EARTH LAW

Ecocide: the missing
international crime of our time

Climate Ecocide Independent Preliminary Examination is a collaboration between Ecological Defence Integrity and INTERPRT.

1 Introduction

Earth law is a newly emerging body of law. The cornerstone law is ecocide crime, to prevent and prohibit ecosystem destruction, loss and damage. Ecocide is not yet an international crime. When it is, it shall protect the rights of the natural world, living systems, the global ocean, biosphere, migrant and indigenous of our Earth, current and future generations.

Ecocide crime is required to disrupt State-sponsored industrial immunity and corporate impunity. It can stop the actions that lead and materially contribute to the destruction of the natural world and impose upon States the responsibility to prevent ecocide and protect the public against serious harm. What is rapidly emerging is a body of evidence to suggest that a new 21st century crime is added to ecocide crime: climate ecocide.

A crime always has to identify it’s suspects. For the alleged crime of climate ecocide the prime suspects are the leaders and leadership structures of the largest fossil fuel companies in the world: the Carbon majors.

On December 6, 2018, at a special event in the Hague accompanying the annual Assembly of States Parties to the International Criminal Court, Dutch Minister of Economic Affairs and Climate Policy Eric Wiebes, as well as the CEO of Royal Dutch Shell Ben van Beurden and the CEO of Shell Netherlands Marjan van Loon have been identified as key suspects in an independent preliminary examination into the ‘atrocity crime’ of climate ecocide.

Recent evidence in the public domain such as the Smoke and Fumes Report demonstrates how carbon responsibility can be traced back to the fossil fuel industry. The examination shall scrutinise evidence suggesting that Shell, the 4th largest Carbon Major company in the world, has known for some time that significant adverse impacts arise from dangerous industrial activity. Crucially, evidence has come to light to suggest that there has been dishonest portrayal and withholding of information from the public over a period of 30+ years.

In an age where information is rapid and global, atrocity crimes are no longer geographically restricted or limited; contemporary crimes and their consequences are global and transboundary. Where international agreements have failed to prevent climate breakdown, an international crime of ecocide, under the Rome Statute, is required to prevent catastrophic climate impacts.

2 Ecocide –
The crime of our era

2.1 Earth Law

Earth law is based on the jurisprudential fundamental principle of ‘first do no harm’ – a tenet that has been enunciated in many legal and non-legal texts through the annals of time; such as the Hippocratic Oath Looking at the wider global context, it becomes apparent that there is missing law, in particular criminal law, where a duty of care is upheld by the criminality of the identified harm. Earth rights and Earth duties stand side by side. Just as our human right to life is governed and protected by the crime of homicide (murder) – or when it is collective harm, genocide – so too is the missing Earth right to life governed and protected by the crime of ecocide.

2.2 Definition of the crime of ecocide

Ecocide is the extensive loss, damage or destruction 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 or will be severely diminished.

Ecocide is a crime against the living natural world – ecosystem loss, damage or destruction is occurring every day; for instance, the Athabasca Tar Sands. Ecocide is a crime against the Earth, not just humans.

Further, ecocide can also be climate crime: dangerous industrial activity causes climate ecocide. Currently there is a missing responsibility to protect. Unlike crimes against humanity, ecocide has severe impact on all inhabitants, not just humans. Thus, what is required is the expansion of our collective duty of care to protect the natural living world and all life. International ecocide crime is a law to protect the Earth.

2.3 Ecocide is a missing international crime

Ecocide crime is not new – in fact, Prime Minister Olof Palme of Sweden made explicit that environmental warfare in Vietnam was an act of ecocide committed by the United States at the first United Nations Conference on the Human Environment held in Stockholm in 1972.

A crime against peace, in international law, is (i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances; (ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i). (Principle VI). This definition of crimes against peace was first incorporated into the Nuremberg Principles and later included in the United Nations Charter. This definition would play a part in defining aggression as a crime against peace. It can also refer to the core international crimes set out in Rome Statute of the International Criminal Court, (genocide, crimes against humanity, war crimes, and the crime of aggression) which adopted crimes negotiated previously in the ‘Draft Code of Crimes Against the Peace and Security of Mankind’ (‘The Draft Code’).

