Abstract
Movements for environmental justice ought to engage the powerful mechanisms of change deployed in a Transitional Justice context. There is reason for restraint, however, in calling upon radically disruptive procedures to immediately amend the basic structure of society. I propose a modest expansion of the purview of Transitional Justice to recognize a class of environmental harms severe enough to trigger transitional measures. This class of harms is ecocide as social death, which I define as deliberate, state-sponsored environmental destruction resulting in the annihilation of ways of life intimately connected to the natural world. The article then considers potential criticisms of this framework: its foundation in liberal political theory, its anthropocentrism, and its exclusion of global environmental harms. Despite being anthropocentric, the model offers a means of politically and legally representing the value of the natural world beyond its role as a stock of resources for human consumption. I defend an expressly liberal approach to Transitional Justice that emphasizes the core of the liberal social contract—respect for diversity.
INTRODUCTION
Recent environmental justice scholarship questions the movement's effectiveness in ending systems of environment-related oppression. 1 A new vein of thought known as critical environmental justice problematizes the state-centered and legalistic approach of conventional environmental justice. 2
According to David Pellow, a leading proponent of critical environmental justice, the failure of the “reformist” approach stems from the fact that the state “was never intended to provide justice for marginalized peoples and nonhuman natures.” 3 Pellow argues the “purpose of a state is to exert control over populations, ecosystems, and territories… states are social institutions that tend to lean toward practices and relationships that are authoritarian, coercive, racist, patriarchal, exclusionary, militaristic and anti-ecological.”
Critical environmental justice scholars claim that since these systems of oppression coemerged with and were made possible by the modern state, it is difficult, if not impossible, to separate the state's progressive functioning from its repressive functioning. 4 They aver that social justice movements should hesitate to collaborate with state powers because reinforcing progressive state power may also reinforce state power more generally, including its repressive dimension. 5
Pellow instead offers a transformative vision attempting to push environmental justice beyond a reformist focus on changing state structures, institutions, and policies. 6 Laura Pulido similarly argues that the “state must become a site of opposition…in order to move [EJ] forward both as a movement and scholarly field.” 7 Pellow, however, instead of offering a framework for transforming the unjust features of the state, prescribes walking away from the state rather than toward it. 8
David Purucker argues that Pellow's insistence on an anarchist rejection of formal political organization poses serious problems, in that it risks pushing the movement away from politics that could win and utilize state power for socioenvironmental ends. 9 Purucker characterizes walking away from the state as not an effective strategy, but rather a surrender. 10
While ceasing to rely on and engage with unjust state institutions may appear commendable from a moral standpoint, it achieves little in terms of stopping, preventing, or diminishing the structural harms produced and reproduced by such institutions. As I have argued in a previous article, in the face of oppressive state power, distancing oneself from the harm may not be an adequate moral response. Rather, moral responsibility may demand one work toward changing the unjust state apparatus. 11
If it is accepted that states must become sites of opposition, and “walking away” is found to be insufficient, then there are compelling reasons for critical environmental justice and environmental justice more generally to engage with the discipline of Transitional Justice, which is concerned with precisely the goal of transforming states from unjust political regimes to just ones. 12
This is consistent with the impetus for critical environmental justice—the criticism of states as so thoroughly imbued with environmentally destructive tendencies that gradual localized reforms are inadequate. Transitional Justice offers concrete strategies and tools for the radical reconstitution of societies in which political wrongdoing has become so pervasive as to be normalized.
In an opportune convergence of interests, Transitional Justice is amid what has been called a “green turn.” 13 Environmentally concerned Transitional Justice scholars urge for the recognition of distinctly environmental harms, that is, man-made destruction and degradation of the biosphere, as severe enough to trigger a Transitional Justice response. To complete this green turn, thinkers must develop a concept of the types of environmental harms that are egregious enough to warrant Transitional Justice measures.
This may be used to determine when an environmental harm calls for a reformist response (i.e., legalistic) aimed at correcting environment-related inequities and encouraging gradual social change using currently existing state institutions, for example, legal proceedings, petitioning elected officials, public deliberation, or a transformative response (i.e., extrajudicial) requiring immediate political upheaval and direct opposition aimed at radical reorganization of the state.
A MODEST GREEN TURN IN TRANSITIONAL JUSTICE
According to Ruti Teitel's account of Transitional Justice, a fully adequate response to grave wrongdoing must include transition to a liberal democracy. 14 , 15 In such situations, the basic structure 16 of society must be immediately amended to establish respect for the rule of law, afford fair and equal treatment to all citizens, engender civic connectedness, and (re)establish reciprocal trust both institutionally and individually, that is, institute a liberal, democratic social order.
