Earth Protector — an interview with Polly Higgins
A long time ago, in a galaxy far, far away, Polly Higgins found herself staring out of courtroom windows during a high-profile corporate injury trial she was about to win. The view was leafy and picturesque but her thoughts were not. It was the final day of an arduous 3-year case, in the Court of Appeal, in the Royal Courts of Justice in London, awaiting the judges verdict.
Higgins, then a highly paid barrister on the cusp of breaking into the very top echelons of UK advocacy, found herself in the midst of a powerful and disturbing satori experience. The very serious injuries inflicted on her client — the subject of that 3-year high-profile case — provoked a sudden chain reaction of awareness in her and a profound grief for the damages inflicted globally against the earth and all its inhabitants. One individual injustice a grim living metaphor for planetary-scale crimes.
“I found myself looking out of that window and thinking it’s not just my client that is very badly injured, so is the earth. And something needs to be done about that… I looked out beyond my immediate surroundings, I looked out expansively to the earth.
“I was in a very high courtroom and during the delay my mind’s eye started to soar above the trees and Lincoln’s Inn fields, right above London and ascending up to look right out across the world. In my mind’s eye I could see pictures of destruction and harm. I could see the Athabasca tar sands. I could see the Amazon. I could see indigenous communities being forcibly pressurised off their land. I could see big industrialised agriculture and monocropping. I could see chemical sprays. I could see polluted rivers and birds and bees dying. Everything was coming through very fast. This enormous harm…
There was a sense that everything was discordant. And yet within that, I had a sense of what a world that was harmonious could look like. I had a sense of what that could be and an understanding that law has a very important role to play in all this. How we set the rules of the game of life if you like.”
On returning to her chambers victorious, her colleagues toasted her success and confirmed that she was now well and truly in the ‘major league’, that this was her moment to ‘fly’. What would be her next case they eagerly asked? To expressions of shock and no little dismay, she informed her team and colleagues that she wouldn’t be taking another case, she would instead be taking a 12 month sabbatical to ponder the profound and disturbing experience she had had, answer some of the questions it provoked, and to decide what to do next. They thought she was mad.
“There are moments in our lives, and it’s said there may be only 6 or 7 in a full life. Critical choice points. Where we can step off the route that we’re on and step into the unknown. And it will fundamentally change your life… I came away from that moment thinking how do we create, we create, a legal duty of care for the Earth?”
This leap into the unknown was to change Polly’s life profoundly as she embarked on one of the most ambitious and important legal undertakings of this century. She had a new client, one definitely taken pro-bono, one critically and cripplingly underrepresented. It seemed painfully obvious that the Earth was crying out for a good lawyer. And she was that barrister.
Engage hyperdrive to the present day where the Permaculture Association caught up with Polly. We discuss a fascinating decade of work to bring about the fifth great International Crime Against Peace — Ecocide, the creation of the Mission Lifeforce project and its aim to support small island states at the lapping shoreline of disastrous climate change; building a legal precedent and protection for Conscientious Earth Protectors; and how this all ties in nicely with George Lucas’ Rebel Alliance.
PA (Permaculture Association):
Can you explain the law of Ecocide for our readers?
PH (Polly Higgins): Sure. At the moment (the rules of the game of life) are stacked in favour of the polluter, of the destroyer, of the dangerous industrial activity. There’s a state immunity around dangerous industrial activity. State sanctioned industrial activity if you will. And that’s because it is lawful. Law has been put in place that protects that position. But it doesn’t protect the greater wellbeing of civil society, of humanity, of nature, of ecosystems, of future generations. It’s very much premised on an absence of conscience. Because of course if you are coming from a place of conscience, you care for the greater good, for the collective. But it’s the absence of it that allows you to continue to cause harm and to put laws in place that foster that.
So for me the change that was required was pretty fundamental. It was recognising that here we were all fighting upstream to try and change the course of the river when in fact all you need do is turn and flow downstream by just changing one law. Putting in place the crime of Ecocide into International law.
Ecocide is “loss or damage to, or destruction of ecosystem(s) of a given territory(ies), such that peaceful enjoyment by the inhabitants has been or will be severely diminished.”
Of course it sounds very easy to ‘just change one law’ and, ‘Bob’s your uncle’, a click of your fingers and it’s done, but obviously you have been working very hard at this for a number of years, so what has that process been like?
