Ecocide lawyer predicts global run of mock trials

Source:  BusinessGreen

Campaign to establish ecocide as the fifth crime against peace gathers pace after successful mock trial at UK’s Supreme Court

By Jessica Shankleman

A campaign to establish ecocide as the fifth international crime against peace appears to have gained further momentum following the first mock trial at the UK’s Supreme Court.

The campaign to make ecocide a crime is the brainchild of international lawyer Polly Higgins, who wants the UN to be able to brand companies that harm the environment as guilty of an offence comparable to genocide, war crimes or crimes against humanity.

The concept of ecocide has gradually secured more and more support since Higgins proposed it to the United Nations 18 months ago, but it was thrust into the spotlight last month when two fictional chief executives were found “guilty” of the offence at a mock trial on September 30.

Real barristers led the case for and against the chief executives of two hypothetical firms, albeit ones that closely mirrored real companies responsible for a major oil spill in the Gulf of Mexico and unconventional tar sands extraction in Canada.

The jury eventually branded the Athabasca Tar Sands projects a crime, but returned a not guilty verdict for the charge of ecocide against the company responsible for the oil spill.

Speaking to BusinessGreen, Higgins hailed the trial as a success, adding that the not guilty verdict actually helped to boost the campaign, by demonstrating that showing that the mock trial followed realistic lines and was not a publicity stunt targeting firms that are guilty of environmental damage.

She also revealed that a number of countries including Australia, Brazil and Mexico are considering holding similar mock trials and that businesses are becoming increasingly engaged in the debate.

“This is very much positioned as a proposal that the business community really needs to wake up to,” she said. “The insurance industry is very engaged on this right now, we put out invites to oil and gas companies to the trial.”

She added that one oil company has since invited a lawyer at the trial to offer best practice advice on the prospective law.

She refused to reveal the names of the parties involved, but said it showed that businesses are increasingly realising that ecocide could be passed as a law.

“It’s going to be sooner rather than later [that ecocide will become a crime], because if we leave it too late we’ll all be toast,” she added.

If the law were passed, Higgins believes that businesses would need to shift their green strategies from “risk management” to addressing the potential legal consequences of environmental crimes.

“It’s no longer going to be about saying there’s a 0.01 per cent risk of something going wrong, its about saying that if it does go wrong, we’ll end up in prison, so we’re not going to do it,” she said.

Whether or not a chief executive really would end up in prison would depend on their culpability, said Ian Lawrie QC, who prepared the defence for the mock trial and acted as a hypothetical instructing solicitor.

He argued that if a director had been let down by an employee who they believed to be doing a good job, they might be deemed less responsible than if they knew about the mistakes being made.

Lawrie also revealed he is due to give a talk to a group of solicitors in the coming weeks, briefing them on the potential ecocide law. While he has not been directly approached by firms for advice, one of his existing clients has asked to be briefed on the outcome of the trial.

Jane Russell QC of Tooks Chambers, who was part of the trial’s prosecution team, urged firms to prepare for ecocide becoming law by ensuring they understand how to comply with the prospective law.

“I think if somebody is advising oil companies on best practice that’s great,” she said.

But despite the increased interest in the proposal, Higgins said she was unlikely to formalise the campaign for the new law.

“So many people want to help make this happen, but I’m reluctant to start up a huge organisation,”  she said. “I’m a lawyer, so I don’t want to manage people and organise a campaign.”