Tag Archives: law

In memoriam Polly Higgins, lawyer who inspired Extinction Rebellion: never before published interview on Ecocide

22 Apr
Ecocide campaigner Polly Higgins, back in 2011

Ecocide campaigner Polly Higgins, back in 2011

Shockingly, the lawyer Polly Higgins has died at just 50. She devoted the last decade of her life to trying to pass a game-changing, planet-saving law on Ecocide. This law is one of the key demands of the current Extinction Rebellion movement — as well as paralysing central London, Extinction Rebellion protestors occupied the International Criminal Court in the Hague a week ago to demand the adoption of Ecocide as the fifth international crime. Below is an interview feature I did with her in 2011, when her Eradicating Ecocide movement was in its infancy, for an eco-magazine which, sadly, folded before publication.

“Of course the slave trade is justified. It’s only subjugating blacks and heathens; and besides, it’s vital to the economy.” It’s hard to believe that, just two centuries ago, this was the prevailing view. Who now could look back on it with anything but abhorrence?

Yet, according to the lawyer and campaigner Polly Higgins, our children and grandchildren will regard our own era with similar disbelief. Multinational corporations have been allowed to strip the Earth of natural resources that have taken millions of years to build up, while climate change threatens a global disaster of unguessable proportions. And these companies haven’t merely a licence to do so, but practically an obligation: a CEO will be voted out if he fails to make the most profit he legally can for his shareholders.

“In essence,” Higging sums up wryly, “the law says ‘go ye and destroy the planet if you can make a profit out of it’.”

The slave trade was abolished in large part due to the efforts of William Wilberforce, who saw that economic arguments would always favour slavery, and that businesses were incapable of self-regulation despite their promises. Instead, he argued the legal case for abolition on moral grounds. Put simply, the slave trade was just plain wrong.

Higgins has come to a similar realisation. The quantifying of environmental damage, and the international trade in carbon credits, leads only to a mindset in which anything is permitted to those with a big enough cheque-book. Fines are simply built into a company’s balance sheets. A recent UN-sponsored survey placed the global cost of environmental damage by business at $6.6 trillion in 2008, predicting that this figure would rise to $28.6 trillion by 2050. Yet the majority of this is down to greenhouse gas emissions and climate change, an argument susceptible to endless counter-argument and speculation. Governments have been debating the point for decades, and show no signs of action.

Instead, like Wilberforce, Higgins proposes simply that environmental damage be termed a crime. Because it’s just plain wrong.  She is calling this crime “Ecocide”, and wants it enshrined in international law alongside Genocide – which, lest we forget, has itself been a crime only for the last half a century. And just as army generals and heads of state are accountable for crimes of Genocide, Higgins proposes that company directors be prosecuted directly for crimes of Ecocide. Only then, she argues, will they be forced to clean up their act.

Higgins has written a powerful manifesto, “Eradicating Ecocide”, which in July won the 2011 People’s Book Prize. Reader comments start at 10 on the dial — “inspiring… best book of the decade” — and go way past 11 to “probably the most important book in all history”.

Ecocide mock trial

She makes an unlikely eco-campaigner. There’s not a whiff of patchouli in her des res in Islington. Even the graffiti in this area is posh: a Banksy-style stencil of Wills and Kate adorns a nearby wall. Her mother was an artist, her father a scientist. It’s a winning genetic combination. There is a lot of woolly thinking around environmental issues, but she’s done her research.

Higgins has already pitched Ecocide as an international crime before the United Nations. And on September 30 the case will be debated in a mock trial in the UK’s Supreme Court. The trial has no legal standing, and the CEO in the dock will be fictional, but everything else about it will be real: some of Britain’s foremost lawyers and expert witnesses will present a real-world case – the Deepwater oil drilling disaster, perhaps, or the Alberta tar sands – before an impartial jury.

According to Simon Hamilton of the non-profit Hamilton Group, who is staging the trial, “This is very much not an event which is openly in favour of making Ecocide a crime. It’s to raise awareness of the issues, to have a debate.”

