07 April 21
People Will Ignore Fundraising Today Unless We Fight
It’s a terrific day for readership, but that won’t mater. If we do not make a determined stand for the basic funding RSN needs to do all of this — We Will Not Get It, period. Unfair, but very real.
We will fight. It’s what we do.
Marc Ash
Founder, Reader Supported News
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07 April 21
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Charles Pierce | A New Study Draws a Line From January 6 to Charlottesville
Charles Pierce, Esquire
Pierce writes: "Jackpot. If you ever wonder why the Republican party can't cut loose of the crazy, refer to the results of this study."
obert Pape is a political scientist at the University of Chicago who specializes in the study of various security threats. In Tuesday’s Washington Post, he published a column based on research that he and his team had done into the lives of 377 people who were arrested in connection with the insurrection of January 6. You very likely will not be flattened by the news that Economic Insecurity does not hold a prominent place in the data. Neither will you be stunned by what form of insecurity actually does.
The Chicago Project on Security and Threats (CPOST), working with court records, has analyzed the demographics and home county characteristics of the 377 Americans, from 250 counties in 44 states, arrested or charged in the Capitol attack. Those involved are, by and large, older and more professional than right-wing protesters we have surveyed in the past. They typically have no ties to existing right-wing groups. But like earlier protesters, they are 95 percent White and 85 percent male, and many live near and among Biden supporters in blue and purple counties…
…Nor were these insurrectionists typically from deep-red counties. Some 52 percent are from blue counties that Biden comfortably won. But by far the most interesting characteristic common to the insurrectionists’ backgrounds has to do with changes in their local demographics: Counties with the most significant declines in the non-Hispanic White population are the most likely to produce insurrectionists who now face charges.
Jackpot.
If you ever wonder why the Republican party can’t cut loose of the crazy, refer to the results of this study. First, the crazy cuts across all economic and social demographics. And second, if we take these results as a measure of The Base, then The Base is a helluva lot bigger than to 34 million people who voted for the former president* last November. Like Joyce’s snow in Ireland, crazy is general all over the party. It is a legitimate movement. And its fundamental engine is old-fashioned racial terror.
CPOST also conducted two independent surveys in February and March, including a National Opinion Research Council survey, to help understand the roots of this rage. One driver overwhelmingly stood out: fear of the “Great Replacement.” Great Replacement theory has achieved iconic status with white nationalists and holds that minorities are progressively replacing White populations due to mass immigration policies and low birthrates. Extensive social media exposure is the second-biggest driver of this view, our surveys found. Replacement theory might help explain why such a high percentage of the rioters hail from counties with fast-rising, non-White populations.
It is telling that the white-supremacists who rioted in Charlottesville chanted, “You will not replace us” as they marched through the streets. That should have been enough to tell us that the threat to rational self-government in this country is deep and entrenched, and it will not go away when and if the economy turns around. It has nothing to do with money. It has to do with the disappearance of phantom entitlements on which this society depended for too long. Either we get a handle on this or we can lose it all. This study should be the seedbed for a serious intellectual investigation of the wild kingdom.
Rep. Karen Bass. (photo: Getty)
10 Democrats Join NAACP Lawsuit Against Trump
Marty Johnson, The Hill
Johnson writes:
en Democratic members of Congress have joined the NAACP’s lawsuit against former President Trump, alleging he incited a mob to attack the Capitol on Jan. 6.
The group of lawmakers joining the case includes House Judiciary Committee Chairman Jerry Nadler (N.Y.), a House prosecutor in Trump’s first impeachment trial, as well as progressive Rep. Pramila Jayapal (Wash.) and three former chairs of the Congressional Black Caucus, California Reps. Barbara Lee, Karen Bass and Maxine Waters.
Trump on Jan. 6 “trampled our democracy, inciting a violent mob of white supremacists to overturn a free and fair election,” Lee said in a statement.
Nadler added: “This violence was anything but spontaneous; it was the direct result of a conspiracy to incite a riot, instigated by President Trump, Rudolph Giuliani, the Proud Boys and the Oath Keepers.”
Giuliani, the former mayor of New York and Trump’s close ally, and both far-right groups are also listed in the complaint as being culpable for the Capitol violence. Both the Oath Keepers and Proud Boys face accusations of white supremacy and domestic terrorism.
The House Democrats joined their colleague Rep. Bennie Thompson (D-Miss.), who was part of the lawsuit when it was first filed.
The revised complaint was filed in the Federal District Court in Washington, D.C., by the NAACP and law firm Cohen Milstein Sellers & Toll.