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Widespread destruction of the natural environment existed in earlier drafts of the ‘Draft Code’ as a stand-alone crime. In 1996 ecocide / environmental crime as a stand-alone crime were removed from the ‘Draft Code’ (subsequently renamed the Rome Statute). Article 19, ‘International Crimes of State’, of the draft Articles on the Responsibility of States for Internationally Wrongful Acts was also removed in 1996. (Eradicating ecocide – the history)

‘Crimes Against the Peace and Security of Humankind’ presupposes that crimes can occur during peace-time, and as ecocide crimes are usually committed in peace-time it is suggested that ecocide must therefore also be included as an atrocity crime.

There is currently no crime of ecocide. In terms of enforcement on environmental and climate issues we have at an international level numerous agreements and treaties. None of them are enforceable by way of international criminal law.

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Soft law, like the Paris agreement, is unenforceable. More than two decades of climate negotiations have not succeeded in preventing ecocide.

Civil law, where we find most environmental regulation, also does not protect us. It is mainly concerned with ownership rights and commerce and requires a complainant to sue. Suing companies is expensive and difficult. Corporations simply budget for it and continue to pollute. Civil litigation only takes us so far; it neither prevents nor prohibits.

Only criminal law deals with justice. Under criminal law, individuals of superior responsibility can be prosecuted, creating a genuine deterrent to ecocide – and genuine protection for the Earth and communities.

The top tier, is the tier of Justice; here the State is obligated under criminal law to prosecute alleged offenders. Individuals are held to account in a criminal court of law at a State level and for 123 States, at the International Criminal Court. This is where there is missing law – without a crime of ecocide, society remains unprotected, climate change and ecosystem destruction through the continuance of State sanctioned industrial immunity. Thus, there is a justice deficit.

2.4 Climate ecocide

Ecocide crime is a 21st Century crime. With a new crime come new challenges. How do we best protect the public and our Earth from ecocide and how do we protect against climate breakdown? Unlike international atrocity crimes of the 20th Century, the challenges we meet today are somewhat different: we have the challenge of significantly abating the escalation of greenhouse gases; we have the challenge of holding senior officials in corporations to account for their decisions; and we have cumulative consequences that go way beyond war-time activities in terms of scale, duration and impact. Governments across the world have yet to impose a global duty of care for both the public and the Earth. To do that requires ecocide to be upheld as an international crime.

Climate crime is the major challenge of our time. The primary suspects are the Carbon Majors, as is established by the Carbon Majors Dataset reports. The Dataset provides cogent evidence of the central role of the top 100 oil and gas sector producers in global greenhouse gas emissions, known as the Carbon Majors. The most recent Carbon Majors report ranks Shell as one of the largest in terms of cumulative emissions (1988–2015). If fossil fuels continue to be extracted at the same rate over the next 28 years as they were between 1988 and 2017, says the report, global average temperatures would be on course to rise by 4°C by the end of the century. This is likely to have catastrophic consequences including substantial species extinction and global food scarcity risks.

3 Underlying facts
that establish the elements
of a crime

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The elements of crime

3.1 The act

Human activities are estimated to have caused approximately 1.0°C of global warming above pre-industrial levels. Anthropogenic Carbon dioxide (CO2) emissions is a primary contributor to global warming. Accumulated atmospheric CO2 in the atmosphere increased from about 1750 (278 ppm) to 2011 (390.5 ppm). Link. Around half of CO2 emissions occurred in the last 40 years. In 2015, it passed 400 ppm, more than 40% higher than its pre-industrial value. Link. Recent attribution science trace emissions from the top 90 carbon producers – including Chevron, ExxonMobil, BP, Royal Dutch Shell, ConocoPhillips, and Total – to atmospheric CO2 increase and related climate impacts such as temperature and sea level rise.