It is preferable for a green turn in Transitional Justice to remain reserved in designating social conditions that require abrupt restructuring of core institutions. Political reconstitution is typically turbulent, involving political and social strife, backlash, disruption of key infrastructure, and upheaval of citizens' lives. It is therefore prudent to avoid campaigning for Transitional Justice in situations where it is not absolutely warranted.
While some thinkers have already proposed a green turn for Transitional Justice, their conceptions have been overly broad and failed to articulate a clear limiting principle on the types of environmental harms applicable. For example, scholars have argued in favor of extending Transitional Justice to redress for natural disasters 17 and to confront the challenges of climate change. 18
In this article, I will define a class of environmental harms grave enough to trigger Transitional Justice mechanisms according to a modest expansion of its traditional purview. I call this class of harms ecocide as social death.
Contrary to a modest expansion, there is the worry that if Transitional Justice incorporates too limited a class of environmental harms, then its green turn will prove inadequate for confronting our present ecological crises. Moreover, since acts of environmental exploitation often entail human displacement, violence, and repression, 19 failure to prevent such harms may undermine Transitional Justice's aim expressed in its “never again” motto. I will thus seek to develop an expansion of the field that attempts to strike a balance between established, but limited, responses and more far-reaching, but untested, approaches.
I propose that Transitional Justice become responsive to deliberate, state-sponsored environmental destruction (ecocide) that results in the involuntary social death of communities of citizens. While the expansion is modest regarding the types of harms included, the addition of state-authorized harms to the environment, which results in social death to the purview of the discipline, constitutes a drastic expansion of the national contexts to which Transitional Justice would apply (e.g., to countries such as Canada, the United States, and Australia).
ECOCIDE AS GENOCIDE
Environmental harm is conceptualized by the international justice community as an egregious crime in the form of ecocide. Polly Higgins defines ecocide as “the extensive damage to, destruction of or loss of ecosystem(s) of a given territory… to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished.” 20
To theorize a modest green turn, it is helpful to first consider how Transitional Justice already includes some acts of ecocide within its purview. In these cases, ecocide is enacted as a means of carrying out genocide, ethnic cleansing, and mass death. I will refer to such cases of environmental destruction deployed as a tactic to exterminate peoples and end their way of life as “ecocide as genocide.”
An example of ecocide as genocide is Saddam Hussein's extermination of the Ma'dan, also known as the Marsh Arabs. 21 After the defeat of the Iraqi army in the Gulf War, the Ma'dan and other Shiite Arabs in southern Iraq, spurred on by President Bush's calls to overthrow the Hussein Regime, rebelled. 22 Hussein responded with overwhelming airpower and artillery fire. He poisoned the Ma'dan's wells and electrocuted the marshes in which they lived to end the rebellion and force the Ma'dan to abandon their ancestral homeland. 23
Hussein succeeded this onslaught with a comprehensive plan to destroy the habitat and prevent the Ma'dan from ever returning by draining the marshes, dredging their canals, and constructing dams that left 90% of their wetlands destroyed through desiccation. 24 Draining the marshes represents a clear example of ecocide as genocide. It was a deliberate plan to destroy the environment as a means of ending the Ma'dan and their way of life.
The result was essentially the eradication of the Marsh Arabs, with only a few thousand of the approximately half a million original inhabitants remaining. 25 The violence committed against the Ma'dan falls squarely within the Transitional Justice framework as it presents a case of state-directed genocide, ethnic cleansing, and mass murder.
Transitional Justice in its tested and traditional form includes actionable sociopolitical and legal tools, policies, mechanisms, and procedures for confronting such urgent situations in a timely manner. There is, however, a drawback of employing the ecocide as genocide model as a means of addressing environmental problems. This model excludes economically motivated forms of ecocide from triggering a Transitional Justice response.
It is uncontroversial to state that economically motivated ecocide is the main culprit behind many of our present ecological crises. If Transitional Justice is to be able to make a significant environmentalist impact, it seems it requires a modified conception of the wrongness of ecocide.