Jan. 6 “was the climax of a meticulously organized coup incited by Donald Trump that placed members of congress and the integrity of our democracy in peril,” NAACP president Derrick Johnson said in a statement.
In an interview with The Hill when the suit was first announced, Johnson described Trump’s actions as “treasonous.”
“For African Americans, we see a long history of people not being held accountable ... and if we don't hold people accountable, there becomes this entitlement that it's OK to cause harm and violate the law," Johnson said at the time.
The lawsuit states that Trump violated federal statutes tied to what is commonly referred to as the Ku Klux Klan Act.
Passed in 1871 during Reconstruction, the bill was the third law in a series of measures created by Congress to slow the violence against and intimidation of Black Americans at the hands of the white hate group following the Civil War.
While much of the law has since become obsolete, several parts have become codified as a statute, including 42 U.S.C. 1985(1) — the provision listed in the lawsuit.
The provision specifically safeguards against conspiracies meant “to prevent, by force, intimidation, or threat, any person from accepting or holding any office.”
White extremist and hate group activity spiked during the Trump presidency, a concerning trend that the NAACP and other civil rights organizations have consistently warned against.
The Southern Poverty Law Center, which does extensive research and tracking of extremist hate groups, saw “historically high hate group numbers” in the first three years of Trump's presidency.
“Trump, of course, acts as a partial explanation,” the civil rights group recently noted in its annual “Year in Hate and Extremism” report.
Marsy's Law amendment was intended to protect victims of crime, but it's being used to shield law enforcement. (photo: Shutterstock)
Police Who Shoot Civilians Can Hide Their Names Under Victims' Rights Law, Court Rules
Jeff Burlew, Tallahassee Democrat
Burlew writes: "In a decision that could have sweeping implications in police use-of-force cases, a Florida appellate court has ruled that officers who kill citizens can hide their identity under a measure designed to protect crime victims from violence and harassment."
A three-judge panel of the 1st District Court of Appeal on Tuesday unanimously reversed a lower court decision that had denied on-duty officers protections under Marsy's Law, a provision that has been adopted in at least 12 states, including Florida.
In October, a USA TODAY/ProPublica investigation showed that as police across the nation faced scrutiny over over brutality and systemic racism, law enforcement agencies – particularly in Florida – increasingly were co-opting Marsy's Law to shield the identifies of officers accused of violence.
Florida agencies have used it to hide the names of officers who sent a 15-year-old boy to the hospital, officers who fired bullets into moving cars and officers who released their K9 dogs on drunk and mentally ill people, the news organizations found.
Marsy’s Law passed first in California in 2008. In November, voters approved the measure in Kentucky, a state still reeling from the botched raid that killed Breonna Taylor, a 26-year-old Black medical worker in Louisville. Had it been in place in March 2020, the public may not have learned the identities of the three white officers who opened fire.
Marsy's Law got on Florida’s ballot in 2018 after being introduced as a constitutional amendment by a sheriff and revised with the help of two statewide law enforcement associations. USA TODAY and ProPublica collected information from dozens of Florida police agencies and reviewed thousands of pages of police reports to determine that at least half of Florida's 30 largest police agencies applied the law to on-duty officers.
The agencies claimed officers were crime victims and hid their names when the officers said someone physically resisted arrest or attacked them, leading the officer to use force against them. The agencies rarely redacted the names of the suspects on whom they used force, including juveniles and mentally ill people in the thick of a crisis.
Officers sustained no injuries in at least half of the incidents for which they claimed victims’ rights, records show. Even minor movements that officers perceived as threatening, such as walking aggressively or reaching into a pocket, qualified as batteries on officers – triggering the law’s protection, according to the agencies.
In July 2020, Leon Circuit Judge Charles Dodson ruled that on-duty officers are not afforded protection under Marsy's Law. The ruling sprang from the explosive case of Tony McDade, a Black transgender man who was shot and killed last May 27 by an officer with the Tallahassee Police Department. McDade was killed moments after fatally stabbing the son of a next-door neighbor.
Tuesday's decision was a legal defeat for the city, which planned to publicly identify the officer who killed McDade, and the Tallahassee Democrat and other news organizations that intervened to force release of the officer’s name.
“Today’s decision was an unfortunate setback for police accountability," said Mark Caramanica, a Tampa lawyer representing news organizations. "We respectfully disagree with the court’s reasoning and are considering our options.”
Previously: Judge rules Marsy's Law does not apply to police officers on duty in Tony McDade case
Special report: Marsy’s Law was meant to protect crime victims. It now hides the identities of cops who use force.
