By Cindy Woods
Legal and Policy Fellow ICAR
(International Corporate Accountability Roundtable)
In a groundbreaking decision for corporate accountability advocates, in January 2016 a Guatemalan environmental crimes court upheld a conviction against African palm oil corporation Reforestadora de Palma de Petén S.A. (REPSA) last month for ‘ecocide’—the extensive damage, destruction or loss of ecosystems to the extent that peaceful enjoyment by the inhabitants of the affected territory is severely diminished—in relation to its contamination of the Pasión River.
In April 2015, millions of fish and other animals in the Pasión River were found dead due to asphyxiation from pesticide runoff. According to Guatemala’s Council for Protected Areas, approximately twenty-three species of fish and twenty bird, mammal, and reptile species were impacted by the spill. Over twelve thousand people from seventeen communities who lived along the river and relied on it for subsistence and revenue were also negatively impacted, leading to the declaration of a state of emergency and a United Nations’ investigation.
Local civil society organizations, working together as the Comisión por la Defensa de la Vida y la Naturaleza (Commission for the Defense of Life and Nature), filed suit against REPSA in June 2015 before Guatemala’s specialized environmental court. In September 2015 the court ordered a six-month suspension of operations, suspecting the corporation’s culpability in the pollution. That same day, Rigoberto Lima Choc, human rights professor, defender, and one of the original filers against REPSA, was shot and killed just outside the Office of the Justice of the Peace. Three of his fellow Commission members were also abducted, though later released.
REPSA, ultimately found guilty in January 2016, first accepted responsibility immediately following the initial signs of pollution, citing an accidental overflow of its oxidation ponds due to heavy rains in the region. However, after subsequent toxicology reports found high levels of the illegal pesticide malathion in the river, the company reversed it’s stance by issuing a statement claiming no ecocide had occurred and the company was not responsible for any contamination. REPSA continues to deny its complicity in these human rights violations.
* * *
This case plays out like many we’ve seen before in Latin America regarding natural resource exploitation: large multinational corporation operating in foreign jurisdiction violates human rights on a large-scale, while denying culpability. As all too often occurs, those individuals attempting to defend their human rights against corporate power find themselves at risk: threatened, physically harmed, criminalized, murdered. This problem, sadly, is not new. What is novel, however, is the use of specialized courts to increase access to remedy for victims of corporate human rights abuse and the application of the crime of ecocide against a corporate actor.
Guatemala’s Special Environmental Court
Specialized courts are commonplace in most judicial systems, and their subject matter can range from very broad—such as family or tax courts—to very specific—i.e. Jamaica’s Gun Court, designed to specifically address firearms offenses. The arguments for and against specialized courts have been the discussion of academic debate for many decades, and will not be replicated in full here. However, arguments for such court systems are quite persuasive, and include increased judicial efficiency, consistency, expertise, and improved caseload management.
Guatemala is the first country in the world to establish a court dedicated to the adjudication of crimes against the environment. The Petén Environmental Crimes Court was inaugurated in July 2015 to address the myriad of crimes occurring within the region that have an environmental impact. Located in the Mayan Biosphere, and sharing isolated borders with Mexico and Belize, the department of Petén is ripe with narco-traffickers, animal poachers and traffickers, illegal lumbering, and palm oil production.
Over the last five years, reports USAID, only “five percent of complaints filed by citizens seeking environmental justice resulted in convictions.” According to Karla Hernandez, the new court’s first judge, “The Public Ministry was not accustomed to dealing with crimes against the environment, and therefore it lost its importance. My goal is to really push these cases through the system and bring about justice.” The Environmental Crimes Court, supported by various government agencies, including the National Police’s Environmental Investigative Branch, the national Council for Protected Areas (CONAP), and over 600 park rangers, is a straightforward attempt to close this gap in accessing remedy.
Within the business and human rights sphere, access to remedy has arguably been the most commonly overlooked and unaddressed issue. According to the UN Guiding Principles on Business and Human Rights, which establishes access to remedy as its third and final pillar, States must take adequate steps, through judicial, administrative, and legislative means, to ensure that when business-related human rights abuse occurs in their territory or jurisdiction, victims have access to effective remedy. However, strengthening and ensuring access to remedy for corporate human rights abuse has been unjustifiably low on the business and human rights agenda of many States for too long.
The outcome of the REPSA case illustrates the environmental court’s utility in increasing access to remedy for affected individuals in the business and human rights context. Especially within Latin America, where many corporate human rights abuse cases are tied to environmental degradation in the exploitation of natural resource (see the Texaco/Chevron pollution case in Ecuador or the more recent BHP Billiton tailings dam burst in Brazil for examples), specialized environmental courts could prove to be a key stepping stone towards State fulfillment of international law obligations. While still in its nascent stages, the further development and refinement of this court could prove revolutionary.
Corporate culpability for ecocide
What could prove even more groundbreaking than the use of specialized courts, however, is the application of ecocide culpability against a corporate actor. Ecocide as a specific offense is not a novel theory. The concept originated in the early 1970s as a result of the devastating herbicidal warfare tactics used during the Vietnam War. The extent of ecological harm and destruction caused by Agent Orange also launched decades of discussion within the United Nations regarding the establishment of ecocide as a violation of international law, though such codification never came to fruition.
Currently, about a dozen States have codified ecocide laws, and in 2011, a model ecocide act was drafted and tested in a widely publicized mock trial held by the UK Supreme Court. In 2013, a European Citizens Initiative sought to raise enough votes to introduce the Ecocide Directive in the European Parliament, though it did not succeed. Additionally, a campaign exists to add ecocide to the Rome Statute as the fifth international crime against peace.
What makes ecocide law especially noteworthy is it’s direct application to corporate actors. The proposed Rome Statute amendment would grant the International Criminal Court jurisdiction over not only States Parties, but also “companies, organizations with separate legal personality, and partnerships” for the specific crime of ecocide. The model act, which codifies ecocide at the State level, would also apply to “CEO’s, Directors and any person(s) who exercise rights, implicit or explicit, over a given territory,” creating a pre-emptive legal obligation to ensure their actions do not give rise to risk or actual extensive environmental damage.
The conceptualization of ecocide as an international law violation directly applicable to corporate actors would help shift the prevailing international law discourse towards increased corporate accountability. Current debate in this realm is still largely focused on whether or not corporate actors can be held directly liable for international human rights abuse, as this field of legal responsibility has traditionally been the sole obligation of States. Indeed, in a majority of jurisdictions, corporate actors are rarely, if ever, held to account for violations of human rights crimes (for more work on this, see ICAR’s Commerce, Crime, and Human Rights project).
As the crime of ecocide as applied to corporate actors becomes more globally accepted, codified, and utilized, discreet lessons from this specific human rights abuse can be taken into the broader business and human rights movement—primarily that corporations can be held directly legally accountable for the violation of human rights. With the Petén Environmental Crimes Court’s ruling against REPSA for ecocide, we may be witnessing the beginning of a slow moving, but much needed, paradigmatic shift in prevailing notions of legal personality within international law. What we are undoubtedly observing with this case is the creation of a new and important avenue for redress and increasing space for accessing remedy for corporate human rights abuse.