This is Polly Higgins, she’s a barrister, and an eco-warrior. She wants there to be an international law to punish ‘ecocide’.
This is why this is an absurd idea, in case it wasn’t already obvious.
Higgins idea is that ecocide is
“the extensive destruction, damage to or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory have been severely diminished”
There are already many problems with this idea, and it has only just been taken out of its box.
The biggest problem is that ‘the extensive destruction, damage to or loss of ecosystem(s) of a given territory’ has happened spontaneously, or ‘naturally’, throughout history. Perhaps in the same way, entire groups of people have perished. But we would not call the death of a given population of people through plague, famine, or some other natural catastrophe ‘genocide’, which is what Higgins wants us to understand ‘ecocide’ as equivalent to. And by the same token, there has never been a natural genocide.
You couldn’t try ‘nature’ for the spontaneous transformation of forest into savannah or desert, nor for the emergence or passing of an ice age. Yet these things surely are nothing but ‘the extensive destruction, damage to or loss of ecosystem(s) of a given territory’ which ‘severely diminishes’ the ‘peaceful enjoyment by the inhabitants of that territory’. So in order to cope with this problem, Higgins makes a distinction between ‘ascertainable ecocide’: deforestation, oil spills, fossil fuel extraction, pollution-dumping; and non-ascertainable ecocide: tsunami, earthquake, typhoon, Act of God. The line of interest here is that ecocide is caused ‘by human agency or by other causes’, but it’s only ecocide that is ’caused by human agency’ which is pertinent.
Several new problems emerge.
1. Is ‘ascertainable ecocide’ (deforestation, oil spills, fossil fuel extraction, pollution-dumping) a problem for ‘the inhabitants of [a] territory’, if it is not the case that ‘peaceful enjoyment by the inhabitants of that territory have been severely diminished’? This is the ‘if a tree falls in the forest and there is nobody to hear it, does it still make a sound’ question for the eco-lawer-warrior.
2. Is there not an acceptable level of diminished ‘peaceful enjoyment by the inhabitants of that territory’, and what is it? That is to say, surely we accept the occasional oil spill, because pulling oil out of the ground creates many new possibilities for human life, which are not possible otherwise. Put another way, isn’t the occasional disturbance of ‘peaceful enjoyment by the inhabitants of [some] territory’ the price of a better condition of existence?
Before any light is shed on these questions, Higgins outlines the concept of ‘crimes against peace’, which have already been established, and which are tried in the International Criminal Court (ICC).
The existing ‘crimes against peace’ are crimes against people: genocide, crimes against humanity, war crime, crime of aggression. They are, according to Higgins:
- a) Principles of universal validity which apply to civilisation as a whole
- b) The prohibition of certain behaviour
- c) Universally outlawed
- d) morality based on the sacredness of life
These definitions are somewhat redundant. ‘Principles of universal validity which apply to civilisation as a whole’, for instance means no more than ‘law’. And most laws are to some extent the ‘prohibition of certain behaviour’. Point c — ‘Universally outlawed’ — is a mere restatement of a and b. Higgins could have shed as much light on ‘crimes against peace’ by saying ‘laws are laws’.
‘In essence’, says Higgins, ‘a crime against peace is a morality based on the sacredness of life’. Can she really mean that?
Genocide is a ‘crime against peace’, so a simple substitution of equivalent terms gives us the following paraphrase:
Genocide is a morality based on the sacredness of life.
It should be clear here that Higgins is talking gobbledegook. To be charitable (or rather, to give sense to her proposition such that we can take issue with it) what she seems to want to say is that life is sacred, and that therefore there is a moral imperative to protect life, and that the laws which prohibit ‘crimes against peace’ are intended to serve that imperative. The laws and the crimes they prohibit are not ‘a morality’; laws are not morality, and morality is not law. One can act morally outside of the law, and conversely one can act immorally within the law, and one can seek to turn moral ideas into laws, but they will never be equivalents. Higgins, the barrister, has presumably studied law, and so really ought to be aware of the distinction. Moreover, Higgins should be aware of the distinction between a crime and a law.
The difficulty Higgins has with a clear exposition of the ‘crimes against peace’ and their philosophical basis is owed to the fact that she wants to make them do what they were not actually designed to do. Higgins wants to extend ‘crimes against peace’ to protect all life, whereas they are originally conceived to protect only human life. That is to say that the moral foundation of the laws prohibiting ‘crimes against peace’ is the understanding of the sacredness of human life, not life in general. Thus her list a through c is designed to sound like a plausible set of premises, but in fact are tautologous, ultimately meaningless, and are not reflected in the wider literature about ‘crimes against peace’. For instance, if you search for these expressions on Google, you will find that it returns results that link mainly to discussions about Higgins’ own conception of ecocide, not international law. Thus this outline of crimes against peace is very much unique to Higgins.