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Rise in global mean surface temperature emissions after removing emissions traced to 90 major industrial carbon producers. Adopted from Ekwurzel et al. (2014)

Emissions traced to the top 20 investor and majority state-owned companies from 1880 to 2010 contributed ∼27.2 (±1.4)% of increase in atmospheric CO2. Combustion of products from the top 20 companies from 1980 to 2010 contributed 19.6 (±0.6)% of the historical rise in atmospheric CO2. At 1.8% of the total, Shell is one of the largest contributors to carbon emissions in the atmosphere. 1.6% of the measured rise in temperature and 1.4% of the measured rise in sea levels can be traced back to Shell’s corporate activities. Link

3.2 The state of mind

A considerable weight of evidence has emerged (www.climatefiles.com). To suggest that the public have been misled about climate breakdown and its causes. The Carbon Majors and their extensive knowledge of climate science goes back several decades. For example, this 1988 internal report discovered by the Dutch investigative reporters De Correspondent shows what Shell already knew about climate science.

Download pdf: Shell – The Greenhouse Effect

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‘Although CO2 is emitted to the atmosphere through several natural processes … the main cause of increasing CO2 concentrations is considered to be fossil fuel burning.’ – Shell

While this 1991 public information film, also unearthed by De Correspondent, warned of the dangers of climate change from the burning of fossil fuels.

‘Taking action now is the only safe insurance that we have.’ – Shell

As recently as in 2016 Shell has been supporting climate disinformation groups such as the American Petroleum Institute (API), National Association of Manufacturers (NAM) and Western State Petroleum Association (WSPA). Link Moreover Shell spent some $22 million in 2015 on lobbying activities against climate policies. Link

Download pdf: The Climate Accountability Scorecard: Royal Dutch Shell

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3.3 The context

The context: Whilst grave crimes (war crimes, crimes against humanity, genocide and crimes of aggression) mostly occur in the context of armed conflict, most ecocide crimes occur in times of peace, by state or corporate officials.

3.4 The consequence (site: Pacific Ocean)

Download pdf: Climate Ecocide: Preliminary Report, Site: Pacific Ocean

On a global scale, the ocean stores the majority of energy from greenhouse gas emissions, leading to rising upper ocean temperatures causing more extreme weather events, loss of coastal protection and coral bleaching. Here we synthesize data extracted from peer reviewed remote sensing and peer climate studies to visualize the scale and extent of climate damage occurring in the Pacific Ocean region. As the Earth’s largest and deepest ocean basin, the Pacific Ocean is of paramount importance for global climate and marine biodiversity. Yet climate breakdown poses imminent threats to the Pacific and its low lying island nations in a warming world. The report provides a first step in seeking causal links between climate crime and major investor owned fossil fuel producers.

Pacific Storm tracks 1992–2018

Storm tracks of major cyclones in the South Pacific from 1992–2018 show a pattern of increase in the intensity of cyclone strength at a rate of about 9 kilometers per hour per decade. While influenced by many factors, heat from the sea surface is a primary source of energy for cyclone formation. Warmer sea-surface temperatures will increase the probability of stronger cyclones forming.

Emissions traced to the top 20 investor and majority state-owned companies from 1880 to 2010 contributed ∼24.4 (±0.5)% of increase in GMST over the historical period. Combustion of products from the top 20 companies from 1980 to 2010 contributed 16.6 (±0.3)% of the historical rise in GMST. Link

Sea-Level rise 1993–2017

Between 1993 and 2017, the global average rate of sea level rise was 3.12 mm per year. During the same period in the Pacific, the local average rates of sea level rise were significantly higher. Sea level rise disproportionately impacts low lying islands and atolls, some that are no more than 2 meters above sea level.

The contributions of 1880–2010 emissions traced to the top 20 investor and majority state-owned companies to the increase in GSL contributed ∼13–16% of increase in GSL over the historical period. Combustion of products from the top 20 companies from 1980 to 2010 contributed ∼5–6% of the 1880–2010 historical rise in GSL. Link

Thermal Coral Bleaching 2014–2017

Coral reefs host over 25% of all marine species globally and are themselves the most biodiverse living ecosystems in the ocean. Bleaching is a process induced by high water temperatures and damages the coral ecosystem. Following those in 1998 and 2010, the third major global mass bleaching event began in June 2014 and ended in May 2017. Here we isolate the mass bleaching events in the equatorial Pacific. This third mass global coral bleaching event was marked by the four warmest years on record globally: 2014, 2015, 2016 and 2017.

