Environment Bill — House of Lords, 2021-09-15
Topic: Environment
Donald Thomas (Liberal Democrats, Centre to centre-left): My Lords, I am very grateful to the noble Baroness, Lady Bennett, and other noble Lords who signed this amendment, for bringing forward the interesting concept of ecocide. I am sorry that I missed the debate in Committee It was the use by the United States of Agent Orange as a means of destroying the Viet Cong’s forest cover in northern Vietnam, Cambodia and Laos which brought to the attention of the international community the devastating environmental harm that it causes and the ensuing refugee crisis. When Saddam Hussein burned 600 Kuwaiti oil wells, the resultant atmospheric pollution spread as far as the Himalayas and caused a severe threat to the surrounding fragile desert ecosystem. There have been many other examples of armed conflict causing environmental destruction The Rome Statute of the International Criminal Court deals with the four core crimes: genocide, crimes against humanity, war crimes and the crime of aggression. Article 8(2)(b)(iv) of the statute specifies that, within the scope of international armed conflict, the following actions could constitute a war crime: "Intentionally launching an attack in the knowledge that such attack will cause … widespread, long-term and severe damage to the … environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated" As part of the review of the genocide convention in 1973, a draft international convention on the crime of ecocide was prepared for UN consideration by Professor Richard Falk. He outlined an offence, including the use of chemical herbicides to defoliate and deforest natural forests for military purposes and the use of bulldozing equipment to destroy large tracts of forest or crop-land. This was all within the concept of military conflict. Of course, it is a precondition of a war crime that there is a war, or at least armed conflict, and that there is a commander who can be made responsible for his conduct. This amendment might be appropriately considered as a military offence in the Armed Forces Bill currently before the House. But I suspect that the noble Baroness is more ambitious and would wish to include in her definition of ecocide deliberate destruction of the environment outside a war setting The problem then becomes twofold. What is the actus reus and what is the mens rea? If President Bolsonaro were to decide, as a matter of policy, to destroy the rainforest to increase open grazing land for cattle, he does not do so merely out of a malign desire to destroy but with the intention of increasing the economic prosperity of his country. He may be right, or he may be completely mistaken, but has he caused widespread, long-term and severe damage to the environment which is clearly excessive in relation to the economic advantage anticipated? Would a court question his political decision To bring the matter nearer to home, if Prime Minister Boris Johnson or Nicola Sturgeon were to agree to the exploitation of the new Shetland oil field, many would argue, including me, that it would do immense damage to the environment and contribute significantly to climate change. Even if the members of the International Criminal Court agreed with that assessment, they are hardly likely to lock up the Prime Minister or the First Minister of Scotland Rachel Killean, of Queen’s University Belfast, has thoughtfully gone in a different direction. She seeks to develop the concept of a separate chamber of the ICC with a jurisdiction to deal with environmental destruction. She believes in "‘greening’ the Rome Statute" and argues that "the reparation framework adopted by the International Criminal Court" for war crimes—the payment of compensation— "offers an opportunity to … respond to environmental destruction" She postulates that the court could have jurisdiction in respect of states as well as individual politicians, and could award "reparations that explicitly recognise the harm caused by environmental destruction" It would be difficult to expand the jurisdiction of the court from its existing concern with genocide and war crimes—