The event will be streamed live on the internet (including the deliberations of the jury), and Hamilton hopes also to make it the centrepiece of a bigger documentary. The event will cost £20,000 to stage, with half coming from corporate sponsors and half from individuals. A week before we spoke, he entered a plea for donations on the Crowdfunder website. With 44 days left to go to reach his target of £10,000, he had already raised £3,440.

It’s clear that the issue has captured the public imagination. And this, says Higgins, is vital. “Governments will not move unless public pressure gives them permission to move.”

She desperately wants this issue to build up a head of steam. Next June is the Rio Earth Summit: 194 delegates from around the world, most of them heads of state, will be debating issues such as Ecocide. It will be the 20th anniversary of the gathering in Rio where a whole raft of environmental legislation was on the agenda, but taken off again thanks to corporate lobbying.

“The businesses said that they would self-regulate,” says Higgins, “that there was no need for laws. Well, that gave birth to climate negotiations, and the concept of CSR (Corporate Social Responsibility), and 20 years on we’re in an even worse position. Just like Wilberforce said, voluntary mechanisms do not work. So, they’ll be looking at all this again, and this is our chance.” Bolivia, she says, is very much on board, and swinging the rest of South America behind it.

All the same: she can’t really believe this could actually happen, can she? The Ecocide debate is a great way of raising public awareness, but the things she is calling for – jail terms for CEOs who flout the rules, potentially even for the bankers who fund them; an eventual end to the exploitation of non-renewable resources such as oil – are surely too radical ever to reach international agreement.

“Absolutely I believe it can happen,” she retorts. “But I can’t do it alone. It’s about finding the voice of the people, but I am also trying to find someone higher up who will take it to the next level.”

Again, she cites the slave trade. “Wilberforce had a friend, Charles Grant, the CEO of the East India Company – the Shell or Exxon Mobil of its day. It derived enormous profit from slavery. All the same, Wilberforce got Grant on board, and he eventually went public, saying: ‘This is adverse to my company’s interest but still we must stop it.’

‘Today, I’m looking for the Charles Grants of industry. Richard Branson perhaps – at the climate negotiations last year, Branson said, ‘give us the laws and we’ll work with them’. I’m like the Apache Indian, creating smoke signals. Others will get it, and pass it along. And then hopefully the cavalry will ride into town.”

Yes, and we all know what the cavalry would do to the Indians. It’s a rare slip in an otherwise impressive flow. In conversation, Higgins demonstrates a winning combination of passion and logic. Of the controversial surface mining of Alberta’s tar sands, she says: “Shell says that the tar sands deposits only affect 1.5% of Canada. They say that to minimise it, but that’s a huge territory. It’s kind of like saying, ‘We only killed 1.5% of humanity, and they’re Jews so it doesn’t matter.’ It does.”

When asked how we would replace fossil fuels, Higgins has an answer for that, too. Desertec is a non-profit foundation dedicated to harnessing solar power on a massive scale, using solar panels in the world’s deserts. “Within six hours,” points out research leader Gerhard Knies, “deserts receive more energy from the sun than humanity consumes within a year.” This means that concentrated solar plants covering just 0.5% of the world’s deserts could, theoretically, power the whole world’s energy needs.

As to the expense, Higgins points out that the fossil fuel industry currently receives $600 billion in subsidies. “It’s the last gasp of a dying dinosaur,” she says. Both literally and figuratively.

Climate change eureka moment

Higgins had her Eureka moment on stage during the climate change debates in Copenhagen in 2009, when someone in the audience commented that we need a whole new language to deal with environmental destruction. “The word ‘Ecocide’ came into my head,” she remembers. “I went home buzzing, immersed myself in the problem, and didn’t come up for air for three months. By then, I’d convinced myself the argument was water-tight.”

The ground covered by her resulting book is wide-ranging. Nuclear waste dumping is “one of the great unarticulated problems of the future”, and it’s estimated that the use of warheads tipped with depleted uranium during the first Gulf War will cause 500,000 additional cancers in Southern Iraq over the next ten years. Not for Higgins the argument that nuclear power can be green. Pesticides have helped deplete the mineral and vitamin content in fruit and vegetables by up to 75%, yet up to 31,000 tonnes of pesticides are used in the UK each year, filling food with poison which we then ingest.

