Environmental crimes as crimes against humanity

April is a month for environmental disasters. Tuesday 26 April is the twenty-fifth anniversary of the Chernobyl nuclear meltdown, clouds of radiation seeping through the atmosphere, leaving land and crops devastated, milk contaminated, the countryside unsafe, and the emissions not limited to the immediate locale. Even now, ongoing effects are not wholly known, with repercussions remaining in ever-present fears of early mortality and birth defects, and a continued impact on the reproductive capacities and general health of survivors and those born post-disaster.

So, too, with Deep Water Horizon: a year ago this month, BP was responsible for an oil rig spill, the effects of which are still being felt, the ultimate outcome in terms of damage to the environment remaining unknown. Despite claims to the contrary, the clean-up is yet to be fully accomplished, if ever it can be. Environmental realities speak to the failure of the notion that 'clean-up' can result in a return to what was. Persistent reports of dying marshes and tar balls floating in the Gulf of Mexico surface.

The worst oil spill in the history of the United States, the oil rig spill saw five million tones of oil fill Gulf Coast waters. The Deepwater Horizon disaster killed eleven rig workers, birds and wildlife. It matched or exceeded in intensity and environmental degradation the Exxon Valdez oil spill off the coast of Alaska wrought from March 1989. One was a tanker disaster, the other involved an oil rig: both had oil spewing by the tonne into the ocean.

Yet these environmental catastrophes are never lessons from which those who create them, or have the power to prevent them, learn. If they were, why would these devastating episodes recur? Despite parallels between the Exxon Valdez and Deepwater Horizon problems of tanker and oil rig management, and despite the causes of the oil rig spill remaining hazy or at least, for the public, unclarified, the oil industry, like the nuclear industry, continues on a 'business as usual' basis.

Greenpeace reports that oil companies are 'looking to drill dangerous deep water wells in UK waters'. The proposed drilling is planned on a scale and in project terms no different from the drilling at the heart of Deepwater Horizon. The west coast of the Shetland Islands is one of the targets.

Similarly, despite public outcry and protests, Chernobyl did not end or deter nuclear industry development. The nuclear meltdown following the Japan earthquake has been blamed on the type of nuclear reactor in use at Fukushima. Yet that same reactor design is in widespread use in the United States. Australia's uranium sales have not halted, despite well-organised and outspoken opposition. Although pre-dating Fukushima the federal government said nuclear power is not on the agenda and since Fukushima voices in support of nuclear power as a source of 'clean energy' have been silent or muted, it is apparent that the push for the nuclear option in Australia remains high on the agenda of some politicians, industrialists and mining companies.

A cavalier attitude towards the environment, and irresponsible 'management' of dangerous substances and hazardous industries, is reflected in other major disasters. In the 1980s, noxious gases escaping from a Union Carbide (UCIL) plant in Bhopal instantly killed from 2000-4000 or in the weeks following, with estimates of an additional 8000 dead subsequently. Estimated injuries, according to official sources, numbered 558,125, with 3,900 classed 'severely and permanently disabling' and 38,478 falling under a 'temporary partial' classification. Ninety-two per cent were said to be 'minor', amidst claims of arbitrariness in the classifications..

Environmental consequences included damaged crops, destroyed animals and ruined land. Drinking water was contaminated and foodstuffs affected. As for the Three Mile Island meltdown, it took some five days from 28 March 1979 for management and authorities to determine the cause: mechanical failure and inadequate training of workers were blamed. Forty-thousand gallons of nuclear waste water were released into the Susquehanna River. The Kemeny Commission Report said there would be 'no case of cancer or the number of cases will be so small that it will never be possible to detect them'. Nonetheless, the accident was avoidable, and it is little comfort to workers and nearby residents that some may have been affected, however small the numbers. The finding simply confirms anyone affected will have no access to compensation law.

Ultimately these tragedies have global consequences, as does any exploitative, negligent or dangerous conduct affecting the environment. Victims and survivors often seem to have little or no recourse to redress and, where they do, this does not reverse the consequences of environmental damage. Governments desperately in need of industries to provide badly needed jobs and increase or maintain GNP levels may be reluctant to take action against heads, owners and managers of companies that create the problems. Powerful heads of foreign governments may pressure authorities to drop legal action or to compromise it, to protect the financial interests of foreign-owned companies. Local people suffering the greatest and most immediate damage may be forced to accept minimal compensation, if any at all, because legal processes are dragged out by the resource-rich defendants, whilst plaintiffs are unable to sustain lengthy litigation, whether financially or through psychological stress. A 'war of attrition' wins.

There are, however, ways of fighting back against these crimes against humanity. Stories From the Gulf, a documentary telling the story from the perspective of those affected, in their own words, with their own faces telling of the impact from the first blow, to its continued contamination today, is one way. The more public attention is focused on the ravages consequent upon actions of rapacious corporations caring only for shareholder returns and the bottom-line, the more likely resistance to governmental policies that enable this to occur and recur will build. In another advance, Bolivia is taking legislative steps designed to fight back.

