The Law of Ecocide – Polly Higgins
The way I have drafted the Law of Ecocide and what we are dealing with here is a Crime against Humanity. It is a Crime against Nature and it is a Crime against Future Generations.
polly Higgins – Lawyer for the Earth
HANDS OFF MOTHER EARTH
Polly Higgins The Author Of Ecocide Law Defines The Scope Of This Law, The Legal Process Of International Ecocide Law. This Conversation Is Inclusive Of The Spectrum From Harm To Harmony And The Formidable Changes Required For Earth, All Non Human Species And Humanity
with the Advocate for the Legal Rights of the Sentient Being of Earth and all species inhabitants. ANNA CROZIER
WHEN EARTH CALLS
ANNA CROZIER You are known as the Earthʼs Attorney and you have said that you have only one client, Earth. We all dream but many dreams are not with Earth but for self, for acquisition of Her resources and the power that arises with control of those Earth resources. You listened to Earthʼs call for you to be Her attorney. What was that moment that crystallized this commitment for you and your one client, Earth?
POLLY HIGGINS Well you know Anna it is one of those things. We get to certain points in our life that I now understand to be choice points There are moments when you face a cross roads and I had one of those moments where I found myself as a Court lawyer, in Court, on judgment day of a case that had been going on for a very long time. I found myself looking out of the window, waiting for the judges to come back. It was a case where I had represented a man who had been very badly injured and harmed in the work place.
I was looking out of the window and way out across the skyline of London, the trees and the buildings and thinking it is not just my client that has been badly injured and harmed, so has the Earth and something needs to be done about that. This, to me, was the moment that I think I heard the call
There was a call out there and you could say, in the consciousness, the superconsciousness, saying “the Earth was in need of a good lawyer” and I think I heard that. It was a thought that just would not leave me and it was a choice point. I could have continued on making lots of good money in Court or I could step out and do something about it and that really was the beginning of a journey of a deeper enquiry.
In essence, what crystallized into one question “how do we create a legal duty of care for the Earth”
ANNA CROZIER So you reached a point of discomfort of these impacts in order to respond to the call. I did say “Earth intentionally called you” as Earth is an empathetic, sentient being and she speaks subtly and volubly to those who know how to listen.
In this context empathy could be the explanatory bridge, the reason why you did respond to this audible call from Earth?
POLLY HIGGINS So for me, it was seeing this as something greater than self. What exactly that greatness is it is hard to pinpoint. I donʼt see myself as religious as such but it certainly has a kind of spiritual aspect to it. I do see myself in the context of spirituality but a kind of spirituality that has no sets of supplied rules, it is more engaging with the innate. There is a higher wisdom at play out there, a global consciousness if you like and tapping into that. It is very hard to explain really because I still have not quite worked it out.
What I do know is that there is something greater than the self at play here and I have become convinced through my own direct experience that we can shape and alter our own reality through the decisions that we make in our lives and those decisions are of course driven by our values. For me, this is really also about what are my values. What is it that shapes who I am and therefore what shapes what I am engaging in. In a way my work is a direct extension of who I am, so, I am living and breathing my life and what is created out of that comes directly from my values.
Ness, the Norwegian philosopher, he talked about thinking dutifully, acting beautifully and that if we work from a place of duty of care then all that flows from that can only be constructive and can only be beautiful instead of destructive. Life destroying, instead of live enhancing.
Life itself has an innate desire to thrive. Not just survive but to thrive, to flourish and in a way humanity, as a whole has lost that capacity to tap into that innate life force. When we do that, when we do cut off, then we end up making decisions that are contrary to the life force and we become very destructive instead of constructive. We become harmful and we end of living in disharmony rather than harmony.
So this is for me is about rebalancing energy, energetically rebalancing what we are doing and law is just a physical manifestation If anything it is aligning our own laws with natural law. We align our own human laws with natural laws, higher law if you like, then harmony can be reestablished.
ANNA CROZIER So you are interfacing Natureʼs soul voice. Your spirit is actually interacting direct with the Source
POLLY HIGGINS Yes and when we align with that we know it as we have a sense of harmony and it is a far more pleasurable state to be in. I am not entirely convinced that causing mass damage and destruction is pleasurable. It certainly does not work, thatʼs for sure. At this point, if it is a pleasure then it is a perverted pleasure. It is not a pleasure born of love and care
There are words for control that are not actually a true pleasure as they are borne from a need to feed a fear, somewhere along the line.
THE PLAY OF THE CHILD IN UNTOUCHED WILD LANDSCAPES
ANNA CROZIER Retracing your steps to your childhood. Was Nature a place and space for your encountering as a child and were you immersed in large landscapes or into the prisms of urban existence? How were you touched as a child by Nature?