ECOCIDE AS SOCIAL DEATH
Genocide is defined as the death of a people (genos), for example, a social grouping belonging to a particular religion, ethnicity, or culture. Raphael Lemkin, the lawyer and activist who coined the term “genocide” and initiated the Genocide Convention, emphasizes the annihilation of a particular culture/way of life as the central feature of genocide's immorality. 26
Claudia Card similarly conceives of the distinct harm committed in genocide as the severing of groups' vital social interests, including their cultural identity, inter- and intragenerational connectedness, and social relationships. 27 She explains, “In my view, the special evil of genocide lies in its infliction of not just physical death (when it does that) but social death, producing a consequent meaninglessness of one's life and even of its termination.” 28
I employ Card's notion of social death in developing a conception of ecocide as social death for inclusion in the list of harms recognized as severe enough to warrant Transitional Justice mechanisms and processes.
The gravity of the issue of social death is perhaps more urgent than ever. Humanity is amid the greatest acceleration of cultural disappearance in recorded history. 29 Countless cultures have been lost or are in the process of losing their identity, traditional means of survival, social relationships, autonomy, and connection to their past. Most of these cases of social death through cultural disappearance are not caused by state-sponsored ecocide aiming to achieve mass death, but rather by state-sponsored ecocide aiming to achieve “economic growth and development.”
If Transitional Justice scholars and practitioners recognize that communities suffering from social death deserve normative consideration, then there are compelling reasons to expand the discipline's purview to include deliberate acts of environmental destruction permitted by the state that directly result in such outcomes. I define environmental destruction as “deliberate” when perpetrated with adequate knowledge of resulting ecological harms. State officials, institutions, or apparatuses are involved as authors of the harm when they could have knowingly acted otherwise to prevent the ecocide. 30
Well-documented and vivid examples of state-sponsored ecocide that have resulted in social death include (1) the Canadian government's decision to dam the La Grande River to provide urban communities electricity at the expense of the Northern Cree 31 ; (2) the British and Australian governments authorizing nuclear testing at Maralinga, which devastated the local Anangu people 32 ; and (3) Carbocol (a Colombian state-run company) and Exxon strip mining the Cerrejon Mountain for coal to the detriment of the indigenous Wayúu people and surrounding Afro-Colombian villages. 33 In each of these cases, the ecocidal activity was carried out without the consent of negatively impacted communities.
As per my framework, for an act to constitute an ecocide rising to the level of concern for Transitional Justice, it requires that three conditions be met: (1) the ecocide is commissioned directly by state agencies or with the state's blessing (i.e., legally); (2) it is carried out without consent of impacted group(s); and (3) it results in significant social death of impacted group(s). Some may worry that such an extension goes beyond the proper purview of Transitional Justice.
Unlike more canonical Transitional Justice settings, such as postauthoritarian Argentina and Chile or postconflict Bosnia and Rwanda, many of the states mentioned above are generally considered well-ordered, liberal democratic regimes, including Canada, Australia, and the United States. However, if a state demonstrates a wanton disregard for a group of citizens' way of life by deliberately taking actions that result in the group's social/cultural annihilation, it seems plausible to argue that the state's basic structure is urgently in need of reform.
Such a state has failed to live up to the central liberal ideals of respecting, tolerating, and preserving reasonable pluralism and allowing citizens to pursue their own reasonable life plans. 34 The legal permissibility of this form of ecocide may constitute political wrongdoing that has been so normalized to the point of threatening the legitimacy of the state's authority as a liberal democratic regime.
RESPONDING TO ECOCIDE AS SOCIAL DEATH
Responding to ecocide that causes social death demands implementation of the full range of Transitional Justice measures: punitive measures to bring perpetrators to justice and to punish them for the wrongs committed; reparative measures designed to offer redress to victims of atrocities for harms suffered, individually and collectively, in both material and symbolic ways; truth-oriented measures designed to allow the society to have a full accounting and documentation of what occurred and why by investigating who suffered and how they were harmed, scrutinizing who committed the atrocities and how they benefited, and determining the root causes and structures that led to the injustice; and institutional reform measures designed to democratize and liberalize public institutions and the structure of society to prevent such atrocities from reoccurring and enable society to move forward to a brighter future. 35
It is imperative that the Transition Justice response ends normalized collective and political wrongdoing against impacted communities by altering the institutional structures that persistently prioritize exploitative relationships with the natural world over sustainable ones.
Colleen Murphy conceptualizes collective and political wrongdoing as normalized when it has been deemed legally permissible and has come to be regarded as a predictable and unexceptional fact of life. 36 That natural spaces be continually sacrificed to maintain and expand industrial economic activity, severely impacting communities with a deep epistemic connection to the land, should not be regarded as an unchangeable fact of life in modern societies.