How much of this would be covered by the crime of Ecocide would be open to legal argument, though her definition is simple enough: “Ecocide is the extensive destruction, damage to or loss of ecosystem(s) of a given territory, whether by human agency or other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished.” There are existing precedents for defining terms such as “extensive” and “severely diminished”.

The key to deterrence is, she maintains, to prosecute individuals, not companies: to make CEOs personally liable for environmental destruction. Ignorance would be no defence. Witness the worst oil spill of recent times, the Deepwater disaster. In 2009, BP’s Environmental Impact Analysis stated that it was virtually impossible for an accident to occur. Yet occur it did, with catastrophic consequences. If Ecocide were a crime, BP chairman Tony Hayward would be in jail right now.

Not everyone’s heart will bleed for the fat cat on over £2 million a year who grumbled after the spill, “I want my life back” — but is it really fair to hold him personally accountable? Can you prosecute crime without intent? ”It’s completely fair,” Higgins shoots back. “Think of it as the difference between death by dangerous driving, and murder. If you’re driving too fast, you’ve still caused death. The sentence will be less, but you’re still going to jail.

“That said, I have no appetite for locking up CEOs; I have an appetite for changing what they are doing. These multinational companies have a colossal infrastructure, some great brains working for them. We need those leaders in the field. I want to turn the causes of the problem into the solution. BP at one time were genuinely going to go Beyond Petroleum, but they didn’t have the legislative framework to encourage them to do so.”

Her second book, which she has blocked out the whole of August to write, will deal with the practicalities of getting businesses onside, properly motivated and compensated. Like Wilberforce, Higgins is prepared to devote her life to this cause, though she is hoping that the internet age, with its ability to mobilise pressure groups, will speed things up. Just look at how quickly a simple Twitter campaign to pressurise the News of the World’s advertisers resulted in the closure of the paper and Rupert Murdoch being hauled up before the House of Commons.

Of next year’s Rio summit, she says: “Of course, all the campaigners can turn up and speak, and nothing happens. Everyone has a jolly good conference, everyone claps, and everyone goes home. Or we can give our leaders a mandate to act, by bringing pressure to bear, by the public, by the youth, by children having a voice and saying we want this.

“People can go on my site, sign on to the newsletter. We will have a tool kit up there soon to help pester politicians and heads of state, which can be very powerful. It’s about getting more and more people to use the language of Ecocide, about changing the emphasis to ‘I owe a duty of care’, not ‘I own’. Remember that children and wives used to be covered by Property Law. But now children are about trusteeship. Your child is not your property. If you abuse your child you can go to prison. It should be the same for the Earth.

“It all comes down to building a campaign. I have a year.”

She’ll need all the help she can get. The Slave Trade Act of 1807 imposed a fine of £100 for every slave found on board a ship. As a result, some captains simply threw their slaves overboard to escape prosecution. No matter what the law says, big business will be slow to change its ways.

Further information about “Eradicating Ecocide” can be found at https://eradicatingecocide.com/

 

Verdict just in: top poker player Phil Ivey “cleared” of cheating casino out of £7.7m

22 Oct
phil-ivey

Phil Ivey, the man you least want to sit to the right of at a poker tournament

Last night, Phil Ivey, commonly regarded as the world’s best poker player, was sensationally cleared of cheating a London casino out of £7.7 million by a court – of public opinion. After hearing arguments for and against by a distinguished panel that included a casino security expert and a barrister specialising in gaming law, the hundred-strong audience of LSE students voted overwhelmingly to acquit Ivey of the charge, overturning a “verdict” set last year in a civil court, and due to be formally challenged later this year at appeal.

The story of how Ivey won £7.7m in just two days could come straight out of Oceans 11, and the case is a fascinating one, in that both Ivey and the casino told the same story: the facts are not in dispute, merely the interpretation of whether they constituted cheating.

In August 2012, Phil turned up at Crockfords casino in Mayfair, asking to play punto banco at high stakes. Nothing so unusual about that: Ivey is known to bet millions of his considerable poker winnings at casino table games.