After McDade’s death, the Florida Police Benevolent Association sued the city of Tallahassee to block release of the officer's name, along with the name of another officer involved in a separate case.
The police union argued that the officers were themselves victims of aggravated assaults by the armed suspects they killed and thus qualified for anonymity under Marsy’s Law. The appellate court agreed in its 13-page ruling.
“We reverse the trial court’s order directing the city to disclose public records that would reveal the identities of the two officers,” said the opinion by Judges Robert Long, Timothy Osterhaus and Lori Rowe.
“And we reverse the trial court’s judgment declaring that protections afforded crime victims under (Marsy’s Law) are not available to law enforcement officers.”
City undecided on whether to appeal
City Attorney Cassandra Jackson said the city respects the appellate court's deliberations and decision.
"The court has determined that police officers, while acting within the scope of their public duties, are afforded the protections of Marsy's Law as crime victims," she wrote. "The city will carefully review the courts decision in evaluating whether to appeal."
Mutaqee Akbar, a lawyer representing McDade's family, said the decision runs contrary to his own position. He encouraged citizens to work with lawmakers to change Marsy's Law so that police are carved out from its protections.
"Transparency is so important," he said. "I believe the PBA is hiding behind Marsy's Law in order to not be transparent."
Stephen Webster, attorney for the PBA, praised the decision, saying police shouldn't be excluded from Marsy's Law "simply because they choose to patrol our streets and keep us safe."
"Both of these officers were threatened with deadly force," he said, "and they had to make the horrible decision to use deadly force in defense of themselves."
'Transparency is everything'
Dodson, who retired from the bench in January, wrote in his July ruling that police have a "very difficult and important job" but are not beyond public scrutiny of their on-duty actions. He ordered the city to release the officers' names but stayed his own decision in anticipation of the PBA appeal.
"The public has a vital right to evaluate the conduct of our law enforcement officers, who are empowered to arrest people and use deadly force," Dodson wrote. "For this court to hold that on-duty law enforcement officers may use Marsy's Law to prevent the disclosure of their names would provide them with a protection not intended by the express purpose of that law."
The appellate panel wrote that its reading of Marsy's Law does not mean that the public can't hold law enforcement accountable. The judges noted that officers who are criminally charged for their conduct would forfeit their Marsy's Law rights.
"Maintaining confidential information about a law enforcement officer who is a crime victim would not halt an internal affairs investigation nor impede any grand jury proceedings," they wrote. "Nor would it prevent a state attorney from reviewing the facts and considering whether the officer was a victim."
Pamela Marsh, executive director of the First Amendment Foundation in Tallahassee, expressed disappointment in the decision, noting in a news release that other states are mandating disclosure of records on police shootings and excessive force.
"But Florida is moving in the opposite direction," she said. "This ruling can only undermine the public's belief that law enforcement will ever be held accountable for serious misconduct. Transparency is everything when it comes to trust."
Nearly a third of adults in the U.S. have gotten at least one shot of the COVID-19 vaccine so far, but researchers warn that vaccine refusal may keep the country from reaching herd immunity. (photo: John Tlumacki/Getty)
Vaccine Refusal May Put Herd Immunity at Risk, Researchers Warn
Geoff Brumfiel, NPR
Brumfiel writes: "Joyce Ann Kraner is eager for the pandemic to end and for life to get back to normal. Kraner, 49, wants to be able to hug her mother, who lives in a nursing home."
READ MORE
Elijah Baay, a trans person, speaks at the #LoveALTransYouth Press Conference on 30 March in Montgomery, Alabama. (photo: Andrea Mabry/AP)
Arkansas Is First State to Ban Gender-Affirming Treatments for Trans Youth
Guardian UK
Excerpt: "Arkansas has become the first state to ban gender-affirming treatments and surgery for transgender youth, after lawmakers overrode the governor's objections to enact the ban on Tuesday."
Lawmakers overrode the governor’s veto despite criticism that the measure would harm an already vulnerable community
The state’s governor, Asa Hutchinson, had vetoed the bill on Monday following pleas from pediatricians, social workers and the parents of trans youth who said the measure would harm a community already at risk for depression and suicide. The ban was opposed by several medical and child welfare groups, including the American Academy of Pediatrics.
However the Republican-controlled house and senate voted to override Hutchinson’s veto.
The ban prohibits doctors from providing gender-affirming hormone treatment, puberty blockers or surgery to anyone under 18 years old, or from referring them to other providers for the treatment. The treatments are part of a gradual process that can vastly improve young people’s mental health, and can be life-saving, experts say.