POLLY HIGGINS I grew up on the west coast of Scotland in Sterlingshire and also spent a lot of my childhood holidays up in Argyleshire and in an area that is largely untouched by human hands It is quite a rocky, wild landscape and there was a great sense of being at one with Nature
It was actually a place that I see as a touchstone for me and I really connect with my Celtic roots when I do return to the Argyleshire coastline It has a wild beauty and it has not been domesticated. I often feel that humanity is being domesticated too much and that it really is about us yearning to return to our inner wild state and that is why these places can speak to us in a very deep way.
ANNA CROZIER In these locations we often do not need company as Earth is the company and the Nature child within knows how to listen to Her.
POLLY HIGGINS Yes, children understand this when given the opportunity.
ANNA CROZIER Today we have technology recording the extraordinary music of the plants, identifying their intelligence and perception so what you would have felt intuitively has a reality in the sentient intelligence of Nature, communicating and reaching out to you.
FORMULATING THE SPEAK FOR EARTH
ANNA CROZIER The most important part of this story though is your response to this call in a highly structured way for protecting Earth. Can you describe how you chose to formulate your “speak” for Earth?
POLLY HIGGINS How I chose to formulate the way I speak for Earth is that I decided very early on that it was very important to speak from the heart. This seemed to me something that I was not seeing in the political world and I was not seeing it in the legal world. I was not hearing it elsewhere and I felt that this was part of the problem, that there was a huge disconnect on how we were engaging with issues
As a lawyer, as an environmentalist, as someone who was politically engaging in these issues, it seemed to me that part of the problem, part of the disconnect in Law, is that we have created this “us versus them” approach and this really ties into how we have formulated the laws. Rather than it being the environment out there and us humans over here, which creates an arm lengths response it was to really understand the interconnectedness of all life. To understand that what we actually do to the Earth has huge consequences and that we may do something over here that has huge consequences over there, in a completely different Continent and at a completely different time.
So our actions that have severe adverse consequences transcend time and space and yet there is a butterfly effect here and without recognizing that, in fact, we have a responsibility for the consequences of our actions. It is a failure to recognize the intimate interconnectedness of all life itself. Our responsibility as human beings upon this Earth is to ensure that we do not cause mass damage and destruction.
ANNA CROZIER So Fukushima is a classic example of very profound Ecocide.
POLLY HIGGINS Yes, a very good example indeed and also what you are looking at there are two different types of Ecocide So you have human caused Ecocide Here you had nuclear power stations that when a naturally occurring Ecocide happened, when there was earthquake activity, it then triggered significant harm as a result of those nuclear power stations being on those fault lines and of course, spreading mass damage and destruction
So you had a combination of both human caused Ecocide as a result of that corporate activity there and that when something goes wrong, it goes wrong very badly. The earthquake, the shifting of the tectonic plates had a combined effect which, of course, was catastrophic and has long term adverse implications.
In another example, I was invited up to Kazakhstan, a few years ago and was taken over to the far eastern area of Kazakhstan, an area called Semi. This is where back in the 1970s for a period of 25 or 30 years there was nuclear testing undertaken and for the human beings that lived there, it was essentially a human experiment. Not just the humans; in fact, the land there was 700 square kilometres and is deemed dead land as a result.
I was taken around to hospitals where the Dr.s there were not trained to deal with throat infections or flu they are trained to deal with melanoma and children who are born malformed, three generations on as a result of the nuclear waste that had entered into the atmosphere, This action was without them knowing or having given consent So these adverse impacts can have huge significant long term consequences for humanity This is not just humanity but non human beings as well, for all beings. How these actions have a huge ripple effect that really transcends time and space for a very long time.
ANNA CROZIER So, generational effects and all species decimation and extermination.
POLLY HIGGINS Absolutely, this is it The way I have drafted the Law of Ecocide and what we are dealing with here is a Crime against Humanity. It is a Crime against Nature and it is a Crime against Future Generations. So it is recognizing that it has intergenerational impact and ultimately this is a Crime against Peace because it does not only compromise our ability to live in peaceful enjoyment but also the Earth”s ability to live in peaceful enjoyment. This is very important here because this is about health and wellbeing of people and planet.
ANNA CROZIER Yes and that She is a sentient Being, a living, feeling organism as expressed by Nature. It is evocative and it is a poem.
POLLY HIGGINS Absolutely
Detailing the legal infrastructures for crimes against Earth
ANNA CROZIER What are the legal structures for Ecocide Law, the language and the process of the action of Law for the protection of Earth and Her natural Law systems.
POLLY HIGGINS Ecocide Law is drafted up very deliberately as an International Crime first and foremost. This is very important There is significant difference between Criminal Law and Civil Law
Criminal Law creates the governance of our rights. I will give you an example of that for existing law In instance our human right to life, which is our most important right and all other rights are irrelevant Our human right to life is governed on a one to one basis by the crime of murder or in America it is known as homicide.
