocide is ‘the extensive damage, destruction to, or loss of ecosystems of a given territory……to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished’.

It was apparent that an historic day was going to unfold when the prosecuting QC Michael Mansfield swept into the courtroom with a copy of Polly Higgin’s book ‘Eradicating Ecocide’ tucked under his gown. With the Jury sworn in and a suitably grave-faced Judge in place the indictment was read aloud, detailing three counts of ecocide contrary to the (fictional) Ecocide Act 2010. The crimes involved one scenario identical to that of the Deepwater Horizon oil spill, and two incidents relating to the extraction of oil from tar sands. The particulars of all three counts involved the death of, and risk of injury to birdlife. The accused pleaded not guilty, generating a bout of jeering from the public gallery!

The first hurdle was encountered almost immediately when the defence asserted that the fictional indictment had been wrongly interpreted from the imagined statute. Fortunately the judge overruled this objection as he was of the opinion that Parliament’s intention was clear and unequivocal in this regard! Despite the pretend criminals, the fabricated evidence, a voluntary jury and not a pen stroke from the legislature, there was genuine frustration, anticipation and tension in the gallery, and a tangible feeling that there was very much something at stake.

For the next few hours the prosecution and defence cross-examined (real) expert witnesses, and ridiculed and undermined each others’ arguments. There were moments of derision when the defence had to ‘scrape the barrel’, arguing that thousands of dead oiled birds may have encountered the oil post-mortem, and that oil wasn’t necessarily the cause of death. But there were also moments of concern when each of us in the courtroom realised that some arguments, although absurd to an ecologist, might sound plausible to the average juror. For example, the defence argued that oil leaks naturally from fissures in the Earth’s crust, and is a natural product broken down by microbial activity, implying that ‘a little extra’ in the oceans as the result of a spill is not really all that significant. The defence even tried to put a positive spin on the crime his client was accused of, arguing that after an oil spill, where a no fishing zone is declared, the fish stock return to a higher than pre-oil spill level!

The prosecution’s attempt to bully the accused into a vile anti-nature outburst was stunted by the CEO’s sickeningly humble and deeply remorseful tone (he was an excellent actor!). Prosecution points with the Jury were soon regained however, when the accused callously remarked that in order to make an omelette a few eggs had to be broken. QC Michael Mansfield quickly retorted that this was indeed unfortunate for the eggs!

After a tense few hours the court adjourned to allow the jury time to reach a verdict. Meanwhile, in the Lawyer’s Suite, silks and wigs were tossed aside for tea and cake, and lively debates erupted around the room. Discussions were a strange hybrid of legal jargon, ecology, and raw passion, but the common theme was progress. Progress underpinned by a recognition that our political, economic and social systems need to be permeated with an ethos of earth jurisprudence and recalibrated accordingly.

Returning to the courtroom to hear the verdict delivered the muttering crowd expressed many doubts about whether it would be a victory for Gaia. This was not simply because the two leading barristers were equally matched intellectual titans, but because the material was complex and controversial, the situation novel, and the jurors were not a horde of eco-warriors. On the first count, concerning extensive damage to the ecosystem as a result of the oil spill, the accused were acquitted (audible gasps of disbelief!). On the second and third counts, concerning death and risk of injury to birds through tar sand extraction activities they were found guilty (audible cheers!).

The crowd, which had amassed to over 100 by this point, then migrated to the Supreme Court library for a press conference. This was a particularly fascinating part of the day, in which burning questions were answered, and rousing speeches delivered. Polly Higgins likened her struggle to that of William Wilberforce, Michael Mansfield called upon all of us, as trustees of the planet to maintain the trust, and I heard Ghandi’s wise words ‘be the change’ circulate the room more than once. I cannot speak for all who were present, but for my part I left the UK Supreme Court convinced that if the UN recognises ecocide as an international crime (one small amendment to the Rome Statute, requiring 86 signatures is all that is required) then the rules of the game will change rapidly. This will initiate a shift in the corporate world’s collective consciousness and subsequent actions – a shift that Earth and her people so desperately need.

Further discussion….

Below I have summarised some of the main threads of discussion I picked up on throughout the day. Feedback on these points via the blog would be most welcome. There is also a link to a blog by a Guardian journalist, followed by some interesting comments from the general public.

At the press conference concern was expressed that the prosecution had found it far too easy to trivialise the crime of ecocide and create a false sense of perspective. For example, one of the CEO’s was accused of causing the death of over 1600 birds, after they landed in his company’s toxic tailing pond. The defence argued that when one considers the number of birds eaten by cats each year in the US (100m) or the numbers that die on collision with windows (900m), this number is negligible. To most of us this is an absurd line of argument. Millions of people die from starvation each year, but no lawyer would dare argue that this negates the seriousness of the 2,000 people poisoned by a company dumping toxic waste. Nonetheless, concern remains that a gullible juror would be easily led with such statistics.

Another widespread concern was that the level of ecological understanding required from the lawyers, Judge and Jury, in order for nature to have a fair trial, is considerably higher than those groups typically possess. Add into this equation the chemistry of toxic dispersants, meteorological oceanography, avian migration and nutrient cycling in boreal forests, and it becomes difficult to see how the communication dynamics between expert witness, barrister and Jury might work. However, it was generally agreed that if such crimes of ecocide were really to go to trial the process would be considerably longer than a day, and parties would be well advised.

Aside from the technicality of the evidence and its contextual framework, certain wording of the Ecocide Act 2010 also generated some problems for the prosecution. It was stated early on by the judge that the jury were to understand ‘extensive damage’ to ecosystems against 3 criteria; size, duration, and impact. Unfortunately this gave the defence too much manoeuvrability. Post-trial I spoke to the head juror, who informed me that the defence’s closing statement had convinced them that the size (250 million gallons released from a point source), duration (4 months), and impact (highly debateable) of the oil spill did not amount to ecocide. This led to an acquittal on one count, which although disappointing helped to flag up the weaknesses in the Act. Polly remarked that this was an extremely positive aspect of the exercise, as she could redraft the proposed legislation accordingly.

In court, the concept of a duty of care to the environment wasn’t mentioned, and the prosecution had no interest in proving negligence. This was because the trial proceeded on the basis of strict liability – that the accused was liable for the damage caused regardless of personal fault. Polly Higgins explained her reasons for putting the company executive in the stand rather than the company itself. Fining a company for flouting environmental regulations under civil law will not be sufficient deterrent she argued. Profits gained from destructive practices are too lucrative for such practices to be derailed by nominal fines, and a monetary punishment will be passed on to consumers of that product, which sadly, in the case of fossil fuels, is all of us. However, the threat of a prison sentence is not one that could be easily ignored by a company’s top personnel, and the universality of the crime would mean that the UK had jurisdiction to prosecute, regardless of where the crime was committed. By imposing this superior responsibility, business leaders could be encouraged to adopt the precautionary principle, rather than throwing money at the aftermath. All agreed that preventative measures to avoid an incident of ecocide ever occurring is an optimal solution for all involved, particularly the planet.


 
 
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