4 Preliminary
examination: Shell

4.1 Summary

A prosecution for climate crime could be a prosecution against a fossil fuel company. This has to be considered. Prosecutions are not only to ensure justice, they can also have a preventive impact on the perpetration of further atrocities – and it all starts with the Preliminary Examination.

Each year, the Assembly of State Parties (ASP), the governing body of the International Criminal Court (ICC), convenes a plenary to discuss and decide the future direction of the court. On December 6, 2018, at a special event in the Hague accompanying the annual Assembly of States Parties to the International Criminal Court, Dutch Minister of Economic Affairs and Climate Policy Eric Wiebes, as well as the CEO of Royal Dutch Shell Ben van Beurden and the CEO of Shell Netherlands Marjan van Loon have been identified as key suspects in an independent preliminary examination into the ‘atrocity crime’ of climate ecocide.

The examination shall scrutinise evidence suggesting that Shell, one of the largest investor owned carbon producers in the world, knew that significant adverse impacts arise from their activities. Crucially, evidence (link) has come to light to suggest that the public has been misled over a lengthy period of 30+ years.

In recent years, Shell has been put on notice of the urgent necessity to end the company’s dangerous industrial activity in order to prevent climate breakdown, including via a high-profile shareholder challenge in May 2018 (follow-this.org) Earlier this year, Shell received legal notice of intent to sue for failing to act on climate change from Friends of the Earth Netherlands. Link. The company is also subject to an ongoing enquiry by the Philippine Commission on Human Rights, calling for Carbon Major investigation. Link. See also: link.

Meanwhile Economic and Climate Minister Eric Wiebes announced on 20th of November 2018 that the Dutch government will file for a Supreme Court review to challenge the legality of Urgenda Foundation v. The State of Netherlands. The Dutch Court of Appeal held in October that the government must cut emissions by 25 percent from the 1990 levels by 2020 as a minimum for the country to meet its international climate commitments. Link.

4.2 Phases of analysis

The International Criminal Court welcomes communications filed by individuals. This climate ecocide goes a step further in order to determine whether there is sufficient evidence both to satisfy the elements of a crime of ecocide and to justify its rapid establishment as an atrocity crime alongside genocide.

We are premising our examination on the rigorous scrutiny afforded to existing international crimes at the ICC. There, the Office of the Prosecutor must determine: whether there is sufficient evidence of crimes of sufficient gravity falling within the ICC’s jurisdiction, whether there are genuine national proceedings, and whether opening an investigation would serve the interests of justice and of the victims. If the requirements are not met for initiating an investigation, or if the situation or crimes are not under the ICC’s jurisdiction, the ICC’s Prosecution cannot investigate. We shall scrutinise each of the criteria in order to to establish whether the crime of climate ecocide falls within the remit of the ICC.

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The examination shall be subject to the same stringent conditions and rigorous scrutiny as is required by International Criminal Court procedures, with one distinction: we are applying a crime that does not yet exist as an atrocity crime.

If our examination concludes that climate crime is established, we will invite signatory States of the International Criminal Court to rise to the unique climate challenge of the 21st Century and propose the atrocity crime of ecocide as an urgent amendment to the Rome Statute.

In order for the International Criminal Court to accept what is known as a ‘referral’ in the first instance, the evidence presented can be submitted by individuals, groups, states, intergovernmental organizations or NGOs. The information gathered can include forensic evidence, satellite images, witness testimonies, government documents and orders, cell-phone interceptions, computer and email records, etc. The information should cover all facts that are relevant to the assessment of criminal responsibility.

It is our intention to make public all of our findings – hence this is a public Independent Preliminary Examination.

Press Release: Top Shell bosses and Dutch Minister to be investigated for Climate Ecocide ‘the missing International Crime of our Time'