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Restorative justice FAQs

 

What is restorative justice?

Restorative justice is a process which brings victims and offenders into communication, enabling everyone affected by a particular incident to play a part in repairing the harm and finding a positive way forward.

It gives victims the chance to tell offenders the real impact of their crime, to get answers to their questions, and an apology. It lets offenders understand the real impact of what they’ve done, to take responsibility and make amends. Restorative justice holds offenders to account for what they have done, personally and directly, and helps victims to get on with their lives.

Rather than focusing on punishment, three important principles that underpin this approach are the need for restoration, the need to make amends and the concept of ‘healing’.

When does restorative justice happen?

Restorative justice may be offered to victims and offenders before a Judge passes sentence. If so the Judge will adjourn legal proceedings to allow for this to take place. In such a case the Judge may take the restorative justice outcome into account when deciding the sentence.

Restorative justice can also be used after sentencing, this may be in the course of a prison sentence or when offenders are about to be released.

What are the pre-conditions for restorative justice to take place?

Restorative justice is a voluntary process. A pre-condition to participating in any restorative justice process is that the offenders have accepted responsibility for their actions, and both the victims and offenders agree to participate.

Is restorative justice an alternative to jail?

Restorative justice can be a diversion from criminal prosecution in the case of low-level offences. However, for more serious crimes, including the crime of Ecocide, it is highly unlikely that it would ever act as an alternative to a criminal sentence.

The Judge may however, take into account the restorative justice process when sentencing the offenders.

Why are we holding a restorative justice meeting?

Restorative justice is increasingly being used to address conflict, build understanding and strengthen relationships. In criminal justice it is being used for lesser crimes and often more serious crimes. It is not currently being used when crimes are committed by corporations.

The aim behind creating an international crime of Ecocide is not to punish, but to change corporate behaviour. We want to end damaging and destructive practices and to open the floodgates to a clean and green economy. Just sending CEOs to jail for Ecocide is unlikely to change behaviour. When offenders are sent to jail they may never truly understand the effects their damaging behaviour has had on their victims. This fails to change behaviour and put an end to damaging practices.

Restorative justice is a healing process which allows for a dialogue to take place between the victims and offenders. The offenders will be made aware of the effects of Ecocide on their victims. This process may result in an agreement between the parties which will help restore the damage done. It may also prevent the CEOs from committing future Ecocide.

Using restorative justice to rehabilitate CEOs has never been done before. This event is a world first. We are holding this event to see whether and how restorative justice will work in practice.

Why not just send the CEOS to jail?

There is no guarantee that the offenders will stay out of jail. However the Judge should take into account the restorative justice outcome when deciding whether the offenders should go to jail. Ultimately this is a decision for the Judge. Like all alternative dispute resolutions, if the parties have failed to come to any agreement, conventional sentencing will be the next step.

How is restorative justice enforced?

In a restorative justice hearing offenders may reach some form of agreement with the victims. The options as to what this agreement will be are wide ranging and it ultimately it depends on what the victims wish to be done, and what the offenders agree to do.

The outcome can be enforced by making it part of a community sentence or a condition of a probation order.

Who decides whether a restorative justice sentencing is used?

Restorative justice may be given as an option to offenders and victims. It is a voluntary process and the Judge cannot order anyone to take part in this. If a restorative justice hearing is offered and accepted by both the offenders and the victims then the Judge may adjourn legal proceeding to allow for this.

The Judge will take then take the outcome of the restorative justice hearing into account when sentencing the offenders.

What is Ecocide?

Ecocide is the destruction, damage and loss of ecosystems. It is happening on a mass scale, every day and it is getting worse. But we can change this – by making it a crime.

An international law of Ecocide would make CEOs and our Heads of State legally responsible for the Earth. People and planet would become the number one priority.

Ecocide is part of Earth law – a new body of law we need to protect the Earth.

The legal definition of Ecocide is:

The extensive damage to, destruction of or loss of ecosystem(s) of a given territory,
whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished.

To find out more about what Ecocide is click here. For more questions and answers about Ecocide please go to http://eradicatingecocideincanada.org/what-is-ecocide/

Why should I care?

Ecocide and this sentencing are relevant to everyone. Cases of mass destruction of our Earth are taking place around the world — these are great miscarriages of justice. We are trying to set them right.