In instance, if you are in the kitchen and you are having an argument with your loved one and there is a big knife on the table, you might think twice before you use it as a weapon to kill your partner, knowing full well that that would be murder. This, of course, has consequences, not least of all, that you have taken that life but you have a legal duty not to take away that personʼ life.
So, just as our human rightʼs to life is governed by that crime of murder which then puts in place a mechanism whereby there is an enforcement It acts as a check and balance but it allows the Court to step in for justice to be put in place in the aftermath of it but also it is societal recognition that it is untenable behavior.
Now, on a Collective level not an individual level you are looking at the crime of genocicde when it is a whole community that are killed So that is all about our human governance on our human right to life. What I am doing is expanding our cycle of concern. I am saying that our human right to life is just one aspect and in fact it is about all beings right to life and so when we expand our cycle of concern into the Earthʼs right to life then, how do we create that governance level mechanism.
Well that is by creating an International Crime of Ecocide to criminalise mass damage and destruction and loss of ecosystems which can then be used to ensure that those who actually do cause significant harm on a mass scale can be held to account.
More importantly, what it is doing is putting into physical form a governance that is a reflection, a mirror reflection of where society has gotten to in terms of its understanding. So law often reflects where civilization is Just as where civilization gets to a certain point and says “theft is wrong and therefore we criminalise it” Then we also get to a point where we can say “causing mass damage and destruction “ to the Earth is wrong and therefore we draw a line in the sand and we say “enough, no more”, just as we did with genocide.
So this is really about missing Law but also in a way, The beauty is that once we all individually and collectively take responsibility the written Law is not longer required.
At the moment, the way I see it, it is required because obviously significant harm is playing out without consequence but sometimes just by putting in place a Law what you do is shift the normatives very fast What is the norm today ? Well, the norm today is that we can actually cause mass damage and destruction every single day because we have normalised it.
In fact one legal mechanism, in particular, is that we have legalized the right to destroy by creating silent rights The Corporations can go in and destroy, in pursuit of financial gain. It is not necessarily intentional, it is a secondary consequence when you are going in with heavy extractive industry. What is intended is to make lots of money out of whatever it is that is being extracted and it is an adverse consequence of that pursuit of money but it is the Law to put the interests of the shareholders first.
This usually means to put profit first. So Law, if you like, has created a huge problem here and has led to this situation where we have normalised it. It is fine to cause mass damage and destruction in pursuit of profit. I am saying that Law can resolve this as well but Law that comes from a different level of consciousness, a different level of understanding.
It is a recognition that, in fact; this is really about how we shift our normatives and move away from property and ownership and treating the Earth as a commodity where we can buy and sell and use and abuse to viewing the Earth as a living Being. So we view ourselves as Trustees, as Guardians of this Earth for future generations. When we do that we have a term in Law. It is when “Malum in se” become “Malum Prohibitum.” When something is wrong, in and of itself, we prohibit it. Just as we did with apartheid and genocide and now it is the time to prohibit Ecocide.
ANNA CROZIER There is no separation. Ecocide does becomes Bodycide, it becomes Genocide. It is interesting what you raised where the Law has put the interests of the Investors first, which actually creates a fear by the CEOʼs if they are not delivering the “good budgets”. This becomes the gearstick for the malorific actions against Earth.
You have been training an immense number of Environmental Lawyers around the world in this Ecocide Law. You have also been reaching out through social media and Ted Ex programs to convey to our global societies the action of Ecocide;.
What are your assessments on the percentage of people waking up to this “right of life” for Earth, all species life.
POLLY HIGGINS I think there is an enormous amount of awakening here Sometimes an idea has its time and I can see that not just the Law of Ecocide but there is a whole emergence, a whole new body of Law called Earth Law that is seeding very fast right across the world and this is unstoppable.
This is a matter of when and not if, as this is the new normative and we will come to a point where it quite literally tips and we are already on that trajectory I can see that more and more people are engaging with the issues of concern in a global context and saying “this does not make sense” It does not make sense to cause such significant harm and there must be a new narrative here that we can put in place to bring this to an end
For me, this is about ending the era of Ecocide and putting in place something that creates the bridge, creates the pathway, the neural pathway to take us to a better place and for me, at the heart of that;, is Ecocide Law.
ANNA CROZIER So is this a process of mediation first of all, with the Corporations. The Environmental Lawyers are going into the Boardrooms to explain Ecocide Law.
POLLY HIGGINS No, not at all. Big business has no say on this Law being put in place. If they did it would never be put in place but just “business as usual”.
International Crime is not determined by big business. Can you imagine, genocide would never have been put in place. There were a lot of people making a lot of money out of genocide especially business.
No, there is a higher morality at play here.