It was back in 2009. I was on stage at the Copenhagen Climate negotiations with George Monbiot. There were about five or six thousand people. We were the warm up act for Hugo Chavez and Evo Morales and someone in the audience stood up and said, “We need a new language to deal with this mass damage and destruction of the earth” and it was a real big lightbulb moment, it was like, he’s right, it’s just like Genocide… only it’s… Ecocide. That really should be a crime, why is it not a crime?
And that really led me down the rabbit hole of serious and rigorous legal scrutiny of whether or not that could become an international crime. Three months later I submitted that to the international law commision at the United Nations. To put in a proposal to create an amendment to what is possibly the most important document that we have, the Rome Statute, that codifies the great international crimes and set up the International Criminal Court in the Hague. That was March 2010 and at that time I thought, fine, this shall be done… (Polly laughs heartily at this).
Of course it’s now 2018 and I had no idea where this was going to lead me! This comes back to your critical choice moments. You’re stepping onto a journey and you have no idea where it’s going…What I can say is that I’m on the job until it’s done. I’m not going anywhere. Every year, myself and an amazing team of lawyers, judges, forensic experts who all work pro-bono, go to the General Assembly to make representations. We’ve now launched Mission Lifeforce to help fund delegates who are committed to coming forward. We’re working with small island states who will take this forward in due course and helping pave the way for this to be put in place as an international crime.
The legal logistics of this are very straight forward. It’s actually the financial logistics that hold it up. Those who require this law most, the small island states who are facing climate Ecocide from rising sea levels, tsunamis and extreme weather events. They have the least amount of finance to do that. That’s why we launched the Mission Lifeforce campaign.
You’ve explained the project and progress from your perspective but how is this playing out on the other side? It is only necessary to get one head of state signatory to take your law proposal through to being considered in full with a view to it becoming law. How is that progressing?
One of the biggest issues we come up against regularly is that although a number of them (small island states) are signatories to the Rome Statute, therefore are entitled to attend the annual meetings in the Hague and make submissions. They actually don’t even have a seat at the table. Because they can’t afford to pay for their annual subscription fees, they can’t afford the flights and that’s why we set up the campaign (Mission Lifeforce). It’s very early days but literally within 2 weeks of launch I was able to take a whole team (of seven) to last year’s meeting to make representations and attend critical meetings. It requires scaling up in a big way. You know, like anyone engaged in the likes of permaculture, it starts with small seeds and then nurturing and tending to them to then start taking this further out and faster and bigger, really informing the world.
So one aspect is allowing those who would stand up for Ecocide at the UN access to those meetings. What about Europe and North America who are a: not currently as affected by climate change and b: are in thrall to corporate power and have vested interests in the status quo?
Well it’s about the dance. Do you choose to dance with the guy who keeps on standing on your foot and causing you pain or do you dance with someone who allows you to glide around George Clooney style? I know which one I would choose! We are offering an ‘amicus’ brief — amicus being friend. We’re offering advice to those that want it. And it brings in like-minded people. Those that don’t want to engage, it goes over their heads. One of our biggest challenges though is that often these small island states are in a state of fear of the consequences of standing up and speaking out. Partly because they are funded by the likes of the USA. On the other hand it’s about finding those in the West who recognize the corruption element. Because it is a political corruption.
So do you have any heads of state on the cusp of proposing the law? How close are you?
Ah, that would be telling. Here’s the thing. Big conversations on that subject have been happening for the last four years. And I’m a lawyer so it’s confidential. It has to be. I’m there to advise and assist not to preempt. ‘How? and when?’, that decision is not mine. That decision is down to the states that will take this forward. I can say though that it’s a matter of ‘when’ not ‘if’.
So when that moment happens, it goes to a vote?
So unlike in big climate negotiations — which everyone looks to as the norm — because it’s so big, it’s so loud, where you have to have consensus voting. It’s not that way with the Rome Statute. At the climate negotiations you can bring as many delegates as you like and they all have a vote in order to reach consensus. That creates huge injustice. USA has over two thousand delegates whereas some of these small island states have one delegate representing five states. There can be 34 working group meetings running in tandem. Which one do you go to? It’s just not possible. Where as in the Assembly of State Parties for the International Criminal Court it’s one vote per member state. Far more democratic. And once you get to an approved text, it’s just an accrual of signatures so it’s not a ‘do or die’ voting moment. So it’s very much more doable. Ironically it’s very much fast track once the ball starts rolling. For the Crimes of Aggression law it took only two years to put in place. What you are dealing with here is justice whereas at the climate negotiations you are dealing with trade and commerce and vested interests. It does not protect those that are most adversely affected by climate change.