For anyone interested in law, business, or the future of our planet, the restorative justice sentencing will demonstrate how the law will be enforced and change businesses behaviour.

How is this relevant for business?

It makes long term business sense to be sustainable and sustainability means not committing Ecocide. It is more cost effective for businesses to not commit Ecocide in the first place than to pay the costs of restoration after the damage has been done.

This restorative justice sentencing will demonstrate to business that it is not our intention to work against them. Our aim is to end Ecocide, to prevent it from happening and to change the damaging behaviour of companies. We want business to lead the way into the green future.

Is this anti-profit?

No. This is not about stopping corporate activity, nor is it about stopping profit. It’s about stopping activity that is damaging, and stopping profits that arise from illegal plundering on a mass scale. This law is about corporations taking responsibility. It is about putting in place a pre-emptive obligation, a duty of care to prevent Ecocide from happening in the first place. The corporations who in the course of their activities are causing enormous Ecocide, or are at risk of causing Ecocide, must now become accountable for such activity.

By making Ecocide-related activities criminal, business will be under enormous pressure to prevent such activity taking place. CEOs and directors of corporations will not wish to make decisions that will render them at risk of conviction, heads of banks will no longer want to sanction the funding of criminal activity and governments will not want to be seen to be making policy decisions which promote such criminal activity. Innovation, finance and governmental support will by necessity flow in the other direction. These corporations will then become clean companies, banks will finance non-damaging activities and governments will create planet-friendly policies. This is about corporations turning rapidly from being the problem to being a big part of the solution.

Who would initiate the legal proceeding of ecocide?

As the International Criminal Court (ICC) is a court of last resort, the starting point is the state; in the UK it would be the Crown Prosecution Service. Where a Member State is either unwilling or unable to act, the ICC will step in.

If, for example, it is in relation to activities licensed by a government, e.g. the Alberta tar sands?

A case can be raised by the ICC in any one of 4 ways; by the UN, by a Member State, by a prosecutor of the ICC of his own doing or by an individual writing to the ICC.
In the example of the Alberta Tar Sands, in Canada individuals can raise private prosecutions, as happened with the Syncrude Dead Duck Trial (initiated by the Sierra Club, which the State then took over). Where the State fails to act, the ICC can step in.

If it is the latter, how will governments be persuaded to become signatories?

Canada has already ratified the Rome Statute. What is being sought is an amendment to include a 5th Crime under the Rome Statute. Once it is amended, Canada will be bound by it.

Who will enforce the judgment of the ICC? What are the penalties and how will they work?

Enforcement of any ICC conviction is by a sentence of imprisonment. All international crimes begin with a minimum of two years.

Ecocide includes activities carried out by human agency as well as by other causes (acts of God), why is the second category included in the concept of ecocide?

Naturally occurring ecocide imposes a legal duty of care to provide assistance to those who are at risk of mass ecosystem collapse, whether it be as a result of rising-sea levels or a tsunami.

What is the legal remedy for a naturally occurring event that causes environmental devastation?

Firstly, nations will be held legally accountable for helping those who have been, or are at risk of, subjected to naturally occurring ecocide. Secondly, in so doing, emergency relief will be a legal requirement.

Which company director/s is charged/named?

It could be the CEO and/or any one of or all of the directors (and any head of bank who has financed the dangerous industrial activity). The decision as to whom to prosecute will ultimately lie with the prosecution.

The director of the company doing business in the country where the damage was done, or the director of the parent company or both?

Both.

What is the scale of the environmental damage done to be a crime of ecocide?

This comes down to size, duration and impact. During war-time, the 1977 United Nations Convention on the Prohibition of Military or any other Hostile Use of Environmental Modification Techniques (ENMOD) sets outs the parameters; the same can be applied during peace-time.

The Rome Statute sets out an extended definition of damage to the environment, specifically as a consequence of War Crimes, which provides useful assistance. Article 8(2)(b)(iv) criminalises:
“widespread long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.”

Change one word here: “widespread long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall community advantage anticipated”, and incidents of ecocide such as the BP Gulf oil spill can begin to be properly assessed.