In recent works, I have defended a notion of ecorelational pluralism, which designates the environmental dimension of “reasonable pluralism” in the Rawlsian sense. 37 Recognition of pluralism in eco-relationality challenges the idea that economic growth and development are a universally desirable and absolute good. Such a view of economic development fails to account for communities who are not dependent upon, nor interested in being integrated into, the global industrial system. The culture, values, and ways of life of such people undermine common politico-economic justifications for ecocide, for example, the destruction will create jobs, lower prices, or “raise the standard of living.”
In a liberal, democratic political regime, choosing these goals over preservation of ecosystem integrity and the natural beauty of landscapes cannot in fairness be regarded as the only reasonable valuation of, and relationship with, the natural world.
Many theorists blame the liberal political structure of states as complicit in the economically driven exploitation currently laying waste to the environment, as occurs in ecocide committed through resource extraction operations such as mining, logging, and fracking. Transitional Justice theorists promoting a green turn challenge the discipline's commitment to liberalization on these grounds.
Rachel Killean and Lauren Dempster, for example, criticize the “liberal imprint” within Traditional Justice as entailing sympathy for “deregulated” “free-market ideology.” 38 I commend calls for scrutiny of economic institutions during transitional periods. However, I urge Transitional Justice and environmental justice scholars to pause before disowning their liberal foundations, as it is a mistake to conflate liberalism with libertarian free-market capitalism.
The core tenet of liberalism is respecting a plurality of ways of living. Rawls describes liberal principles of justice as defining a “pact of reconciliation” between diverse religions, moral beliefs, and the forms of culture to which they belong. 39 When pluralism is recognized in terms of eco-relationality, liberalization through Transitional Justice requires that states replace ecocidal social structures with forms of governance that respect peoples' ability to maintain an intimate and sustainable relationship with the natural world.
Consequently, in the wake of ecocide resulting in social death, even supposedly well-ordered societies such as the United States or Canada may have an obligation to take Transitional Justice steps to reform their basic structure (e.g., through amending their constitution or restructuring institutions) or risk illiberally prioritizing certain reasonable conceptions of the good over others.
CRITICISMS OF ECOCIDE AS SOCIAL DEATH
Some practitioners and theorists may contend that the concept of ecocide as social death is too restrictive. One may argue that this limited green turn in Transitional Justice excludes consideration for some of the most pressing environmental issues, such as climate change, ocean acidification, and desertification. Another potential worry is that focusing on social death defines the wrongness of ecocide anthropocentrically, that is, according to its impact on humans.
Some may feel that a truly green turn in Transitional Justice requires a wider expansion such that harms to nature and natural entities (i.e., the more-than-human) 40 are recognized as wrong independent of their effect on humans. The following sections will explore these potential criticisms of my proposed green turn.
Global environmental harms
Some scholars may argue that an effective green turn in Transitional Justice must enable the discipline to confront pressing global environmental problems, including climate change, ocean acidification, and ozone depletion. 41 However, I argue that there are major problems with including these environmental harms in the list of injustices that ought to trigger a Transitional Justice response. These problems make the exclusion of such harms preferable.
Ecocide, as I define it here, is the deliberate destruction of ecosystems/natural entities by human agents, such as occurs in resource extraction, for example, a mining operation that intentionally levels a mountaintop and knowingly pollutes surrounding sources of freshwater. Climate change is not a deliberately enacted environmental harm, but rather an indirect aggregate result from a multitude of contributory actions.
Limitation of my framework's scope through its focus on ecocide is appropriate to the context of Transitional Justice. Transitional Justice mechanisms are applied to the political realities within a given state. The discipline is thus ill-suited for confronting global environmental problems, which are not necessarily nor sufficiently caused, nor can be prevented, by the actions of any single nation taken individually. 42
Ecocide could involve environmental issues caused by the treadmill of economic production and consumption, such as algae blooms toxifying lakes due to fertilizer runoff, wildfires resulting from inappropriate logging practices, and avalanches triggered by mining. However, unlike in cases of global environmental problems, states possess the ability to unilaterally act to cease and prevent localized ecocide. Failure to do so may thus suggest malevolence or reckless disregard for the well-being of citizenry that could threaten the legitimacy of the state's political order.
Global environmental harms that are the largely unintended consequences of a great multitude of actions and actors seem less likely to be perceived as acts of oppression requiring immediate reorganization of the society's basic structure. As such, for the purposes of Transitional Justice, there are compelling reasons for limiting the class of environmental harms at issue to localized state-authorized acts of ecocide.