This is something that Crime recognizes and International Crime is about putting in place the Crimes of most significant concern to humanity as a whole and the document that governs that is called The Rome Statute, signed off in Rome and hence the name Now the Rome Statute is the most important international legal documents that we have in the world. It codifies the existing international Crimes Against Peace as they are collectively known and those international Crimes Against Peace are genocide, war crimes, crimes against humanity and also Crimes of Aggression.
What I am saying is all we need to do is to amend this document to add another International Crime Against Peace and that is Ecocide. To do that all that is required is for that to be tabled by one Head of State who is a signatory to that existing International document and once that happens the ball rolls very fast. Every five years we have a window of opportunity for this to be tabled and the next window of opportunity is 2015.
So, I am saying that we have absolutely no reason not to have this tabled in 2015 Here is our window of opportunity. Every government in the world has received a concept paper on this and every government in the world has received an additional document that gives the history of the Law of Ecocide
A couple of years ago we discovered that when the Rome Statute was being drafted in fact Ecocide was going to become an International Crime, until at the very 11th hour, it was removed, without reason There had been a closed door meeting, Amazingly, we have the minutes of the meeting, where the Head of the Working Group on Crimes Against the Environment in the United Nations announced that Ecocide was going to be removed as an International Crime Against Peace during War time and Peace time and no reasons were given
So this actually, has been hugely helpful as I have documentary evidence that we honour Earth as the United Nations basement because what it does is gives us the background to what happened before and we know many countries had supported it as an International Crime in the mid 80s and mid 90s In fact many countries objected to it being removed. We even have records of the UN raconteurs who state that it was as a result of four countries lobbying behind the scenes that it was removed. We know that if this is left to happen behind the scenes again then the likelihood is that it will be shelved, once more
So this is why I make everything I do public. It is all out in the public domain under Creative Commons Licencing and Open Source so that you have the right to know what happened before. You have the right to know that this powerful Law was actually shelved and that had it been put in place we would be in a very different place today. In fact, we would not even be having this conversation as our new normative would be a green economy. We would be using renewable energies as a norm. We would be in a very different place.
ANNA CROZIER Yes, we move to a transparency of what takes place in these crucibles of decision. There are an overt number of governments and Corporations who are into unconscienable destruction and assault upon Earth.. Are you tracking who is behind the money trails?
POLLY HIGGINS No, my job as a lawyer is to legally advise as to how this Law will fundamentally flip our existing paradigm. It is for others to use this Law and to bring the evidence in whatever way they wish to do so. I am not actually building cases myself, what I am doing is working on legally advising as to how to get this Law put in place so others can bring that evidence to the fore.
ANNA CROZIER So who is stepping up to support your needs in delivering Ecocide Law?
POLLY HIGGINS I am financed by a fantastic number of individuals who believe that a lawyer, like me, should have the freedom to go out and legally advise on this in whatever way I see best fit. I call my funders, those who give me lump sums, my freedom funders. I am very explicit about my funding, I call it “heart to heart funding”. If what I am doing makes your heart sing then I invite you in to fund me from a place of trust and freedom. That is very important so I am not funded by organizations that have their own agenda here and I am not compromised in what I am doing. I am given complete freedom to do what I believe to be best to take this forward and in whatever way will move this in the fastest possible capacity.
A lot of my work happens in closed door meetings. I am legally going in and advising at a governmental level, non governmental level with NGOʼs and various interested Agencies of the United Nations. A lot of this is going in and advising how this Law will work and how it could work and I am leaving it to those individuals to take it further forward in whatever way they best see fit. The traction that I have is that I keep it confidential so those various individuals and organisations can speak publicly when they feel ready rather than me trying to push them into something when they are not quite ready.
I am very aware that this has huge political implications and one of the biggest fears is the huge weight of Corporate lobbying coming down at a time when it has to be put in place safely.
THE CRITICAL PROCESS OF INTERVENTION LOBBYISTS TO STATE GOVERNMENT TO INTERNATIONAL ECOCIDE LAW INTERVENTION
ANNA CROZIER So in the future are you seeing collective group action taking place against these Corporations who offend both Earth and her communities.
POLLY HIGGINS The trouble is with International Criminal Law is that it is the State that is responsible for taking action. In instance, if someone steals something from you it is the State that takes the case, it is a crime. So, you donʼt have to bring the case, you donʼt have to pay for that case to be brought because it is criminal activity. The police step in and then the case is referred to the Prosecution Services and they take it further forward into the Court based on the evidence.
The important thing here is that when International Crime of Ecocide is put in place then the legal duty is vested in the State to take the action on your behalf and when the State fails to take legal action on your behalf the International Criminal Court can then prosecute the State, the Head of State, the Minister of State as well as the company or those who are involved in the finance or the lobbying of it.