When that accrual of votes happens do you see wealthy Northern Hemisphere signatories coming forward? Like the UK for example?
I have very little faith that the UK will support this. UK has a huge record in never supporting international crime legislation and indeed has gone in to try and scupper that at every stage. The good news is they have never managed it yet. We do have international crimes despite the fact that Britain and the US didn’t want it. But politics do change and actually we don’t require Britain to come on board with this anyway. The US doesn’t even have standing in it because they are not a signatory so they can’t even sit at the table.
There’s a spectrum of those really caring about justice and those that are there to scupper it but the majority are signatories because they want to see justice upheld. We’re looking at getting a two thirds majority vote. Some of the Scandinavian countries are much more progressive with regard to this. But remember this when it’s open to vote, it remains open, so that allows public pressure to come on board. We haven’t signed up, why not? It’s a kind of Avaaz moment. And look what pressure Avaaz has brought to bear.
We’re educated by mainstream media that everything is on a ‘go slow’. Nonsense! Every country in the world can pass emergency legislation overnight and indeed does. Wall Street was shored up with emergency legislation, we did it for terrorists, albeit not necessarily for the best. But law is a tool. You can use it for greater life force, the great force if you like, or it can be used as a weapon to dominate, as happens regularly to earth protectors, those on the front line.
Could you explain a little about your work to legally support conscientious earth protectors?
This has never been done before. We have created a document which has been legalised in nearly every jurisdiction in the world. Those that have signed up to the Mission Lifeforce Earth Protectors Trust Fund can take that into a court of law and say “I am signed up as an earth protector in law” and the court has to give due regard to that document. And what that does is that it opens up the door for you to explain why you are standing on point of conscience to protect your community against that Ecocide. They can then present to the court as to the reasons they should not be treated as the criminals.
So you need to set a precedent for this to come into use in law?
Exactly right. This needs to be argued and tested in court. And like the conscientious objectors of the last century, they kept on going, and many of them were locked up, until it was recognised that it was lawful to stand up as a conscientious objector. And now in this century it’s not just about objecting in war time, it’s about objecting in peacetime. And going one step further and protecting where the state is failing to do that. So we are now training up activists so they can represent themselves in court. It will take time, we know this. But the more this is taken in to the public domain, because a courtroom is a public domain, the more then we are raising awareness of the truth of the scenario. It is a human right, the right to freedom on conscience, under article 18 of the Universal Declaration of Human Rights. If we are in front of judges that have a conscience, they will begin to recognise the lifeforce of this legal argument.
Speaking of lifeforce, we’ve noticed that the Mission Lifeforce logo is based on the Rebel Alliance logo from Star Wars. Has anyone been in touch with you about it?
They have! We have a mole inside… He’s one of the actors. And he said “Polly, just do it! This is the Rebel Alliance, we’re with you girl!” And actually it’s very in keeping. I’m hugely inspired by Star Wars. I’m a major fan. The whole Jedi principles and ethos of life, it’s very aligned. The whole narrative of the hero’s journey. Good triumphing over evil. The huge challenges that we meet. This is the stuff of life. Actually, it’s a direct mirror of what’s happening at the moment. The rebels are the ones that are fundamentally unreasonable. ‘Right, I’m with you.’ We’re going to fly that junk and just get going no matter what. No idea how we’re going to do it. No idea how to get in there and solve the problem but we’re going to do it no matter what it takes. The whole energy around that is really audacious!
Do you see permaculture practitioners as part of the Rebel Alliance?
Absolutely! You know, permies are really fundamentally unreasonable people. That’s the bottom line. They refuse to eat food that’s been chemically polluted. They refuse to be complicit in the whole corporatisation of our way of life. And they get out there, grow their own stuff, lovingly, with care. There’s a whole philosophy of life going on there. And that’s the thing. Fundamentally unreasonable people are the people who change the world. Not the ones who are reasonable, who say “be reasonable, this is how it is, you’ve got to eat your food sprayed with chemicals” No, it’s the ones who say “no, no, no, no, I refuse to accept that! I’m off on another mission and I’m going to make a better world. And that to me is really, really exciting. Because they are the changemakers.”