So it is only after her reinvention of ‘crimes against peace’ that they become about protecting ‘the well being of life’, and a sleight of hand allows her to extend this to ‘the well being of all life’ as though she had only made a minor adjustment to the language:
These crimes are put in place to protect and uphold the well-being of life. I’m proposing that we extend that definition to including a fifth crime. And that is the crime of ecocide. And we extend the well being of life to not just human life, but to all life.
But this is far more than a minor adjustment to the language. It is a complete re-writing of the language and its meanings, and the philosophical underpinnings.
Now we have an answer to our two questions from the first film. The ‘inhabitants’ who are the victims in the definition of ecocide:
the extensive destruction, damage to or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory have been severely diminished
… are any entity which is ‘life’. I.E. the members of the ecosystem are the inhabitants of an ecosystem. Tree, bug, germ, mouse, bush, mushroom… are all now protected by the law prohibiting ecocide.
So the most obvious (and fatal) problem for Higgins definition of ‘ecocide’ is that it should only be prohibited by law if we hold with its premise that ‘all life is sacred’. Some people may well believe such a thing, but they are few and far between, and there is no automatic reason to assume that people would necessarily agree with this, in the way that we can expect people to have mutual regard for human life.
That should be enough to show that ‘ecocide’ should not be made a crime. It is a matter of conscience, perhaps. But not a matter for courts of law. Nonetheless, there emerge some curious contradictions and redundancies from the original conception, which reveal more about Higgins ‘thinking’ in particular, and of environmentalism in general.
On Higgins’ view, human agency makes humans subject to the law prohibiting ecocide in order to protect all life. But the definition does not protect all life from itself, nor humans from other organisms. Humans, then, are exceptional, in that the faculty of agency makes it possible for them to be culpable, yet is not understood to give them any privilege, nor even any protection from the elements, or from any natural thing.
This is remarkable, because human agency is the exclusively human attribute from which the premise that ‘all human life is sacred’ emerges. It is the faculty of agency which makes human life sacred. Only a human can reason about the sacredness of anything, be it humanity, pig, or life. This is the premise of the international laws intended to protect human dignity from systematic degradation: mass murder, humiliation, persecution, and so on. But the object of sacredness in Higgins’s view is in the first instance human life as a mere biological process, not ‘human life’ as a mere condition of agency. Higgins misses the very important thing about human life: it is experienced; it has purpose, intention, values. Instead, on Higgins view, the thing which gives human life its identity is ‘agency’ as though it were some arbitrary characteristic, such as extravagant plumage, adaptation to a particular ecological niche, or some well-developed instinct that makes it subject to laws.
Higgins has denied the very thing which made ‘crimes against peace’ particular to humans. The consequence of her move from human exceptionalism to anti-humanism is that she commits the crimes that the definition of ‘crimes against peace’ were designed to prohibit: she degrades humanity. She credits humans with less moral worth than slugs and toads, not merely because she privileges some abstract notion of ‘life’ over ‘being alive’, but because she turns agency — which ought to be a characteristic that privileges human life — into something which makes humans obliged to endure life within natural limits, while being the only organism capable of both endurance, and conceiving of a means to improve it: chopping down forests; drilling for oil, coal and gas; eradicating pests and diseases; intensive agriculture, etc.. etc.. This is what is meant on this blog by ‘anti-humanism’. It runs deep throughout environmentalism. Yet it is presented by environmentalists as a straightforward telling of the facts.
More trivially, perhaps, is the redundancy within the definition of the crime.
the extensive destruction, damage to or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory have been severely diminished
Now we know that the word ‘inhabitants’ means any living thing, and that living things comprise ‘ecosystems’, and that ecosystems are geographically bounded, we can again substitute equivalent terms in the expression to produce the following absurdity:
the extensive destruction, damage to or loss of ecosystem(s) of a given ecosystem(s), whether by human agency or by other causes, to such an extent that peaceful enjoyment by the ecosystem(s) of that ecosystem(s) have been severely diminished
Higgins admits as much in a circuitous rewording of an existing crime against peace that protects the environment, the emphasis of which she again moves from people to all life in general.
