Oil executives found guilty of ecocide

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The CEOs of two of Britain’s largest companies were found guilty in the UK Supreme Court on Friday of the proposed crime of ecocide. The companies were found to have caused “extensive damage, destruction to or loss of ecosystems” in their exploitation of the Canadian tar sands.

The one-day mock trial with real witnesses, real barristers, a real judge and a real jury showed how ecocide might be tried in practice. One of the CEOs (the only participants played by actors) was also charged with ecological destruction caused by an extensive oil spill in the Gulf of Mexico, but found not guilty.

After the trial, jury foreman Huw Spanner said his panel felt the evidence in the case of the tar sands was “incontrovertible”. Large bodies of toxic water had been allowed to stand and it was inconceivable that the resulting impacts on animal and bird life would be anything other than substantial. In the case of the Gulf of Mexico oil spill, he said the jury “was shocked how culpable the CEO was” in terms of actions leading to the spill. However, from the evidence presented on the day, they were not convinced that the resultant damage – especially in relation to birdlife as outlined in the indictment – was extensive.

Making ecocide the fifth crime against peace – along with genocide, crimes against humanity, war crimes and crimes of aggression – is the brainchild of Polly Higgins. The lawyer said that the mock trial had been a great learning process, identifying a number of gaps in the draft legislation that needed to be filled.

Michael Mansfield QC, who acted as the prosecutor in the trial, said that making the topmost individuals in a company responsible was critical if the law was to act as a deterrent. The proposed legislation has therefore been drafted so that individuals rather than companies are in the dock. In an actual trial, board chairmen, heads of banks and even government ministers could also be on trial.

“I’m not keen to see lots of politicians in the dock,” said Higgins. “What I want to see is people making responsible decisions.” For example, a crime of ecocide could force governments to change the incentive structures for businesses by redirecting subsidises for fossil fuels towards clean energy sources. In this way the dirty energy companies that are wrecking the environment today could be transformed into the clean energy companies of tomorrow.

The crime of ecocide includes the concept of “strict liability” or “superior responsibility” which overcomes the current situation whereby company executives simply use what Michael Mansfield called “the Spanish waiter’s defence” and claim, “I know nothing.” This is something we saw recently, for example in the parliamentary select committee questioning of Rupert Murdoch in the News International phone hacking scandal.

But what is the prospect of such legislation ever becoming law? Higgins presented the legislation in draft form to the UN Law Commission back in April 2010. The lawyer who says the Earth is now her only client thinks we have a critical window of opportunity between now and the Rio+20 Earth Summit in June 2012 to enshrine the crime into international law. This would require an amendment to the Rome Statute – which established the International Criminal Court in 1998 – by a two third’s majority of the signatories.

If this is achieved, the human race will have created a renewed opportunity to overcome our greatest and, up until now, most intractable threat. At a time when international climate negotiations have effectively collapsed, Higgins asserts that a “crime of ecocide will close the door to fossil fuels.”

For more information about the campaign go to: www.thisisecocide.com