So this is very important because at the moment what we are seeing is significant environmental harm that is governed by existing Environmental Law. Civil action is hugely deficient because it means then that it is an action that an individual or community has to take to a Civil Court against a Corporation All that can be solved is usually a financial remedy but it does not necessarily prohibit the activity from continuing because it is not illegal; It is not a crime but it may just be a breach of a civil law and should anything be paid out it is usually too little, too late.
Also the community that has been adversely affected usually has not the financial means nor legal means to bring the case in the first place. If they do, the chances of them succeeding is often very slim. Whereas with Criminal Law, well, there is often a difference as it moves far faster because the State has to take action far quicker so instead of a case lasting over a decade it can be done and dusted within a year or so. It is encumbent upon the State to take that action.
For instance, murder, you do not have to bring the case against the person who has murdered your partner, it is the State that steps in to take that action and that is what is very important here. When they fail to do so when it is Collective action such as genocide then that Head of State can be prosecuted by the International Criminal Court. So, with Ecocide, we have Ecocide playing out and the Court where the State has failed to take action on this offence then that Head of State can be prosecuted in the International Criminal Court.
It acts like a check and balance
ANNA CROZIER it is so critical for the International Court having full power so the State itself can be brought into question.
THE ASSAILANTS OF EARTHʼS ORGANISM
Earthʼs organism is being assaulted by multiple Corporations, it is layered, It is Earthʼs equity and it is Her life force so in the long line up of assailants upon Earth the greatest offenders are the miners, the oil drillers whether it is oceanic or large landscape oil drilling, wilderness drilling such as the Napo and Amazon Rivers, We then add the Corporations who are fracking for gas extraction, coal miners, dam engineering companies, chemical agricultural companies, geo engineers, their chemtrails and the aerosol, chemical dousing of our atmosphere We can add to this the very large multiple luxury hotels, condos and apartments that are imploding in the rare pristine wilderness regions.
Ecological destruction, human health destruction it is enormous accumulative destruction so where do we begin?
POLLY HIGGINS Greater prosecution is brought to bear in International Criminal Law; The principle is called The Principle of Superior Responsibility. You are not actually going to be prosecuting all the individuals lower down the chain who are on the ground, doing the drilling, or causing the harm direct. In fact; you are prosecuting those at the very top end who have made the decision to bring it about. So, you are looking at the CEO and the Directors.
You are also looking at maybe the Energy Minister who has signed off on the Project. You are looking at the Head of the Finance House who has invested heavily in the Project. You are looking at the person who has lobbied or who is Head of the Company who has lobbyed the Government to allow this to go ahead.
This is very important because otherwise you are going to be prosecuting thousands and thousands of people. In fact what you are doing is prosecuting those at the very top end and we are really only talking a few hundred or a few thousand people in total that this Law will be used against. In actual fact we are only talking about a few thousand people in the world who are making decisions that are causing significant harm where yes, many actors are involved but it is the decision making at the top end that you are stopping.
So it is about going upstream to the very source of the harm and that is the decision making that is made in the Boardroom, the flow of finance that goes into it and the political support, whatever Minister of State that signed it off.
So it is very easy in legal terms to decide who it is that you actually prosecute. This is very important because actually this is about not having any form of immunity. You cannot be immune from International Prosecution. You cannot hide behind political or diplomatic immunity. This was actually annunciated during the Nurembourg War Tribunals whereby for purposes of genocide legislation it was recognized that those at the very top end could be sitting in a completely different country, a completely different city, making the decisions as to who was going to be put into the gas chamber and gassed. In fact creating Laws to normalize that and that the guy pressing the button on the gas chamber possibly did not want to be doing that but felt he had no choice.
So, it is the decision makers, those who actually carry the highest mantle of the burden of responsibility at the very top end.
The beauty of the Law of Ecocide is that it creates a form of governance that if you are a Minister of State or a CEO and you want to be doing that which is non harmful this Law then greatly assists you. If you are a Minister of State for Energy for instance and you have a lot of pressure to sign off on a contract for unconventional gas extraction to be expanded, the Law of Ecocide means you can stand strong and say “I am sorry I cannot sign off on that, it is a Crime and my head will be on the block. I will be the one that will have to answer to a Criminal Court of Law. I can be the one to end up in prison for signing off on this and I refuse to do that because in fact we are putting in place Policy, By Law, we have to support that which is non harmful, the Renewable Energy“.
The same for the financiers. Why would you want to invest in something that is now so high risk, it is deemed such a dangerous industrial activity that it is a Crime. Actually shareholders would find it untenable that they would go ahead with something that is now a criminal activity.
If anything, what you are doing here is you are sending out a very powerful message and long term investment signals as to what is acceptable and where that flow of money should and could go instead and will go, indeed, for that matter.