‘widespread long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall COMMUNITY advantage anticipated’
= the extensive damage to the ecosystem(s)
The law Higgins modifies had obviously been designed to protect those caught up in a war from aggressors damaging the productive capacity of the land. The law was never designed to protect ‘nature’ or ‘life’ in general. But through word play, and after concealing the basis for the law, Higgins radically transforms its purpose. The word ‘community’ had previously been ‘military’. Thus prohibiting any force from causing damage to the resources on which human populations depend, in order to inflict punitive or malicious damage to that population. The ‘natural environment’ gets substituted for ‘ecosystems’ and the word ‘community’ gets substituted, again, for the ‘members of ecosystems’, i.e. all life. So once again, the substitution reveals the tautology.
widespread long-term and severe damage to ecosystem(s) which would be clearly excessive in relation to the concrete and direct overall ecosystem(s)’ advantage anticipated.
Clearly there are problems now with the proportion of any ‘ecocide’ crime. Ecocide could almost be any crime, otherwise. Chopping down a tree would deprive the ‘community’ of its ‘ecosystem’. Is chopping down a tree ‘ecocide’? Two trees? A small forest? To establish some proportion, Higgins establishes some existing legislation might be useful, with the definition of ‘size, duration and impact’. Size can be easily established, according to Higgins by doing things like looking at satellite images to gauge the extent of deforestation, for instance. Various agencies monitor the ‘depletion of species’, she says, and this information could be made available.
The recent Mexican gulf oil spill is given as an example of long-term extensive damage. Leaving aside the questions that exist about the actual extent of the damage caused by the oil spill, and taking Higgin’s claims at face value, the spill would surely not fall under either category of ‘ascertainable ecocide’ or ‘non-ascertainable ecocide’. After all, it wasn’t a deliberate leaking of oil into the ocean. And to compare it to the existing equivalent, genocide, no Nazi would have been able to pretend that they ‘accidentally’ murdered 6 million Jews. It wasn’t human ‘agency’ which caused the oil spill, because ‘agency’ isn’t a factor in the kind of negligence that would ’cause’ an accident. Moreover, since it is people, and not abstract agencies such as ‘companies’ that she wants to try, it would be hard to locate the individuals ‘responsible’ in such a huge operation. Yet presumably, she want’s to hold BP’s directors — who likely had little to do with the actually technical process — to account. Again, the concept of agency in Higgins’ understanding is limited, and only serves to make humans morally culpable, without being in fact independent moral agents.
Higgins moves on to establish ‘why’ it is necessary to make ‘ecocide’ a crime.
- 100 living species become extinct
- 1,000 acres of peat bogs are excavated
- 150,000 acres of tropical rainforest are destroyed
- 2 million tons of toxic waste is dumped
- 22 million tons of oil are extracted
- 100 million tons of GHGs are released
… each day
These look like dramatic figures. But the basis for #1 at least, can be ignored straight away as completely alarmist. The definition of ‘species’ is not particularly robust, and the only way that the existence of a species can be established is by a positive identification. The non-existence of a species can only be established by looking everywhere, simultaneously — an impossibility. These results are the product of a model, and the model itself is going to contain far more assumptions than facts. And just as the notion of ‘species’ is ambiguous, so too is the definition of ‘extinction’. The weakest of all material claims made by environmentalists are about ‘biodiversity’ and extinction.
We can also ask ‘so what’ to the remaining questions. What is the problem of 1,000 acres of peat bog being excavated? What value does peat have, while it merely sits there, being peat? And isn’t Higgins also against the extraction of fossil fuels which would make it unnecessary to extract peat — if it’s being used for energy? How much rainforest is really being destroyed? Where? and isn’t it also true that many parts of the world are seeing massive reforestation? And again, isn’t it the case that the real saviour of the forests is the oil well? If there’s oil and coal available, who in their right mind would want to use wood?