Opponents of the measure have vowed to sue to block the ban before it takes effect this summer.
“This legislation perpetuates the very things we know are harmful to trans youth,” said Dr Robert Garofalo, the division head of adolescent and young adult medicine at Lurie Children’s hospital in Chicago, speaking on a press conference call held by the Human Rights Campaign. “They’re not just anti-trans. They’re anti-science. They’re anti-public health.”
The bill’s sponsor dismissed opposition from medical groups and compared the restriction to other limits the state places on minors, such as prohibiting them from drinking.
“They need to get to be 18 before they make those decisions,” said the Republican representative Robin Lundstrum.
Hutchinson said the measure went too far in interfering with parents and physicians, and noted that it will cut off care for trans youth already receiving treatment. He said he would have signed the bill if it had focused only on gender-affirming surgery, which currently isn’t performed on minors in the state.
“I do hope my veto will cause my Republican colleagues across the country to resist the temptation to put the state in the middle of every decision made by parents and healthcare professionals,“ Hutchinson said in a statement after the vote.
The law will take effect in late July at the earliest. The American Civil Liberties Union said it planned to challenge the measure before then.
“This is a sad day for Arkansas, but this fight is not over – and we’re in it for the long haul,” said Holly Dickson, the ACLU of Arkansas’ executive director, in a statement.
The ban was enacted during a year in which bills targeting trans people have advanced easily in Arkansas and other states. Hutchinson recently signed legislation banning trans women and girls from competing on teams consistent with their gender identity, a prohibition that also has been enacted in Tennessee and Mississippi this year.
Hutchinson also recently signed legislation that allows doctors to refuse to treat someone because of moral or religious objections.
And the legislature isn’t showing signs of letting up. Another bill advanced by a house committee earlier Tuesday would prevent schools from requiring teachers to refer to students by their preferred pronouns or titles.
The Human Rights Campaign, the largest US LGBTQ rights group, said more than 100 bills have been filed in statehouses around the country targeting the trans community. Similar treatment bans have been proposed in at least 20 states.
Clarke Tucker, a Democratic lawmaker who opposed the measure, compared it to the anti-integration bills Arkansas’ legislature passed in 1958 in opposition to the previous year’s desegregation of Little Rock Central high school.
“What I see, this bill, is the most powerful again bullying the most vulnerable people in our state.”
Iman Saleh has been on a hunger strike to demand an end to the War in Yemen since March 29. (photo: Laura Albast/Yemeni Liberation Movement)
Yemeni American Activists Are Launching a Hunger Strike to Demand an End to Yemen's 6-Year Civil War: 'They're No Longer on the Brink of It, They Are in Famine.'
Sarah Al-Arshani, Yahoo! News
Al-Arshani writes:
man Saleh is on her ninth day of a hunger strike to demand the end of a US-backed Saudi fuel blockade and a six-year war that has caused millions of people to suffer.
Saleh, 26, is one of six Yemeni-American activists, part of the grassroots Yemeni Liberation Movement, who have gone on a hunger strike in Washington, DC, and Michigan. She said the effort comes after years of protests and calling and sending letters to representatives about concerns over the ongoing humanitarian crisis in Yemen, which she said have "fallen on deaf ears."
"Things just weren't happening fast enough. The rate of news that we were receiving in Yemen. The catastrophe, the suffering was coming in a lot faster than change was happening," Saleh told Insider. "We were getting really frustrated and I mean at some point writing a letter just doesn't feel enough anymore. So we knew that we had the capability and the health, thankfully to take more radical steps towards pushing for this."
What's happening in Yemen is both a civil and proxy war: In March 2015, Saudi Arabia launched an offensive against the rebel Houthi movement, which tried to overthrew the legitimate Yemeni government in 2014. Saudi Arabia has used the fact that the Houthis are backed by Iran as justification for their involvement.
The crisis has had a profound humanitarian toll, with at least 16 million people living in either "crisis" or "emergency" food security conditions, analysis by the Integrated Food Security Phase Classification (IPC), a global authority on food security found.
A country on the brink
In a plan to address the crisis, David Gressly, the United Nations Humanitarian Coordinator for Yemen, said the situation in the country is now the world's worst humanitarian crisis and is "hurtling towards the worst famine the world has seen in decades."
However, Saleh says the country isn't on the brink of famine, it's already in the thick of it.
"They are in famine, they are dying from it. children are dying from it," she said.
The IPC found around 47,000 Yemenis could be living with "catastrophic" levels of food insecurity or famine conditions by the end of June of this year and at least 16,500 were already in famine by the end of 2020.