The wording used in this section was adopted from the ENMOD which the terms “widespread”, “long-lasting” and “severe” as:

“widespread”: encompassing an area on the scale of several hundred square kilometres;
“long-lasting”: lasting for a period of months, or approximately a season;
“severe”: involving serious or significant disruption or harm to human life, natural and economic resources or other assets.

Is each director of each company charged or a collective of companies within an industry?

This is a decision for a prosecutor; whether to use sample counts against sample industries or to take a belt and braces approach and prosecute them all.

Who to charge for damage? e.g. Amazon – the farmer or the government?

Depending on the size, duration and impact test, it can be the owner, a minister and/or the bank who financed it.

Will criminalisation of this kind of corporate activity shift business practices in reality?

Yes. Ecocide is already a crime in Kyrgyzstan and currently a prosecution is underway.

What is the change model?

A transition period of 5 years.

How will a law of Ecocide work in practice?

Please see more about the mock trial.

Has anything has yet been written on Ecocide particularly in the way of critical scholarly work?

Many academic institutions are using the book, Eradicating Ecocide, as a course book – law schools, environmental studies and business schools. Some are writing thesis and papers are being written for publication, some later this year.

Which governments have articulated their support for an international crime of ecocide to be heard by the ICC?

None have spoken out publicly as yet.

What were the two CEOs found guilty of?

At the mock trial held in the UK Supreme Court on 30 September 2011, the two fictitious CEOs were found guilty on two indictments:

STATEMENT OF OFFENCE Ecocide contrary to section 1(1) and section 2 of the Ecocide Act 2010

PARTICULARS OF OFFENCE

Between 28th day of March and 6th day of September 2010 in his role as Chief Executive Officer, Mr. Bannerman of Global Petroleum Company (GPC), had authority and responsibility of all GPC operations in the Tar Sands. As a consequence of extraction from the Athabasca Tar Sands in Canada the creation of tailing ponds has led to extensive destruction, damage to or loss of ecosystem(s) to such an extent that the peaceful enjoyment by the inhabitants of that territory, and of other territories, has been severely diminished thereby putting birds at risk of injury and death, contrary to section 1(1) and section 2 of the Ecocide Act 2010.

STATEMENT OF OFFENCE Ecocide contrary to section 1(1) and section 2 of the Ecocide Act 2010

PARTICULARS OF OFFENCE
On 19th April 2011 in his role as Chief Executive Officer, Mr. Tench of Glamis Group, had authority and responsibility of all Glamis Group operations in the Tar Sands. As a consequence of extraction from the Athabasca Tar Sands in Canada the creation of tailing ponds has led to extensive destruction, damage to or loss of ecosystem(s) to such an extent that the peaceful enjoyment by the inhabitants of that territory, and of other territories, has been severely diminished thereby putting birds at risk of injury and causing 1,600 birds to die, contrary to sections 1(1) and section 2 of the Ecocide Act 2010.

What is The Hamilton Group?

The Hamilton Group is a not-for-profit organisation aiming to bring the issues of the Earth to the forefront of decision-making. www.thehamiltongroup.org.uk 

Why is the University of Essex hosting this event?

As a UN Global Compact member, the University of Essex is committed to upholding the ten principles, three of which directly involve the environment. Hosting the Ecocide event contributes to the University’s commitment but is also in keeping with its reputation as a space for open and frank debate on a wide range of issues affecting the world.

The University has a number of research and academic units that variously work on significant issues affecting the world, in particular the Institute for Democracy and Conflict Resolution, the Human Rights Centre and the Essex Sustainability Institute.
Testing the boundaries of international law in the way that the human rights movement has makes sense for the environmental movement. This event allows for progressive and quite radical arguments to be deliberated through role play scenarios, academic panels, and discussion sessions. The day will help raise awareness about a problem that affects all of us now and for the future.

The event also helps build knowledge networks of like-minded people and organisations and to challenge the obstacles to change with respect to environmental protection.
The event is a great illustration of how the IDCR works with a wide range of organisations concerned about how the world is governed.

What is the IDCR?

The Institute for Democracy and Conflict Resolution works on forging and maintaining sustainable democratic institutions. It works to prevent and resolve conflicts through academic analysis, training, outreach and knowledge exchange across a wide range of issue areas.

Its mission is to provide high quality and practical knowledge for all actors and stakeholders working to develop peaceful solutions for governing the world.

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