Anthropocentrism
Some theorists and practitioners may feel unsatisfied with a green turn in Transitional Justice that is inherently anthropocentric. They may argue that instead of tethering the wrong of ecocide to its negative impact on humans (social death), the discipline should embrace a nonanthropocentric approach that recognizes harm to nature and natural entities (the more-than-human) as wrong independent of its consequences to humans. In other words, one might assert that Transitional Justice ought to adopt a “deep green” appreciation of nature for its own sake.
In some countries, recent court decisions, 43 legislation, 44 and constitutional amendments 45 have afforded “legal personhood” to the more-than-human, such as animals, plants, and ecosystems. This could offer a basis for Transitional Justice to recognize the wanton destruction of these entities as on par with the mass death of humans.
In the future, if this jurisprudence of attributing personhood to natural entities continues to spread, the discipline might expand to include harms to the more-than-human. For now, however, there are compelling pragmatic reasons for Transitional Justice to adopt an anthropocentric environmentalist approach.
There is currently a lack of consensus in politics and popular opinion over the question of whether natural entities are valuable for their own sake. Anthropocentric environmentalism, on the other hand, is much less controversial. Such an approach is therefore more likely to engender widespread political uptake. As Martha Nussbaum argues, “since action protecting the environment is not a matter on which we can afford to wait, it is important to develop anthropocentric positions.” 46
Moreover, focusing on ecocide as social death avoids a key underlying worry of antianthropocentrism critiques. Many theorists find it problematic for the value of the natural world to be politically and legally represented only in terms of how it can be converted into generalized goods for human consumption, for example, shelter, commodities, food, and drinking water.
Environmental justice frameworks are criticized on these grounds as identifying the wrongness of ecocide distributively in terms of how it unfairly burdens some citizens with a relative lack of natural resources. Critics feel there ought to be a way to represent the value of the natural world beyond its status as mere “standing reserve.” 47
Focusing on ecocide as social death furthers this aim. By identifying the wrongness of ecocide through the loss of traditional cultures intimately connected to their local habitats, it offers a means of politically and legally representing appreciation for nature over and above its role as a stock of resources. Natural entities are represented in their particularity, rather than as substitutable bundles of goods.
Imagine, for example, a river that is severely polluted, resulting in a lack of drinking water for a riverside community. A generalized distributive justice model might find it a satisfactory solution for the community to be provided a supply of bottled water that can abundantly meet their drinking needs. By focusing on ecocide as social death, however, the degradation of the river counts not merely as the loss of consumable goods but also as the loss of an important relationship with a particular natural entity.
In short, although ecocide as social death is not itself a deep green model that assigns intrinsic value to the natural world, it is a liberal political framework that affirms such deep green valuations as worthy of respect. For instance, if a community views a natural entity or location as sacred, that is, having intrinsic value deserving of reverent care, and the state is engaged in environmentally harmful activity that degrades or destroys the natural object or space, then the community could petition the state to cease and desist on grounds that continued interference will result in their social death. 48
Thus, although itself anthropocentric, ecocide as social death aims to protect and promote conceptions of nature as intrinsically valuable.
CONCLUSIONS
This article has encouraged scholarly and practical connections between movements for environmental justice and the discipline of Transitional Justice. Although thinkers such as Pellow espouse an anarchist environmentalist strategy that shuns formal organizational structuring, the general motivation behind critical environmental justice (its excoriation of contemporary states as guilty of pervasive and deeply rooted environmental injustice) seems particularly relevant to this interdisciplinary meeting.
This article has explored how Transitional Justice might include environmental harms in the class of wrongs severe enough to demand a transitional response. A case has been made for a green turn that remains focused on comparable types of harm (social death) and their causes (deliberate state actions) that are the traditional concerns of the discipline. I have proposed that “ecocide as social death” be included in the purview of Transitional Justice.
I have defended the liberal political basis of the discipline and argued that responding to ecocide as social death requires that the state liberalize its institutions to secure respect for ecorelational pluralism. A benefit of this approach is that it does not represent the value of the natural world purely in terms of its capacity to be transformed into generalized primary goods for human use, for example, commodities, shelter, jobs, food, clean air, and drinking water.
The wrongness of ecocide is recognized not merely as a depletion of natural resources but also as the loss of an intimate relationship with a particular place and specific natural entities.
Footnotes
AUTHOR'S CONTRIBUTION
The author confirms sole responsibility for all aspects of the submission.
AUTHOR DISCLOSURE STATEMENT
No competing financial interests exist.
FUNDING INFORMATION
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