Earlier this month, the World Food Programme said around 400,000 children could die in Yemen by the end of this year without urgent intervention. Roughly one child dies every 75 seconds.
The country is also dealing with decaying and limited healthcare infrastructure and a re-emergence of communicable diseases like cholera, diphtheria, and dengue fever.
Ending the blockade
Saleh and her group are especially demanding an end to a blockade that has prevented fuel from entering the country. CNN reported Saudi warships were preventing all oil tankers from docking at the Hodeidah port in the north, which is controlled by the Houthis. The blockage included 14 vessels docked off the Saudi port of Jazan in the Red Sea and had received clearance from the United Nations, but were unable to dock for months.
Late last month, one ship carrying fuel that was supposed to unload on November 5 was allowed to carry out its duty after the government said it would allow four to do so, but it's not clear if it's a temporary or permanent move.
The Saudi-backed government has enforced a sea and air blockade around the north of Yemen, where 80% of the population has lived since 2015. Aid has been able to enter the country through the ports but fuel hasn't.
The fuel blockade has contributed to the lack of food and medicine for those in need, as trucks filled with necessary supplies like food and medicine remained stalled near the port, unable to move due to low fuel supplies, CNN reported.
Fuel is also needed to power hospitals and other basic infrastructure in the country; without it not much is able to properly operate. CNN added that with the blockade and shortages, Yemenis can be seen waiting in long lines to purchase whatever they can at inflated prices in an already shattered economy.
The toll of hunger
Saleh explained her own hunger strike has made her more emotional and helps her appreciate the suffering Yemenis are going through.
"It's really hard," Saleh said while tearing up on a call with Insider. "I can't imagine seeing your loved ones go through this."
The hunger strike has taken a toll on her physical and mental health. Saleh said her heart is constantly racing even if she's laying down, her brain is always foggy and her joints ache.
"My mental health has really gone downhill. I've been thinking about suicide a lot. My mind kind of sits in a dark corner most of the time. I'm not tooting my own horn here or making myself out to be like some selfless, compassionate person but I never usually think about my own suffering," she told Insider. "I always apply the pain of what it's like to see someone else go through this. Most people here in America, much less people in DC, could never go six days without eating and here they are walking past us and ignoring our calls to push for a better change."
Saleh said while she's able to stop and find something to eat at any time, Yemenis can not. She added that the lack of food makes the body more susceptible to diseases it could normally fight off, which has her wondering about the health of those in Yemen as they deal with both cholera and the coronavirus pandemic, among other illnesses.
What the US can do to help
President Joe Biden has said he wants to end the war in Yemen and in February ended US support for offensive operations, but Saleh says it's not enough and she's not confident the administration would end defensive support out of good faith. She said this administration's statements have been vague and the group said the war won't be over until it's "materially over."
"We believe through radical change and through the support of the masses that we can actually put pressure on the Biden administration to eventually make that change," Saleh said.
Saleh said while tragic stories from the Middle East are coming out every day, she wants people to know the suffering people are going through in Yemen and beyond is not normal.
"The world has just kind of been desensitized to these issues so when they happen, no matter to what extent, people just kind of feel hopeless or they just feel fatigued ... and they just feel like this is so normal, but this is anything but normal," Saleh said.
"It's not normal for people to live like this."
As rainforests burn and ice sheets melt, criminalizing ecocide could serve as a deterrent for companies and governments that harm the environment, advocates say. (photo: Chelsea Stahl/Getty)
'Ecocide' Movement Pushes for a New International Crime: Environmental Destruction
Nicholas Kusnetz and Katie Surma, Inside Climate News and Yuliya Talmazan, NBC News
Excerpt: "In 1948, after Nazi Germany exterminated millions of Jews and other minorities during World War II, the United Nations adopted a convention establishing a new crime so heinous it demanded collective action."
A growing number of world leaders advocate making ecocide a crime before the International Criminal Court, to serve as a “moral line” for the planet.
n 1948, after Nazi Germany exterminated millions of Jews and other minorities during World War II, the United Nations adopted a convention establishing a new crime so heinous it demanded collective action. Genocide, the nations declared, was “condemned by the civilized world” and justified intervention in the affairs of sovereign states.
Now, a small but growing number of world leaders including Pope Francis and French President Emmanuel Macron have begun citing an offense they say poses a similar threat to humanity and remains beyond the reach of international criminal law: ecocide, or widespread destruction of the environment.
The pope describes ecocide as “the massive contamination of air, land and water,” or “any action capable of producing an ecological disaster,” and has proposed making it a sin for Roman Catholics.