The Bolivian law, currently before the Parliament, establishes a Ministry of Mother Earth. Its remit is to administer legislation extending legal rights to nature: rights to life, regeneration, biodiversity, water, clean air, balance, and restoration. The law establishes an ecological impact process, requiring all existing and future laws to comply with the 'Mother Earth law' and to conform to nature's environmental limits. 'Living well', or living in harmony with nature and people (the indigenous principle of 'Sumaj Kawsay') is to underpin both existing public policy and public policy initiatives. The mandate for 'consumer society' as the measure of development is overridden. 'Consumerism' as 'development' is no longer to be the driving force in business, government or the public arena.

A third way is to incorporate environmental crimes within the definition of 'crimes against humanity', bringing them within International Criminal Court (ICC) jurisdiction. Some countries – most tellingly the United States – are outside the ICC, through failing to sign-up to the Rome Statute establishing the ICC in July 2003. All environmental crimes prior to that date are outside the ICC's jurisdiction, too, unless the 'ambulatory impact' principle were to be accepted as bringing environmental crimes within power. Yet establishing environmental crimes as crimes against humanity, with ICC backing, would have flow-on effects. Ultimately, no country, however powerful, and no industrialists and corporate rulers, can escape censure through international law processes, however much they engage in avoidance, denial and the notion that money speaks always, and everywhere.

The Rome Statute Explanatory Memorandum says crimes against humanity are:

… particularly odious offenses in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings. They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority.

Article 7 of the Rome Statute defines them as acts being 'part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack', including murder, extermination, torture, persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender including inhumane acts intentionally causing great suffering, or serious injury to body or to mental or physical health. 'Extermination' includes intentional infliction of conditions of life. 'Torture' means intentional infliction of severe pain or suffering, physical or mental, outside lawful sanctions, upon a person in custody or under control of the accused. 'Persecution' is intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.

Article 30 establishes the mental element in crimes against humanity. Crimes come within the ICC's jurisdiction if material elements are committed with intent and knowledge. 'Intent' covers the person who 'means to engage in the conduct' and/or 'means to cause that consequence or is aware that it will occur in the ordinary course of events'. 'Knowledge' means 'awareness that a circumstance exists or a consequence will occur in the ordinary course of events'. 'Know' and 'knowingly' apply accordingly.

Where governments fail to ensure that comprehensive environmental policies and regulatory systems of corporate and industrial control exist or, if existing, fail to ensure they are effective, can stand as 'reckless' as to the detrimental consequences. In the ordinary course of events, absent strong environmental laws and independent agencies which apply them according to their intent, governments must be taken to be aware that 'circumstances exist or a consequence will occur in the ordinary course of events' in the nature of the disasters of which the world already has experience. Corporations that fail to adhere to regulatory requirements must be taken to know or be reckless as to the consequences.

To bring these disasters within the definition of 'crimes against humanity', either a broader definition should be adopted to ensure that environmental crimes are indisputably covered. Alternatively, the existing definition may be applied. Corporations engaging in reckless or intentional activity having a likelihood of impacting negatively upon the environment can be said to be engaging in acts directed against the civilian population: the civilian population constitutes the workers, their families and residents living nearby the factory, nuclear facility, plant or other hazard. Too often, these disasters disclose knowledge or recklessness on the part of decision-makers, with scant regard for the consequences. Workers often come from ethnically identifiable groups. They come from industrially identifiable groups and from groups defined by income, working-class status, and not infrequently by race/ethnicity.

It is no coincidence that disasters such as Bhopal take place in 'developing' countries dependent upon global corporations such as Dow Chemicals (UCLI was a subsidiary) for the provision of jobs and contributions to the economy. Yet the wealth generated generally finds its way to shareholders and others dwelling elsewhere. This supports an argument that environmental crimes may have a geographical impact upon particular civilian populations identifiable on racial, national or ethnic lines.

The importance of the ICC as a forum for environmental crimes is that these occur on a scale requiring a world court's attention. Equally important is the lack of will that may occur when governments are confronted with a 'choice' between pursuing through the local court system those responsible, or allowing their own nationals to languish in the cause of retaining the corporation's 'good offices'. When it comes to a choice between keeping in the country an industry and the corporation that runs it, or losing the operation to another country anxious to increase its GDP whatever the cost to the environment, workers and general population, economic imperatives too often win out. Environmental rights and the rights of the populace not to be exploited or endangered take second place. The great divide between the 'first' and 'third' world presents this 'option', placing 'third' world counties in such a dilemma.

Hence, the importance of an alternative avenue through which environmental crimes can be heard 'without fear or favour'. These crimes against humanity must be recognised for what they are, with the ICC to apply impartial justice.