ANNA CROZIER So it is stopping financial blackmail and the intimidation that takes place when there are X number of mining dollars for the State. In fact, it does mean that Earth does come first.
POLLY HIGGINS It is putting the health and well being provision in place, that puts the health and wellbeing of people and planet first, over and above profit.
Now I am not anti profit, not at all, my issue is profit that arises out of significant harm and this is about generating a stream of activity into innovations in the other direction and the flow of money into the innovation.
ANNA CROZIER Yes, so it will support ecological economics.
POLLY HIGGINS Absolutely
DEFINING THE LEGAL DIFFERENCE AND STRATEGY BETWEEN A CRIME OF INTENT AND A CRIME OF CONSEQUENCE AND STRICT LIABILITY
ANNA CROZIER So in this interfacing between Ecocide and Genocide iit is inevitable that if there is ecocide taking place, there is ecocide, bodycide and genocide. It may be fast or it may be slow but there is physiological deterioration or death. This is inclusive of destruction of indigenous communities survival. All societies survival, Earth survival.
This darkness becomes darker when we put the telescope on the avaricious acquisition of Earthʼs resources, In Peru and Ecuador the Government and Corporationʼs intentionality is to kill those who voice their environmental objections. It is assault on Earth and humanity
POLLY HIGGINS Yes, it is assault but very rarely is it intended as conscious intent to do so. It is a secondary consequence and this is why Ecocide Law is drawn up as a Crime of Strict Liability. So where significant harm is caused, that amounts to Ecocide, then as long as the evidence is brought to bear in the Courts, that individual who has made that individual decision, that has led to that significant harm, is found guilty of Ecocide.
In sentencing purposes what can aggravate this and then put up the level of sentencing is whether or not you knew it would cause harm but you went ahead anyway, that is recklessness, or whether or not you decided from the outset you wanted to do that to cause deliberate harm. In truth, it is very rare for CEOʼs and Directors to sit around a table, rubbing their hands together, OK, letʼs see what we can destroy today. Actually what happens is a question of how can we make the most amount of profit and if that means it causes harm, we go ahead anyway.
So, it is a Crime of Consequence rather than a Crime of Intent and that is very important because if it was drafted as a willful intent, that Ecocide was done willfully with intent, it would be very difficult to prove in court. In fact, lawyers would spend a lot of time fighting just to show that the CEO or the Directors had no intent to destroy, it just has happened as a consequence of their pursuit of profit.
So, the drafting of the Law is very important here that it is Strict Liability. Your starting point is the question “Has significant harm been caused here and if so then you are guilty on the evidence and only then do you look to the state of mind behind it.” If the state of mind shows that you should have known but you went ahead anyway then that is an aggravating feature for sentencing purposes but it is not a necessary component to make out the Law in the first place.
ANNA CROZIER Today we have visual and audio evidence on the destruction of Indigenous lives affected by the assaults in the oil drilling the Amazon and Napo Rivers and in other regions. These assaults are inclusive of the habitats of “uncontacted people”.
POLLY HIGGINS I absolutely agree and that will establish a Law of Ecocide. If you were to establish that it was deliberate then it would likely fail and you would fail those communities. You are also talking about another form of Ecocide and that is Cultural Ecocide where some people would call it a slow genocide but in truth you do not have to die to be at the receiving end of significant harm.
By being forcibly pushed off your land or having your land destroyed and where you have lived for many generations creates enormous trauma in its own right. This is defined under the legislation as Cultural Ecocide. So you can bring a case on that basis as well. All you have to show is that there is evidence that it has happened.
You do not have to look to the criminal mind of the people who have done it. You just have to show that it has happened or is at risk of happening. So, you are looking at the evidence and that is what matters here. Not what that CEO was thinking at the time.
Otherwise you would have a really hard time proving your case which would be a real problem for the Indigenous community. This is easy. This is to establish easily that a harm has occurred and therefore it has to be addressed.
It is a different issue after that to say there was a reckless element or any intentionality; The important thing is to show the evidence.
ANNA CROZIER It also represents a Law of Conscience for all the other species that are currently being very rapidly extinguished on our planet and this Ecocide Law provides them with a voice.
POLLY HIGGINS Yes we already do this for children in Court. So with childcare provisions we appoint a guardian to speak on behalf of the child. A 3 year old cannot actually tell you what their rights are, what breaches of Law there have been or what they felt but we have an expert in Court who can speak on their behalf and present the evidence that says that “this child has suffered trauma because of the injuries inflicted”.
It is the same for the Amazon, for instance, for the ecosystems. You can bring in experts, who can give their expert advice and opinion into the Court based on the evidence in front of them to say that this is an ecosystem that has been badly destroyed and these are the adverse consequences that have been or will play out as a result.
