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The ecocide trial

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The UK Supreme Court hears appeal cases of huge constitutional significance, the outcomes of which often ricochet through the political arena, challenging the status quo, and shifting societal perceptions. It is fitting then, that on 30th September 2011 this grand building in Parliament Square provided a stage for the hearing of Regina v Bannerman & Tench. In this mock trial, two CEO’s stood accused of aiding and abetting the crime of ‘ecocide’.

Currently just a conceptual crime, ecocide has been submitted to the UN for consideration as the fifth crime against peace (alongside genocide, war crimes, crimes of aggression and crimes against humanity). For those of you not yet familiar with the concept, ecocide is ‘the extensive damage, destruction to, or loss of ecosystems of a given territory……to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished’.

It was apparent that an historic day was going to unfold when the prosecuting QC Michael Mansfield swept into the courtroom with a copy of Polly Higgin’s book ‘Eradicating Ecocide’ tucked under his gown. With the Jury sworn in and a suitably grave-faced Judge in place the indictment was read aloud, detailing three counts of ecocide contrary to the (fictional) Ecocide Act 2010. The crimes involved one scenario identical to that of the Deepwater Horizon oil spill, and two incidents relating to the extraction of oil from tar sands. The particulars of all three counts involved the death of, and risk of injury to birdlife. The accused pleaded not guilty, generating a bout of jeering from the public gallery!

The first hurdle was encountered almost immediately when the defence asserted that the fictional indictment had been wrongly interpreted from the imagined statute. Fortunately the judge overruled this objection as he was of the opinion that Parliament’s intention was clear and unequivocal in this regard! Despite the pretend criminals, the fabricated evidence, a voluntary jury and not a pen stroke from the legislature, there was genuine frustration, anticipation and tension in the gallery, and a tangible feeling that there was very much something at stake.

For the next few hours the prosecution and defence cross-examined (real) expert witnesses, and ridiculed and undermined each others’ arguments. There were moments of derision when the defence had to ‘scrape the barrel’, arguing that thousands of dead oiled birds may have encountered the oil post-mortem, and that oil wasn’t necessarily the cause of death. But there were also moments of concern when each of us in the courtroom realised that some arguments, although absurd to an ecologist, might sound plausible to the average juror. For example, the defence argued that oil leaks naturally from fissures in the Earth’s crust, and is a natural product broken down by microbial activity, implying that ‘a little extra’ in the oceans as the result of a spill is not really all that significant. The defence even tried to put a positive spin on the crime his client was accused of, arguing that after an oil spill, where a no fishing zone is declared, the fish stock return to a higher than pre-oil spill level!

The prosecution’s attempt to bully the accused into a vile anti-nature outburst was stunted by the CEO’s sickeningly humble and deeply remorseful tone (he was an excellent actor!). Prosecution points with the Jury were soon regained however, when the accused callously remarked that in order to make an omelette a few eggs had to be broken. QC Michael Mansfield quickly retorted that this was indeed unfortunate for the eggs!

After a tense few hours the court adjourned to allow the jury time to reach a verdict. Meanwhile, in the Lawyer’s Suite, silks and wigs were tossed aside for tea and cake, and lively debates erupted around the room. Discussions were a strange hybrid of legal jargon, ecology, and raw passion, but the common theme was progress. Progress underpinned by a recognition that our political, economic and social systems need to be permeated with an ethos of earth jurisprudence and recalibrated accordingly.

Returning to the courtroom to hear the verdict delivered the muttering crowd expressed many doubts about whether it would be a victory for Gaia. This was not simply because the two leading barristers were equally matched intellectual titans, but because the material was complex and controversial, the situation novel, and the jurors were not a horde of eco-warriors. On the first count, concerning extensive damage to the ecosystem as a result of the oil spill, the accused were acquitted (audible gasps of disbelief!). On the second and third counts, concerning death and risk of injury to birds through tar sand extraction activities they were found guilty (audible cheers!).

