Stopping Ecocide and Climate Catastrophe: A Critique of the Criminal Law

António Guterres, COP 27, Egypt, 7^th November 2022

In his opening address at the COP 27 UN Climate Summit, in Egypt on 7^th November 2022, UN Secretary General Antonio Guterres stated that the people of earth “are in the fight of our lives and we are losing … we are on a highway to climate hell with our foot on the accelerator”.  It has never been more urgent to act collectively to prevent climate catastrophe and promote social and ecological justice.  But what should be the contribution of criminologists? As well as challenging power, one thing we can do is critically appraise the role of the criminal law in preventing ecocide and climate catastrophe.  This something Professor David Whyte has done eloquently in Ecocide: kill the corporation before it kills us.

The Age of Extinction

Evidence of a potential coming nightmare - the age of extension - has been well documented in scientific journals for decades yet such knowledge and understanding has also been waylaid for almost as long by ideological mystifications generated by or on behalf of oil giants, such as ExxonMobil, Shell, BP, and Chevron. In Ecocide David Whyte highlights how several of these multinational corporations have, at least since the 1970s, spied on climate activists, attempted to discredit scientific findings showing the alarming rise in carbon emissions, and lobbied governments all around the world for more opportunities to extract carbon based fuels from the land.  This has led to a deepening of the divide between two competing camps: one promoting human wellbeing (notably concerns around jobs, wages, and cost of living) against another promoting ecological flourishing (thriving species, low carbon emissions, and climate stability).  Whilst on the one hand governments in many countries have paid lip service to reducing carbon emissions, on the other hand they have done all the can to carry on regardless with capitalist accumulation and facilitation of mass profits for corporate shareholders.

The problem we face today though is not just climate heating but full scale ecocide. The concept ecocide was first coined by the international lawyer Richard Falk, who drafted the first ever ecocide convention back in 1973.  His proposals were never adopted in international law but as climate heating has become increasingly evident (and indeed, accelerating as half of the CO2 in the air was produced since 1990), questions about what the world is going to do about impending ecocide has become some the most important and debated in the world today. 

Ecocide is basically the deliberate destruction of the capacity to sustain human life on the planet earth.  Ecocide involves several different forms of planetary destruction, including destroying longstanding natural habitats resulting in the extension of large numbers of animal and plant species; the toxic pollution of the air and water, including by plastics and household and industrial waste; the death of ecosystems on land and sea; and the rapid increase in carbon gases that are raising the temperature of the earth to dangerous levels for future life on earth.  The biggest question on the minds of literally hundreds of thousands of people all around the world today is what can we do to prevent this possible nightmare becoming a full blown and irreversible reality?  Can the law protect us, or will it simply distract us and create even further mystification?  In exploring these concerns in depth, Professor David Whyte in his book Ecocide: kill the corporation before it kills us, has provided one of the most significant contributions in criminology in the last decade.

Legal Response to Ecocide and the Climate Crisis

The picture with regards to the law in response to ecological crisis is not very promising.  There have been literally hundreds if not thousands of attempts all around the world to use the law, including the criminal law, to prevent environmental disasters.  In the main, they have failed.  Yet it would be unfair not to recognise that there has been at least some success with legal interventions.  Perhaps the most outstanding example is the control of CFC’s following the discovery of a hole in the ozone layer in 1985 over Antarctica. The problem is that this success is unlikely to be repeated with regards to ecocide, as undoubtedly the problem is much more complex, larger, and diverse than that of addressing a hole in the ozone layer.

The legal response to ecocide currently gaining the most publicity and financial support is the introduction of a new criminal offence of ecocide in international criminal law.  The main global advocates of the new crime of ecocide are Stop Ecocide International (SEI), who want to add a fifth crime of ecocide to the Rome Statute of the International Criminal Court (ICC).  The current four crimes are genocide, crimes against humanity, war crimes and crimes of aggression.   SEI want to make ecocide an arrestable offence and to make those people who are perpetrating ecocide criminally liable for prosecution. 

The funding arm of SEI is the Stop Ecocide Foundation (SEF), which was created in 2019 and in 2021 a report from a panel of independent experts it had commissioned and funded provided a draft text of the new international criminal offence of ecocide:

For the purpose of this Statute, “ecocide” means unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts. (SEF, 2021)

Inspired by British anti-slavery abolitionists in the early nineteenth century, SEI and SEF hope a new criminal offence of ecocide will send a deterrent message to the chief executives of those companies perpetrating environmental degradation and thus work in practice as form of ecocide prevention.  Significantly, advocates of the work of SEI and SEF maintain that their new criminal law would not undermine the accumulation of profit and the organisation is working closely with governments, corporations and other interested parties to create this new criminal law.

Stop Ecocide International Logo

As David Whyte has powerfully argued in Ecocide, the problem is that not only is this new international law, if it is ever enacted, destined to fail because the criminal law cannot effectively control the deeply ingrained ecocidal tendencies of the capitalist corporation, but that it may even make things worse.

First, critical criminologists and penal abolitionists have long noted that here is no evidence that the criminal law is an effective way of sending a message of deterrence.  There is a difference between what SEI intends for the law and how the law would be interpreted by corporations and states.  Further, the major oil and fossil companies have known about the deadly harms of their work since at least the 1970s.  Their response so far has not been to change their focus or operational practices but renew their efforts to exploit even greater profits.

Second, the law would likely focus on a few ‘bad apple’ corporations and their chief executives. This may have the perverse effect of actually adding legitimacy to those companies and states that are not prosecuted. Criminalisation of corporations, for example, may work in the interests of the global corporate elite as it will only focus on outliers when the problem of ecocide is much more widespread and deeply engrained in the organisation and structure of the global economy and its markets.