ANNA CROZIER Yes, that is beautiful So, we have many newspapers today that are owned by mining companies. Would you consider taking newspapers that support these adverse actions to be subject to these Ecocide Laws by their alliance and payments from mining companies?
POLLY HIGGINS Well there are provisions in the Ecocide legislation for lobbying because the biggest problem we have is the huge amount of money that passes hands to lobbyists and lobbyist organizations to work behind the scenes to ensure that thE contracts are given between Companies and Governments. So it is targeting the source, the biggest issue there.
If anything, what you will find is that newspapers will no longer want to engage with something that is a criminal activity. It is actually very difficult to write a story that supports something that is a crime once it is criminalized.
People do not want to read a story that is supporting a criminal activity. It would be madness if we had newspapers that were writing about how good genocide is. It would not work.
So what you do is fundamentally reframe the narrative. It suddenly becomes socially unacceptable that which is acceptable today. So this is a reframing of the narrative.
ANNA CROZIER So with this increasing intention on Ecocide Law what are the significant changes that are already shaping because of your communication on the reality of Ecocide Law.
POLLY HIGGINS The funny thing is that those companies that do not like this Law do not tend to want to speak to me. So the engagement I have, comes from those who really understand the wisdom behind this Law. There is a common denominaton here
it does not matter whether you are in the political world, business world, the academic world, the legal world, the common thread is whether or not you care. If you care about what is happening to the Earth today then this is a Law that speaks to you because it is common sense. We get to a common point that is, “that is enough, no more, this must stop.“ We have to criminalise mass damage and destruction.
In fact I am meeting people who say “I had not realized that it was not even a crime”. So this is also about giving a language to others to start using this as well and start reframing their own campaigns I am very interested in what we are seeing in campaign terms in that many organisations in grass roots groups and campaigns across the world are fighting against a harm and their narrative is “stop this, this is wrong” and often we donʼt win that fight because,in Law, it is still perfectly lawful for mega mines being built and for Proposals to dredge through the Great Barrier Reef in Australia, or to frack, to unconventially extract, to deforest.
THE BIGGEST PROBLEMS WE HAVE HERE IS THAT IT IS NOT A CRIME.
So, I am inviting those orgnisations to use a different narrative that actually gives far more leverage and that is to identify the significant harm as an Ecocide. Give it names, say it for what it is, say that it is, morally, a crime and legally, it should be a crime.
Then it is just a matter of time because you are reframing the narrative on your own terms. You say that this is unacceptable and when we get to a point whereby we have societal disapproval of countless of different ecocides that are playing out in our world, it just simply becomes untenable to not have a Crime of Ecocide in effect.
ANNA CROZIER In Australia there is ground roots action responding to the State an Federal Government. Ground roots lobbyists are travelling out in remote areas, especially for the assault of frackin. In reaction to this ground roots action; at a State and Federal level the Government is trying to change the Laws so that it is illegal for anyone to stand on that ground except the farmers who own the land!!
URBAN DESIGN AND DESIGN FOR DISCONNECTION?
ANNA CROZIER I would like to look at the question of why there is such a profound lack of consciousness and especially in the cities where this Earth disconnect has become so prevalent.
POLLY HIGGINS This is a good point and what is very interesting is that our world can cause this disconnect Just the very fact that we concrete over our Earth, how we sit inside cities in high rise building. I have often contemplated that those who cause the greatest amount of harm to Earth are often sitting the greatest distance from Earth, at the very top of the buildings. Whether that very physical disconnect of not having Earth beneath your feet creates part of the problem ?
if anyone has done any scientific enquiry into that I am sure there must be some correlation there. I think there is also this cause for a hope here because more and more people are turning away from the world of disconnect. It gets to a point where you kind of wake up to it not being satisfying enough
This constant consumerism that we see everywhere is really a way of filling a gap in our lives where you have a life that is disconnected from the Earth, from that sense of harmony. Many people are turning away and seeking a life with more purpose, a stronger sense of community. I see it everywhere I go in the world.
Eco communities are popping up, people engaging in permaculture and biodynamics, people connecting with Transition Town initiatives and within cities as well. People are turning away from the old story, the old paradigm that being happy is to have lots of money, to be successful, to be in control, to have status, to have a big car, a second house.
More and more people are saying that really does not do it for me; I care more about my quality of life and the people I am engaging with. I choose for something that gives me a better sense of nourishment and well being that is based on intrinsic values rather than the imposed values. It is actually about being with community who care.
This is something that I have seen growing and especially with the younger generation. It is increasing everyday.
ANNA CROZIER So the cracks in the wall are happening People are looking to Earth to find their own identity and this greater kinetic experience. We do have this kinetic experience when we are in the wilderness, it stimulates the entire physiology, the psyche.
So you are feeling that there is a greater number of people seeking Earthʼs spirit ecology and wanting to be with Her more.