The Pontiff has also endorsed a campaign by environmental activists and legal scholars to make ecocide the fifth crime before the International Criminal Court in The Hague as a legal deterrent to the kinds of far-reaching environmental damage that are driving mass extinction, ecological collapse and climate change. The monumental step, which faces a long road of global debate, would mean political leaders and corporate executives could face charges and imprisonment for "ecocidal" acts.
To make their case, advocates point to the Amazon, where fires raged out of control in 2019, and where the rainforest may now be so degraded it is spewing more climate-warming gases than it draws in. At the poles, human activity is thawing a frozen Arctic and destabilizing the ice sheets of Greenland and Antarctica.
Across the globe, climate change is disrupting the reliable seasonal rhythms that have sustained human life for millennia, while hurricanes, floods and other climate-driven disasters have forced more than 10 million people from their homes in the last six months. Fossil fuel pollution has killed 9 million people annually in recent years, according to a study in Environmental Research, more than tuberculosis, malaria and AIDS combined.
One in 4 mammals are threatened with extinction. For amphibians, it’s 4 in 10.
Damage to nature has become so extensive and widespread around the world that many environmentalists speak of ecocide to describe numerous environmentally devastated hot spots:
- Chernobyl, the Ukrainian nuclear plant that exploded in 1986 and left the now-deserted area dangerously radioactive;
- The tar sands of northern Canada, where toxic waste pits and strip mines have replaced 400 square miles of boreal forest and boglands;
- The Gulf of Mexico, site of the Deepwater Horizon disaster that killed 11 people, spilled at least 168 million gallons of crude oil into the ocean over 87 days and killed countless marine mammals, sea turtles, fish and migratory birds;
- The Amazon, where rapid deforestation encouraged by Brazilian President Jair Bolsonaro prompted Joe Biden, during his presidential campaign, to propose a $20 billion rescue plan and threaten the Brazilian leader with economic sanctions.
The campaign to criminalize ecocide is now moving from the fringe of advocacy into global diplomacy, pushed by a growing recognition among advocates and many political leaders that climate change and environmental causes are tied inherently to human rights and social justice.
The effort remains a long shot and is at least years from fruition, international and environmental law experts say. Advocates will have to navigate political tensions over whether national governments or the international community have ultimate control over natural resources. And they’ll likely face opposition from countries with high carbon emissions and deep ties to industrial development.
The environmentalists must also figure out how criminal law would address climate change, which has been driven by practices like burning coal and gasoline that are not only legal, but central to the global economy.
The campaign to make ecocide a crime, however, is about more than law. Jojo Mehta, who launched the Stop Ecocide campaign in 2017 with Polly Higgins, a Scottish lawyer who died in 2019, describes it as a moral and practical issue as well.
“We use criminal law to draw moral lines,” Mehta said. “We say something’s not accepted, your murder is not acceptable. And so, simply putting mass damage and destruction of nature below that red line actually makes a huge difference, and it will make a difference to the people that are financing what is going on.”
Scott W. Badenoch Jr., an American environmental lawyer who favors the criminalization of ecocide, used the term to describe the state, and fate, of the Earth.
“Ecocide is now endemic all over the planet,” he said. “The structures of ecology that have held up living organisms on Earth, since time immemorial, are collapsing everywhere.” He added, “Ecocide is now, frankly, the process that we are living in on Earth.”
The concept of ecocide was born of tragedy. Over a period of 10 years, the United States government sprayed 19 million gallons of powerful herbicides, including Agent Orange, across the countryside in Vietnam, Cambodia and Laos to expose enemy sanctuaries during the Vietnam War.
The dioxin-laced chemicals defoliated verdant jungle and caused cancers, neurological disease and birth defects in people living nearby. While the number of victims is disputed, Vietnamese groups claim there are more than 3 million. In 1970, Yale biologist Arthur Galston invoked the destruction to call on the world to outlaw what he called “ecocide.”
More than 20 years later, the global community came together to form the International Criminal Court, which was formally established in 2002 under a treaty called the Rome Statute to prosecute genocide, crimes against humanity, crimes of aggression and war crimes when its member countries, which currently number 123, fail to do so themselves.
Early drafts of the Rome Statute included the crime of environmental destruction, but it was removed after opposition from the United States, the United Kingdom and the Netherlands, based on various concerns, including that it wasn’t precisely defined. Instead, it was relegated to a wartime offense that has never been enforced.
As a result, international criminal law includes few guardrails to prevent peacetime environmental destruction.