The UN, says Higgins, as though it were an authority, says that ‘ecosystems are at tipping point’, as if that meant anything. But it doesn’t. What is a ‘tipping point’? More to the point, what is an ecosystem, and how is it determined what its ‘tipping point’ actually is? Nobody knows. Onto this bogus ecological reasoning, Higgins adds the headline findings from an attempt to determine the financial value of ‘ecosystem services’, and the ‘damage’ to them that has been caused by ‘corporates’. Between $2.2 and $4 trillion, she claims, of ‘ecocide’. But is this spurious figure a big price for the benefit? What’s the point of assessing costs without assessing benefits? Don’t ask the UK’s former chief prognosticator, Sir David King, who believes that the conflicts in Dafur and Iraq are fought for water and oil respectively, and that as such, we can say that this century will be the century of ‘resource wars’. But what does a scientist know about wars, and why they are fought? The claims can be easily dismissed. Dafur is a region that has historically experienced long and deep periods of drought — mother natures own form of ecocide; and before either of the military campaigns in the gulf, the price of oil stood stable at around $20/barrel. At such low prices, the real problem is not resource scarcity, but on the contrary, its over abundance. David King’s advice to the government is as ill-conceived as Higgins’; yet King was actually appointed. The lunatics are running the asylum. But if only it was as simple as madness…
We have to break the cycle, says Higgins, of ecocide>resource-depletion>conflict>war. She demands that it be broken urgently. But her claims are premature. A recent study in PNAS concluded that
Scientific claims about a robust correlational link between climate variability and civil war do not hold up to closer inspection. […] The graph shows change in the estimated probability of civil war (five variants) for six alternative climate measures, based on 1,000 simulations for each model specification. Given the feeble impact of climate, illustrating the range of uncertainty is more meaningful than plotting point estimates of predicted probabilities. In all but one of the specifications, the 95% confidence bands for the climate variables include both positive and negative effects. Moreover, neither temperature nor precipitation performs consistently across models as even the sign of the mean first difference estimate for a given variable is sensitive to model specification. Only the final model (5f in Fig. 2) returns a statistically significant climate parameter estimate; apparently, major civil war years (i.e., years with at least 1,000 battle deaths) are more frequent in years following unusually wet periods—a result that directly contradicts the notion of scarcity-induced conflicts.
As has been argued on this blog, the naturalisation of complex social phenomena such as conflict and poverty is one of the most damaging things about environmentalism. Now we can see this danger made real in the prose of Higgins’ argument. She pretends that a law abolishing ‘ecocide’ will prevent war. But surely the reality is the opposite. The implication that wars are fought for resources should create an imperative to locate more resources, and better ways of using them. But instead, Higgins wants us to reduce the production of water, and oil. Far from reducing the possibility of resource wars, by limiting their supply, environmentalism and environmental institutions such as laws against ecocide will make them happen.
Higgins now moves to consider ‘lessons from history’. And this is something we’ve all seen before: the comparison of arguments against environmental regulation with arguments against the abolition of slavery. Slavery is a topic discussed on this blog here, here, and here. And as we point out, the comparison of making equivalents of using oil and using slaves depends on the degraded understanding of what makes slavery wrong in the first place. It should be no surprise that somebody who only holds with the limited understanding of human agency that Higgins has should find it easy to draw a comparison between denying humans the right to express their freedom and filling up the car.
Listen carefully to Higgins’ narrative:
We can see what happened 200 years ago with the aboltion of slavery. At that time there were 300 companies trading either directly or indirectly in slaves. There were 600 million slaves on the market. What we had there was upstream, the traders who were the 300 companies and downstream we had the 6,000 consumers. They were the end users.
In 1810 — 200 years ago — there were just 1 billion people on the planet. The graphic says differently, but in the voice over, Higgins claims that 600 million of them were slaves. I assume that she intended to say that there were 6 million slaves, but that she got confused. But the mistake it speaks generally about her lack of fluency with the facts she’s using that she didn’t spot her mistake as she said it, nor even in post production, nor even in watching it since it has been published. But the figure is meaningless in any case. Slavery, of course, only features in this argument to provide a moral absolute: something we’re already committed to. It’s a lazy way of making an argument. And it gets more sloppy. The abolitionists’ strategy was to turn off the supply of slaves, and so it is with resource ‘exploitation’: we should turn off supply. We should make those responsible for supplying resources also responsible for ecocide. And the arguments against abolishing slavery look like the arguments against environmental legislation. Even if this is true — which seems unlikely, unless you think that a barrel of oil ought to have legal rights — it’s true only by virtue of the facts of the market. Arguments about the regulation of any trade will take a similar form, because, although the commodities in question may be different, the mechanism of their exchange is always similar. That’s the point of capital: it permits the exchange of things of different types: labour, wool, coal, and food have little in common as substances, but can be exchanged for money, and vice-versa. There is absolutely nothing of interest, therefore, in the comparisons Higgins draws.
Higgins now considers some institutions that already exist, which may serve the aim of fighting ecocide. There’s not much to say about the nonsense, except to say that she again extends the definition of existing legal definition to encompass all organisms, not merely people. She then extends this further to argue that ‘We need now to move towards protecting all community interests. So that would be the water, as well as the soils, as well as the air, as well as the land, as well as the species who live within that territory.’ It would not be able to exist as an organism in the world Higgins wants to create.