A little stranger was that he was accompanied by a Chinese woman called Miss Sun, and that he insisted on a variety of conditions he claimed were “lucky” for him: he wore his baseball cap backwards; demanded to keep a particular deck of cards, and that they were shuffled by machine and not human hand; and occasionally Miss Sun would declare a particular card lucky and ask the croupier to rotate it 180 degrees before returning it to the deck.

“The casino went along with all of this,” says barrister Zubair Ahmed, “thinking he was just a superstitious fool and they were going to take his money. They even let him keep the same cards the next day, after he’d already won millions.”

In fact, Ivey was using a technique called “edge-sorting”. “It is almost impossible to print entirely symmetrical decks of cards,” explains David Mills, MD of Casa Security, who acted as an expert witness for Crockfords in the real trial last year. “These cards weren’t actually defective, they were within the manufacturing tolerance for error of 0.3mm, and to the naked eye a normal person would not notice anything different about them.”

Miss Sun, however, had particularly acute vision: she, unusually, could spot the difference between one edge of the card and another when it was sitting in the “shoe” waiting to be dealt. When she came across favourable cards, she would ask for them to be rotated. Because, at Ivey’s insistence, they were shuffled mechanically, they remained that way round throughout the game; thus Miss Sun could tell when they were about to come up again. This was enough to turn the usual house edge into an edge in Ivey’s favour of between 6 and 20 per cent – enough to win £7.7 million in two days, betting up to £100,000 per hand.

Is that illegal? Ivey clearly felt himself that he was not cheating: “It’s not in my nature to cheat,” he said in court, “and I would never do anything to risk my reputation.” The judge also ruled that Ivey was a truthful witness who truly believed he had not cheated. The legal definition of cheating in this case rests on a single line: that there should be no actual or attempted deception or interference with the game. The judge last year ruled that there was deception – Ivey pretended to make his peculiar demands to get “lucky”, rather than because he was edge-sorting the cards – and that he interfered with the normal course of the game by asking the dealer to rotate certain cards. The LSE students disagreed: as one pointed out in the Q&A, footballers dive and poker players bluff, but that’s just part of the game; as to interference, he asked the casino to rotate the cards and they agreed – he didn’t do it when the croupier’s back was turned.

The panel was organised by Dan Cullen of the LSESU Poker Society, under the question, “Is it possible to beat a casino?”, so talk span off into other areas. Card-counting in blackjack (and “shuffle tracking”, which is keeping an eye on which cards get shuffled to where) will get you banned from a casino if they spot it, but it’s not actually illegal per se, as the judge in the Ivey case specifically ruled, unless deception and collusion are used. Another way to win is to wait until a slot machine is “ready” to pay out a huge prize and play it non-stop till it does. Poker raconteur Neil Channing, also in the panel, knew of some people who had made a fortune from online roulette, by writing an algorithm to spot imperfections in particular machines. These are all ways to subtly adjust the house edge in your favour.

To me, Ivey’s edge-sorting move is just an advantage play, exploiting the casino’s gullibility and greed at the prospect of landing a big “whale”, and Crockfords should have manned up and paid out. After all, it’s well known that if a famously canny gambler comes to you with a “prop bet”, that is a wager on something apparently stupid and random such as which snail can go faster, you don’t take the bet: they’ve probably fixed it somehow.

Channing told a great example connected with Ivey: “I had these friends who played golf against him many times, when he was still learning the game, gambling for hundreds of thousands, and he basically did his nuts. They were boasting about how he was an idiot, he was their money tree. They didn’t see him for six months, played him again, and he beat them for a million. In the meantime he had got lessons, a great caddie, learned the course and practised every day.”

What Ivey did to Crockfords seems little different. He exploited a weakness, without revealing his own strength. Casinos always have the odds stacked in their favour. If someone manages to turn the tables, temporarily, then good on them.

Either way, the debate is set to run and run. As well as the pending appeal in the Crockfords case, Phil Ivey and the Borgata casino in the US are counter-suing each other over a similar incident in which Ivey won $9.6 million at baccarat.