“There's a big gap and something needs to fill it,” said Badenoch, a visiting attorney at the Environmental Law Institute.
“We currently cannot hold big corporations or big governments accountable for ecocide,” Badenoch added. “So, what do you do? We name and shame — that's all we've got.”
Decades of oil extraction in Nigeria by subsidiaries of Royal Dutch Shell, for example, have contaminated the air, ground and water in parts of the country with benzene and other toxic pollutants, according to the United Nations Environment Program. Civil lawsuits have taken years to wind through European courts, and no laws were strong enough to prevent the damage from happening, though Shell’s Nigerian subsidiary was recently ordered by a Dutch court to compensate Nigerian farmers.
Curtis Smith, a Shell spokesman, pointed to a corporate report that says many of the spills have come as a result of sabotage and theft, and that the company has been working with stakeholders to clean up the pollution identified by the U.N. Environment Program.
The International Criminal Court's supranational authority would make an ecocide crime particularly powerful, said Kate Mackintosh, executive director of the Promise Institute for Human Rights at the University of California Los Angeles.
An ecocide crime would require International Criminal Court members to enact their own national ecocide laws, and failure to enforce those laws would enable the international court to step in. While political leaders and warlords have been the usual targets of the court, an ecocide crime could place business executives on notice, too.
“That could make a difference in corporate boardroom conversations,” Mackintosh said. Even the threat of being labeled an international criminal, she said, might deter destructive corporate behavior. “I mean, for PR, it doesn’t look good, does it?”
Mackintosh said making ecocide a crime could help in weak states, where corporate polluters are sometimes more powerful than national governments. “The likelihood of any criminal prosecution taking place in that state is pretty low,” she said. “But with an international crime, that’s actually not a bar.”
China, the United States, India and Russia — four of the world’s top polluters — are not members of the International Criminal Court, but if a corporation based in one of those countries were to operate within a member state, as many of them do, their executives could fall under the court’s jurisdiction.
The push to criminalize ecocide remained on the periphery until December 2019, when Vanuatu and the Maldives, two island nations threatened by rising seas and climate change-driven extreme weather, recommended that the court consider amending its statute to “criminalize acts that amount to ecocide.”
“Our legacy and our future are at stake,” Vanuatu’s ambassador to the European Union, John Licht, told the court, stressing a “common bond” that united all the world’s people. “Our lives are intertwined by the environment we live in.”
Willy Missack, who has served as part of Vanuatu’s delegation to the United Nations climate negotiations, said diplomats from other countries expressed shock when “little tiny Vanuatu” — a remote archipelago of more than 80 islands in the South Pacific — said it wanted to take on global powers and the fossil fuel industry through the courts. But the fact that corporations can continue to profit from carbon emissions that are threatening his country’s future, Missack said, makes the legal case clear.
“It is not right,” he said, “and this is where justice comes in.”
After Vanuatu asked the International Criminal Court to consider criminalizing ecocide, Mehta’s Stop Ecocide Foundation independently convened a panel of international legal experts, including Mackintosh of UCLA, to draft a clear definition of ecocide. They plan to publish their definition in June, at which point they hope at least one of the court’s member nations will formally propose that the court adopt ecocide as the fifth international crime against peace. Mehta has said the definition would likely require “willful disregard” of environmental destruction related to practices like widespread logging, drilling, mining and deep-sea trawling.
Richard J. Rogers, a British expert in international criminal law who is a partner at Global Diligence and a member of the drafting panel, said it may be relatively straightforward to criminalize certain acts, like destruction of a forest or waterway.
But climate change poses a greater challenge: Not only is it difficult to connect polluters to specific harms, he said, but there’s also nothing illegal about extracting or burning fossil fuels.
“The situation we're dealing with is that the carbon system, which has fueled our economies since the Industrial Revolution, has not only been lawful, but it's been encouraged,” Rogers said.
Another point that the drafters will have to grapple with is whether the crime of ecocide should require prosecutors to prove that humans have been harmed. Mackintosh said that while this “human harm” threshold could prove appealing politically — the court's existing crimes all largely involve harm to humans — focusing ecocide only on the environment could make it easier for prosecutors to prove, especially when it comes to harms related to climate change, which are often incremental and indirect.
If a nation agrees to introduce the ecocide proposal to the International Criminal Court for consideration, that is when even harder work will begin. Ratification is a multistep process that would require support from either two-thirds or seven-eighths of the court’s members, depending on the type of amendment introduced. (Vanuatu still supports the campaign, but Covid-19 and the country’s “limited resources for international diplomacy” have put its ecocide advocacy on hold, said Dreli Solomon, a spokesman for Vanuatu’s embassy in Brussels.)