Ecocide is already understood as a moral crime, says Higgins, it just needs to be made formal. But how true is this?
It may well be true that oil spills and the like cause public anger. But this is largely because it has an effect on people, and that such a mess for both humans and wildlife might, in many cases, have been avoided by due care. The claim that the public reaction to environmental disaster legitimises the creation of a law banning ecocide is a stretch: most people do not think that trees, nor water, air and land, have rights.
Punishing ecocide with fines doesn’t work, says Higgins, only incarceration provides the disincentive necessary to prevent it. She would lock up CEOs, heads of states, heads of financial institutions. These people would not want to jeopardise their liberty, and so would refuse to permit, or involve themselves with anything likely to cause ‘ecocide’. Thus they are turned from planet-destroyers into planet-savers. Meanwhile, of course, nothing would happen. No mining of energy. No economic or technological development. No chemical production. No industrial agriculture. No hospitals. No schools. No Factories. There could only be subsistence lifestyles in Higgins’ bleak Utopia.
Higgins now summarises her argument, begining with an account of ‘strict liability’ as it stands in the UK.
Parliament creates an offence of strict liablity because it regards the doing or not doing of a particular thing itself so undesirable as to merit the imposition of a criminal punishment on anyone… irrespective of that party’s knowledge, state of mind, belief or intention.
The involves a departure from the prevailing cannons of the criminal law because of the importance which is attached to achieving the result which Parliament seeks to achieve.
On this basis, shouldn’t proposing the crime of ecocide should fall into this category? It is a disgusting idea, which degrades the very concept of humanity, making the human no more significant before the law than an ant, worm, or for that matter, germ… Except that, unlike animals, humans can be tried and punished. This idea, then, is worse even than the medieval practice of trying animals as happened throughout Europe. Infestations of rats, insects, leeches would result in their being summoned before a court, and threatened with excommunication. They were, as beings in creation, subject to Gods law, and as such were given legal representation, and often won, leaving humans to suffer. It took the enlightenment to end such practice. And it was in this era that the concept of humanity developed, such that we would now see the summoning of an animal to court, or extending rights to animals as legal subjects as ridiculous. Until now, that is. Higgins, who wants to extend legal rights to trees and insects — the ‘wider earth community’ — epitomises the end of humanism:
View the planet as an inert thing, and what we do is we impose a value. We commoditise the planet. That is property law. View the planet as a living being, and we recognise the intrinsic value, and we take responsibility.
What was discovered during the enlightenment was that nature has no intrinsic value. Value is an inherently human concept. Only humans valorise. Nothing else is capable of understanding value. Without humans, then, the planet really is inert. Moreover, it is evident that the planet is not a living being — no planet is a living being. By presupposing a ‘value’ for ‘the planet as a living being’ Higgins reduces the whole of humanity into merely another species, and this creates the basis of a system of law — a powerful set of institutions — to extend the reach of her poisonous ideas. As I pointed out in the previous post, Higgins wants to replace the tyranny that exists as a figment of her imagination as a real, functioning, institution: eco law, which punishes eco criminals. The real purpose of eco law is to create an eco-tyranny, in control of resources in exactly the way Higgins imagines EON to be.
If the law is an ass, its mother, the law-maker is presumably not going to be troubled by the family resemblance being pointed out — she is after all, by her own admission, no better than any other ‘inhabitant of the wider earth community’.
It seems unlikely that her ideas will ever be realised, because there would be a very real fight about any such law and the institutions to serve it being created.
Yet having said that, there remains an important question. How is it possible that someone can come to embrace these absurd ideas without seeming to have reflected at all critically on their soundness, and their consequences? If it can happen to Higgins, can’t it happen to any other eco-loon in a position of power?
This blog has argued previously that environmentalists have tended to alienate themselves through the expression of their own ideas in the public sphere. Maybe this has two implications.
First, we should openly point at and mock Higgins and any institution that gives her ideas positive space: the Guardian, and the UN, in this case.
Second, we should take more seriously the fact that the positive developments that the last few centuries of human history have produced seem to be disappearing from public debate. We now have Higgins demanding a forced march back beyond the dark ages. We should be sure about what we are defending, and not imagine that this is just a debate about whether or nor ‘climate change is happening’ that can be settled with the correct scientific account. It’s bigger than that, and even climate change alarmists should be concerned about what Higgins proposes.