Third, as David Whyte powerfully argues in Ecocide, the International Criminal Court (ICC) is almost completely ineffective in terms of responding to serious and deadly global harm and wrongdoing. Several industrialised nations (such as the US) are not under the jurisdiction of the ICC.  Further, up until now, the nations most likely to be prosecuted by the ICC were from Africa (and had lost a civil war), which is not where the people who run or own those corporations destroying the planet live.

Fourth, it will fail to hold those who benefit the most to account. Through complex chains of ownership and the legal rules and protections which limit the liabilities of the owners of corporations, the corporate structure effectively creates virtual immunity from any possible corporate punishments that can be sentenced by the law courts.  Worse still, the new law could give the impression that something is actually being done to prevent ecocide, and thus result in complacency or distract attention and resources away from those interventions that might actually stop the onset of the age of extinction.

Moral Capital: Greenwashing Corporate Power

The roots of SEI in British anti-slavery abolitionism are hugely revealing of its limitations. A quick comparison of the similarities between the British Slaver abolitionists in the past and SEI and SEF today shines new light on why the calls for an ecocide criminal law may prove counterproductive.  Liberal anti-slavery abolitionists, such as Thomas Clarkson and William Wilberforce, all benefitted from either aristocratic patronage, wealth and/or had access to the political elite, just like the kind of access current SEI advocates of ecocide law have with the establishment. 

The call for slavery abolition in Britain was not rooted in emancipatory moral principles but was rather about attempting to reinstate a sense of ‘moral superiority’ to the British ruling elite, and such a conception of the ‘global elite’ today is something which may be an aspiration of those advocating the ecocide law.  As noted above, any prosecutions that arose from the ICC ecocide law would probably be limited and restricted to only those corporations that are the very worst and most obvious offenders, and most likely smaller companies based in relatively impoverished nations. 

The British anti-slavery abolitionists were driven by economic as much as moral considerations, notably that chattel slavery appeared at the time to be becoming increasingly economically unviable.  Rather than generating wealth, it was destructive and damaging for financial capital.  Today the SEI and SEF wish to do nothing to damage shareholder profits and economic growth but do highlight the importance of discarding destructive forms of capitalist accumulation.  In recent years there has been sustained high level media advertising and ‘greenwashing’ policies to convince the consumer that they are buying ecologically sustainable products.  The stakes – the very existence of a planet than can sustain life - are too high for a law that merely further greenwashes corporate power.

Furthermore, the overarching aim of the British anti-slavery abolitionists was to strengthen the moral legitimacy of the current social, political and economic order.   From the 1780s chattel slavery was increasingly considered as something which caste a moral stain on the British Empire.  The ending of slavery and the slave trade was a means of providing new ‘moral capital’ for the expansion of the British empire into Africa and elsewhere around the globe.  Those advocating ecocide law, without necessarily having this as their prime motivation (or indeed as a motive at all) are also potentially creating moral capital and greater legitimation of capitalist corporations.  The criminal law then could work to further mystify and morally justify ecocidal capitalist corporations destroying the planet. 

As David Whyte reminds us in Ecocide, not only have 20 corporations collectively produced 35% of all fossil fuel emissions since 1965, but also that since 1988 just 100 have collectively produced 71% of all fossil fuel emissions.  Whereas the focus on saving the planet in the media is often on what ordinary people can do, the massive profits of the rich, who are literally bleeding the earth dry, are barely highlighted.  It is estimated that 737 corporations control about 80% of the wealth and 147 corporations control about 40%.  Many of these corporations are directly implicated in ecocide and it is here where our focus should be for radical change.

The lessons are clear for both anti-slavery abolitionists and those looking to promote the criminal law as way of controlling the harms of power.  Both can be co-opted and utilised in the interests of the capitalist state and inform the moral discourse of the ruling elite.  These historical and contemporary examples of how moral capital can be accumulated demonstrate that it is essential that connections are made across a wide range of sites of exploitation, repression and domination. 

Engagement with the political, social, and economic elite will not deliver social justice, radical social and economic transformation, or prevent ecological destruction unless it is strongly tied / connected to the ‘view from below’ and infused with socialist emancipatory politics and praxis.  What we can learn from the anti-slavery abolitionists is that when the ruling elite champion a given moral cause, it may well be for the ‘moral capital’ that can be transferred to them rather than an honest and noble intervention, such as trying to prevent the further deepening of planetary wide ecocide.   Change does not come from above.  It comes from below.

Start Point Regulation and Ordinary Rebels

In his book Ecocide David Whyte (2020) highlights another flaw in the legal approach to saving the world.  Laws are focused on harms that have already taken place.  The law is only relevant once ecocide has already happened.  The fundamental aim of any form of intervention must be to prevent ecocide from taking place in the first instance.  A focus on punishing its perpetrators is a distraction from the real work that needs to be done – the development of what David Whyte calls “start point regulation” – that is interventions that protect the planet whilst it is still alive. 

Perhaps, as David Whyte notes, our biggest hope for preventing the age of extinction is the formation of a mass social movement made up of ‘ordinary rebels’.  Mass protests are an expression of the freedom of speech and one of the key civil liberties in democratic societies.  Protests are a way of expressing collective concerns, directly challenging government policies and as way of asking for truth, justice, accountability and radical social transformation.

We therefore need to look beyond just thinking about legal reforms and instead work collectively for a radical and progressive transformation of our social, economic, and political system that places ecological sustainability at its centre.  It is perhaps our only hope.