Every state has an interest in prosecuting those who destroy our planet – we must ensure there are no ‘safe havens’

By Rodrigo Lledó. Published 5-21-2024 by openDemocracy

Before leaving power in 1990, Chilean general and dictator Augusto Pinochet created a legal framework that guaranteed him absolute impunity. It didn’t work. He was arrested on charges of genocide and terrorism in London in 1998 by order of the Spanish justice system and, upon his return to Chile, finally had to face justice.

Years later, I had the opportunity to lead a team of public lawyers trying nearly 900 cases of crimes against humanity during the Chilean dictatorship. Though Pinochet was already dead, his accomplices had to be duly judged. But decades after his rule, human rights continue to be routinely violated in Latin America, often for defending the environment.

Almost 90% of the world’s environment-related killings occur in the region, according to Global Witness, an international organisation that tracks human rights and environmental abuses. A fifth of these incidents – which are only those that are reported, the true number is likely much higher – happen in the Amazon, which spans parts of Bolivia, Brazil, Colombia, Peru, Ecuador, Suriname and Venezuela.

Those reporting on environmental threats in the region also face significant danger. Many will remember the murder of Bruno Pereira, Brazil’s leading expert on isolated and recently contacted indigenous peoples, and British journalist Dom Phillips. The experienced pair were killed whilst travelling by boat through the Javari Valley near Brazil’s border with Peru, a region plagued by illegal mining, logging, fishing, and drug trafficking, while researching Phillips’ book on conservation efforts in the Amazon.

Those of us who lived under a dictatorship know that even when the circumstances are bleak, we must work to regain hope and cautious optimism. It was in this spirit that I and more than 700 youth activists, Indigenous environmental defenders and representatives of state parties and civil society organisations met last month in Santiago, Chile, for the third annual meeting of the Conference of the Parties (COP3) to the Escazú Agreement.

Sixteen countries have so far ratified the agreement, which aims to safeguard the right to a healthy environment for current and future generations and is the first in the world to include explicit provisions to protect human rights defenders on environmental matters.

Many more countries must now follow suit. Amnesty International rightly points out that some of the states yet to sign up – including Brazil, Colombia and Guatemala – are those where armed conflict, land disputes and extractive industries pose the most danger to environmental defenders.

The Escazú Agreement’s purpose is not to introduce new rights, but to ensure the protection of existing rights – particularly the right to access information and justice on environmental matters, as well as a right to public participation in the environmental decision-making process. Its goal is simple: establish systems to support every effort to move away from the lack of accountability that has historically prevailed in Latin America and the Caribbean.

Progress was made in Santiago. COP3 participants agreed on a new Action Plan that outlines strategies for states to protect environmental defenders’ rights, as well as measures to prevent and penalise any attempts to harm them. These include the establishment of free legal assistance for environmental defenders, and training for judges and prosecutors.

Encouraging state engagement with the Escazú Agreement means we must now seriously consider introducing comparable treaties in other resource-rich regions with a colonial history of unequal exchange, widespread environmental degradation, and violent repression against those advocating for human rights and the protection of nature. These include large parts of Africa and many Pacific island nations, which are also at the heart of the rush for the ‘transition minerals’ needed for renewable energy, such as cobalt and lithium.

The drive for lithium, used in modern battery technology for electric cars and other energy systems, has already seen new open-cast mining projects in Zimbabwe, Namibia and Democratic Republic of Congo (DRC). Lithium demand could well grow tenfold by 2050 under the net-zero plan of the International Energy Agency, an autonomous intergovernmental organisation.

Batteries are also partly behind the move towards deep seabed mining for nickel, cobalt, manganese and graphite, in addition to the so-called ‘rare-earth elements’ needed for a range of technologies, including the engines of wind turbines. One area of particular interest is the Clarion-Clipperton Zone in the Pacific Ocean, which hosts exploration contracts for 17 deep-sea mining contractors, covering an area of approximately one million square kilometers.

These activities must be carried out in a way that is safe for both the natural world and the often vulnerable populations residing in these resource-rich areas. Such communities must be able to safely defend their right to a healthy environment, along with their own well-being and livelihoods – and the best way to achieve this would be to criminalise ecocide.

Ecocide refers to the most severe forms of environmental destruction, such as vast oil spills, the clear-cutting of primary rainforests or the pollution of entire river systems. I and other members of an independent expert panel convened by the Stop Ecocide Foundation painstakingly crafted the following definition in 2021: “Unlawful or wanton acts committed with the knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment.”

Legislation to combat ecocide encourages corporate decision-makers and policymakers at the very highest level to take regulatory frameworks much more seriously. If they fail to fulfil their environmental obligations and risk committing ecocide, they could fall under the purview of criminal law, risking not only their personal reputation and freedom but also corporate reputation and share value.

The ecocide law conversation is growing louder by the day, which is particularly evident in recent and ongoing conflicts where environmental damage has been deliberately employed as a weapon. Russia’s destruction of the Kakhovka Dam, for example, was described by senior Ukrainian officials including President Zelensky as an act of ecocide.

One of the most significant political developments to date reached its legislative conclusion at the end of March, when the European Council formally adopted a revised Environmental Crimes Directive that includes a provision to criminalise cases ‘comparable to ecocide’. The decision will strengthen Europe’s environmental protection efforts and has been felt around the globe.

A growing list of states have also recently taken concrete steps towards criminalising ecocide, including the Netherlands, Scotland, Mexico, Brazil, United Kingdom, Italy and Spain. Chile amended its criminal code last August to include new economic and environmental crimes that incorporate offences comparable to ecocide. Remarkably, in March this year, Belgium’s Federal Parliament voted in favour of a new penal code that recognised the crime of ecocide.

The end goal of the ecocide law movement is to establish ecocide as the fifth crime against peace within the jurisdiction of the International Criminal Court. There, it will sit alongside those crimes humanity considers most heinous: genocide, crimes against humanity, war crimes and the crime of aggression.

When Pinochet was arrested in the UK in 1998, one of the most notable aspects of the case was that a Spanish judge had the authority to order his arrest for crimes committed in Chile, affecting mainly Chilean victims. Legal authority over a crime is typically based on a link, often geographic, between the prosecuting state and the crime committed – but as one prominent lawyer noted at the time, “in the case of crimes against humanity, that link may be found in the simple fact that we are all human beings”.

This is the principle of ‘universal jurisdiction’ – the notion that every state has an interest in prosecuting perpetrators of specific crimes of international concern, regardless of where they took place. The fundamental rationale is to ensure there are no ‘safe havens’ for those responsible for the gravest crimes, a category that should undoubtedly include ecocide.

Ecocide law offers legal protection and recourse against perpetrators of the very worst environmental harms. This legal protection enhances the safety of environmental defenders and strengthens their ability to advocate for environmental justice without fear of reprisal.

The Escazú Agreement complements this law by providing environmental defenders with the tools needed to advocate for the protection of their rights and the environment. Together, these mechanisms contribute to a legal framework that protects the environment, and its defenders, and draws a moral red line beyond which actions that damage the planet are deemed unacceptable – fundamentally shifting the culture surrounding environmental harm.

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