While no country has committed to formally proposing that the court adopt ecocide, the campaign is gaining traction, fueled by the youth-led climate movement and radical new groups like Extinction Rebellion.
In December, Belgian Foreign Minister Sophie Wilmès asked International Criminal Court member states to examine the possibility of adopting ecocide as a crime. A member of Belgium’s Parliament has also proposed a bill to criminalize ecocide. And French lawmakers are working on legislation to make ecocide an offense punishable by fines and prison, though Stop Ecocide criticized the bill as “weak.”
At least 10 countries have national ecocide laws already, including Vietnam, which enacted the law in 1990.
Separately, French lawyers in January filed a request on behalf of Amazonian indigenous groups asking the International Criminal Court to investigate Bolsonaro of Brazil for crimes against humanity.
The appeal alleges that deforestation encouraged by Bolsonaro’s government and other policies have forced indigenous people from their homes and even led to murders in the region.
While the request relies on citations of crimes the court already addresses, the lawyers who submitted it have said the case is also an example of ecocide.
The Brazilian Embassy in Washington said in a statement that "the Bolsonaro administration is taking concrete action to improve the lives of Indigenous peoples and ensure the future of the Amazon."
The embassy said that over 70 percent of the eligible Indigenous population has received initial Covid-19 vaccinations and that deforestation rates in the Amazon were 21 percent lower from August to January , compared to the same period a year earlier.
Badenoch said that while the hurdles to adopting a new international crime are high, they are not insurmountable.
“These things take a long time and they are complex,” he said. “But they can be done.”
While the campaign for an ecocide law could take years — if it is successful at all — advocates say the effort could bear fruit much sooner: The ecocide campaign has thrust the concept into public discussion.
Mehta doesn’t expect the campaign to catch fire in the United States, but after four years of President Donald Trump, she’s heartened by the arrival of John Kerry, Biden’s special climate envoy. “We don’t expect the U.S. to join the ICC any time soon, but that said, the conversation around ecocide itself, we don’t see any reason why it can’t start happening in the U.S.,” she said.
The State Department released a statement saying that the U.S. “regularly engages with other countries” on “the importance of preventing environmental destruction during armed conflict,” but added, “We do not comment on the details of our communications with foreign governments.”
Mehta’s campaign is also part of a wider effort by activists who have been looking to the courts to force more aggressive action on climate change.
As of July 1, 2020, at least 1,550 climate change cases have been filed in 38 countries, according to a U.N. report.
In 2015, a Dutch court ruled in the Urgenda Climate Case that the government had acted negligently by failing to take aggressive enough action to limit its greenhouse gas emissions. The Supreme Court of the Netherlands upheld the ruling in a landmark decision in 2019 and ordered the government to hit specific emissions reductions targets, sparking a series of similar lawsuits in other countries.
In one of those lawsuits, a Paris administrative court held the French government responsible for failing to meet its goals to reduce greenhouse gas emissions. The ruling relied, in part, on France’s nonbinding commitments under the Paris Climate Agreement, taking what had been the soft pledge of politics and turning it into a legally binding commitment.
Mehta has framed an ecocide law as a counterweight to the failings of the Paris Agreement, saying in a recent column she co-wrote in The Guardian that it offers “a way to correct the shortcomings” of the global climate pact. “Whereas Paris lacks sufficient ambition, transparency and accountability, the criminalization of ecocide would be an enforceable deterrent.”
Alex Whiting, a professor at Harvard Law School and former coordinator of prosecutions at the International Criminal Court, said that making ecocide a crime before the court would have tremendous impact, even if only a few cases were actually prosecuted.
“When a crime becomes an international crime, it has a ripple effect,” he said. “The environment is the issue of our time. Being able to do something about that seems important.”
In Vanuatu, though, there is a sense that the pace of climate change is beginning to outrun the country’s ability to adapt. Cyclones that have devastated the islands are expected to intensify as the globe continues to warm.
Missack, the Vanuatu diplomat, said the effects of climate change run much deeper than damage from storms. Most of the country’s residents depend on the crops they grow and the fish they catch, so their lives are intertwined with the environment around them.
Recently, the harvest of yam, a key crop that is already stressed by changes in the climate, was disrupted, throwing it out of alignment with the seasonal and celestial markers and accompanying rituals that normally tell farmers when to reap.
“One day we will talk about the stars, and this is how the ritual goes. But it will never be the same spirit, the same soul of the ritual,” Missack said. “And that loss, none of the money in this world can pay for it.”
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