POLLY HIGGINS Without a doubt. There is something going on here. The very fact that I am having a conversation with you on Earth Law and Ecocide Law is happening now whereby a conversation like this even five years ago would have been considered madness but now, more and more people are engaging this and understanding primary core values that they wish to identify themselves with. The very sacredness of life, the interconnectedness of life. The love of life as well. Deep care creates a love of life and that when you are in that space you really are engaging with those intrinsic values and it becomes untenable to cause mass damage and destruction.
More and more people are turning away and saying “I donʼt want this and I do not want to be complicit within this either”.
ANNA CROZIER People are seeking the ecology, the bigger landscapes where the real adventure lies.
POLLY HIGGINS Absolutely. Being locked in an office in a city, what kind of adventure is that? It is not, there is no freedom in that. Where is the tapping into our inner wildness. It is just not there. It is a highly domesticated, controlled environment. When someone says to me “they are in banking”, my first thought is, “poor you”.
Where is the sense of adventure, of entering into the unknown and engaging with the wilderness and Nature itself.? It is just not there. I think within us there is a deep yearning to enter into our inner wildness. I mean that in a whollistic sense It is that deep connection with Nature herself, without a doubt.
ANNA CROZIER This search for the inner wild is also coming at a parallel level with the indigenous voices that are now speaking up to prevent the destruction of the wilderness regions. There voices are implicitly impulsing an evolutionary wave of awareness and connection via social media and I am finding this wonderful.
THE INDIGENOUS RIGHT OF PLACE AND PROVEN EARTH WISDOM
What is your connection with First Nations and Indigenous Tribes and their fundamental desire to protect Earth and all endangered species? This includes those speaking for the “uncontacted” tribes. What point of meeting have you at this stage?
POLLY HIGGINS I am really interested in the Indigenous world. It is not an idealised world. There are a lot of people who do not see themselves as Indigenous but get the wisdom to see how wrong it is to destroy our Earth. Maybe this is just tapping into a higher wisdom which the Indigenous tribes have never forgotten about.
If anything it is the developed world that has become very undeveloped in its thinking. It has closed down its abilities to sense, not from the head but it is the sensory perception of understanding what works and what does not work. Where we are going and how we should be engaging with life itself.
The Indigenous world? When I was first speaking up about this and I had lawyers saying Polly you are mad, “Earth does not have a right to life”. When I looked around I discovered that the Indigenous world considered this entirely normal. Why would anyone question this? This was not only the Indigenous world but also the Buddhist world as well.
When you look at the United Nations definition of “what is being Indigenous” There is 370 million living out there as their forebears did live off their land and there is 380 million Buddhists living as their forebears did. So this is 750 million people.
Now that is the size of Europe who get what I am talking about and this was vastly reassuring for me from the outset. In fact it is the Western World who is playing catch up here. We have lost this innate understanding and we are the ones who are having to put it back in place. (Polly laughs and says;)“We are the ones who are behind the times”.
ANNA CROZIER Alan Ereira is a BBC documentary filmmaker who wrote a book called The Elder Brothers. This book depicts his journey to meet the Kogi people in Eastern Columbia. The Kogi are the Elder Brothers who look at the western world as the Younger Brothers. It is a powerful story of a tribe who have remained uncontactable until now. It was Alan Ereira whom they reached out to as they knew they could not remain silent with the assault upon Earth.
In the Yasuni National Park in Ecuador the Yasunido people are endeavouring to defend the Napo River, originally from Chevron Oil and now the Chinese Oil Drillers who are destroying the Napo River and Amazon River and the lives of all species. There are 9 uncontacted tribes in this region. The same is happening in Peru and Brazil.
What are your thoughts on the information reaching the Investors so they are aware that their investments are in the action of assault upon Earth and the authentic owners of the forest, all community health and generational impacts. What is your witness of investments remaining with these companies or investments being withdrawn because the people have been informed and become aware of these horrendous offences.
POLLY HIGGINS An investor is first and foremost interested in the highest return from his money and he is driven by financial consideration rather than moral considerations. So, in legal terms it is far more difficult to govern millions of people who are investors. It is far easier to govern those that are making the decisions in the first place. The CEOʼs and the Directors.
At the end of the day if you look at all those companies that are causing really significant harm in the world, it is less than 100 CEOs that are making a decision that is causing significant harm. Ecocide Law really is about addressing that core small group of decision makers at the very top end.
When that happens you will find, of course, that investors will fall into place because suddenly they do not want anything invested in something that is a criminal activity.
INVESTING IN HARM, LEGAL PERCEPTION
At the moment it is perfectly normal to invest in something that causes a little harm but “it is a necessary or good harm” !! Well Criminal Law does not recognize the difference between good and bad harm.
Criminal Law starts on the premis that it is ‘a harmʼ, then you decide just how bad.