The crowd, which had amassed to over 100 by this point, then migrated to the Supreme Court library for a press conference. This was a particularly fascinating part of the day, in which burning questions were answered, and rousing speeches delivered. Polly Higgins likened her struggle to that of William Wilberforce, Michael Mansfield called upon all of us, as trustees of the planet to maintain the trust, and I heard Ghandi’s wise words ‘be the change’ circulate the room more than once. I cannot speak for all who were present, but for my part I left the UK Supreme Court convinced that if the UN recognises ecocide as an international crime (one small amendment to the Rome Statute, requiring 86 signatures is all that is required) then the rules of the game will change rapidly. This will initiate a shift in the corporate world’s collective consciousness and subsequent actions – a shift that Earth and her people so desperately need.

Further discussion….

Below I have summarised some of the main threads of discussion I picked up on throughout the day. Feedback on these points via the blog would be most welcome. There is also a link to a blog by a Guardian journalist, followed by some interesting comments from the general public.

At the press conference concern was expressed that the prosecution had found it far too easy to trivialise the crime of ecocide and create a false sense of perspective. For example, one of the CEO’s was accused of causing the death of over 1600 birds, after they landed in his company’s toxic tailing pond. The defence argued that when one considers the number of birds eaten by cats each year in the US (100m) or the numbers that die on collision with windows (900m), this number is negligible. To most of us this is an absurd line of argument. Millions of people die from starvation each year, but no lawyer would dare argue that this negates the seriousness of the 2,000 people poisoned by a company dumping toxic waste. Nonetheless, concern remains that a gullible juror would be easily led with such statistics.

Another widespread concern was that the level of ecological understanding required from the lawyers, Judge and Jury, in order for nature to have a fair trial, is considerably higher than those groups typically possess. Add into this equation the chemistry of toxic dispersants, meteorological oceanography, avian migration and nutrient cycling in boreal forests, and it becomes difficult to see how the communication dynamics between expert witness, barrister and Jury might work. However, it was generally agreed that if such crimes of ecocide were really to go to trial the process would be considerably longer than a day, and parties would be well advised.

Aside from the technicality of the evidence and its contextual framework, certain wording of the Ecocide Act 2010 also generated some problems for the prosecution. It was stated early on by the judge that the jury were to understand ‘extensive damage’ to ecosystems against 3 criteria; size, duration, and impact. Unfortunately this gave the defence too much manoeuvrability. Post-trial I spoke to the head juror, who informed me that the defence’s closing statement had convinced them that the size (250 million gallons released from a point source), duration (4 months), and impact (highly debateable) of the oil spill did not amount to ecocide. This led to an acquittal on one count, which although disappointing helped to flag up the weaknesses in the Act. Polly remarked that this was an extremely positive aspect of the exercise, as she could redraft the proposed legislation accordingly.

In court, the concept of a duty of care to the environment wasn’t mentioned, and the prosecution had no interest in proving negligence. This was because the trial proceeded on the basis of strict liability – that the accused was liable for the damage caused regardless of personal fault. Polly Higgins explained her reasons for putting the company executive in the stand rather than the company itself. Fining a company for flouting environmental regulations under civil law will not be sufficient deterrent she argued. Profits gained from destructive practices are too lucrative for such practices to be derailed by nominal fines, and a monetary punishment will be passed on to consumers of that product, which sadly, in the case of fossil fuels, is all of us. However, the threat of a prison sentence is not one that could be easily ignored by a company’s top personnel, and the universality of the crime would mean that the UK had jurisdiction to prosecute, regardless of where the crime was committed. By imposing this superior responsibility, business leaders could be encouraged to adopt the precautionary principle, rather than throwing money at the aftermath. All agreed that preventative measures to avoid an incident of ecocide ever occurring is an optimal solution for all involved, particularly the planet.

Editorial Notes: You can read all about Wild Law here.

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