Environmental victimisation: corporate villainy or state connivance?

Introduction

In recent years environmental crime perpetrated by corporate actors against

human and non-human animals has received increasing attention from the

public and academic commentators. High profile disaster-events like the 2010

BP oil spill in the Gulf of Mexico, the Fukushima Daiichi Nuclear Power Plant

disaster of 2011 and the on-going extraction of the Athabasca oil sands have

contributed to a heightened awareness of the role (and culpability) of

multinational corporations in environmental degradation. Many commentators

situating themselves within the field of green criminology have rightly focused

attention on the role of capitalism in the fostering of such harms. Whilst in no

way contradicting such ideas, this paper will take a different approach to

environmental crime by exploring the issue in terms of victimisation. The

paper will look to radical victimology to explain the role of the state itself in

facilitating much environmental victimisation. Drawing on notions of state

victimisation and abuse of power, the paper will seek to deconstruct why

environmental victims (especially non-human victims) tend to figure quite low

on the list of priorities for governments. The paper argues that by approaching

the topic of environmental harm and crime with the tools of victimology –

especially the developed literature on victims’ rights - in partnership with those

of criminology, our understanding of the issues can be taken beyond a

straightforward 'blaming' of capitalism.

The corporation and environmental harm

In recent years the study of environmental degradation, environmental crime

and a broader conceptualisation of environmental harm has blossomed in the

criminological literature, such that ‘green criminology’ now features regularly

on the programmes of all the major criminological conferences. From the

outset, many green criminologists have been influenced by the critical and

radical schools of criminological thought in this endeavour, focusing their

attention on the features of western capitalist society in their conceptualisation

and explanation of green harm. In particular, this has led to a focus on the role

of large, transnational organisations, along with how governments, society

and the law respond to their actions. This approach makes sense given the

profusion of major environmental disasters linked to the actions or inactions of

such corporations world-wide. Of course, this does not mean that corporate-

perpetrated harm is the only concern of green criminology. Agnew (2013) for

example has recently drawn the attention of criminologists back to what he

calls “ordinary acts that contribute to ecocide” which are "widely and regularly

performed by individuals as part of their routine activities" (p.59). On a similar

point, we should bear in mind that the majority of environmental criminal

prosecutions (in the UK at least) are carried out against individuals (Bell and

McGillivray 2008).

The above notwithstanding, the scale and nature of transnational corporate

activity afford such organisations the capacity to perpetuate major long term

and widely dispersed instances of environmental harm. In a seminal green

criminological discussion, Lynch and Stretesky (2001) analysed the question

of corporate harm and violence: utilising evidence from medical literature and

related studies that focused on the health consequences associated with toxic

waste, pesticide and dioxin exposure. In so doing, they argued that the

significant health consequences associated with modern industrial production

of toxic waste products “can be thought of as ‘criminal’ in the broadest sense

since alternative, nontoxic methods of production are often available” (p.153).

Nevertheless, some six years later South (2007) was still highlighting the

failure of criminologists to focus attention on the operation of large

transnational companies.

In keeping with the radical critique, it is often noted that many of the corporate

activities which foster environmental damage are not in fact officially

recognised as criminal (or even illegal) across many jurisdictions. To explain

this, it has been argued that major corporations have the social capital and

power to heavily influence the formation of laws and regulatory systems in

their favour (**). Furthermore, corporations tend to ‘neutralise’ the moral

blameworthiness of their actions (Sykes and Matza 1957). White (2011)

building on ideas put forward by Glasbeek (2004) argues that the corporation

as an institution was designed largely to separate the responsibilities of its

owners (shareholders) from the fictitious ‘legal person’ of the corporation

itself. Thus, corporations are designed as ‘criminogenic creatures’ to remain

immune from civil, administrative or legal prosecution and censure (Bakan

2005). Indeed, it has ben suggested that, characterised as a ‘legal person’,

corporations exhibit signs of psychopathy:

“like all psychopaths, the firm is irresponsible, because it puts others at risk to satisfy its profit-maximising goal, harming employees and customers, and damaging the environment” (The Economist 2004: unpaginated)

Concerning the influence on the law-making process exerted by corporations

and the powerful elites who run them, Simon (2000) drawing on the work of

Taylor (1997) expresses the point in stark terms:

“globally, nationally, and locally, upper-class business owners have consistently opposed certain environmental regulations, approved of those that benefitted them economically, and used other as a form of social control of the lower and working classes (p.104).

Various conceptualisations have helped steer the development of green

criminology in this more radical direction. South (2007) draws parallels

between corporate and colonial practices of theft from and denial of rights to

indigenous groups, arguing that “Today’s pursuit of empire is of the corporate

variety” (p.241). Mol (2013) has argued that criminology needs to incorporate

a ‘colonial aspect’ through examining the mechanisms by which power flows

through green issues:

“a power-based approach to harm can advance understanding of the organising principles that have something to say about where harm is perpetrated; against whom and what; the nexus and shifting boundaries between crime and harm; as well as who decides on the terms of the debate” (p.255).

The remainder of this paper will largely be concerned with the nature of power

(and its abuse) in capitalist society as it is vested in corporations and, as I will

come to in the next section, the state itself.

State connivance?

It is within the context of such probing into the nature and centres of power in

capitalist society that some commentators have emphasised the role not just

of corporations in the proliferation of environmentally destructive activities, but

of corporations working closely with the state. Indeed, whether green

criminologists should focus their attention on corporation entitles, on the state,

or both is in fact a matter of some conjecture. Rothe et al (2009) for example,

in comparing the relative political/social influence of large transnational

corporations and states, have argued that the crimes of the former are in fact

a far more important subject of criminological enquiry because:

“Although the problem of crimes by the state is important, we have to be cognizant that perhaps the power of states is declining and that other transnational actors like multi-national corporations are becoming more powerful and less controllable” (p.5).

Whilst there is definite truth to this position, it may be countered that

corporations operate in the social and legal context supplied or permitted to

exist by state actors (see Bowman and Kearney 2010). The proposition that

criminogenic and victimogenic activities/omissions of the state itself also

constitute an essential area of study has always been an important

component of critical criminology, with several commentators developing

distinct ‘criminologies of the state’ to help conceptualise this dynamic (see

Kauzlarich et al 2001). Others have pointed out that the relationship between

the state and the corporation, far from being a simple case of the former

regulating the latter, often seems to involve the two working together to their

mutual benefit (Kramer et al 2002). From the green criminological perspective

we might also be concerned with how such actions/inactions of the state

(often in collusion with corporate actors) lead to environmental harm and

question whether the state ultimately bears degrees of responsibility. As noted

by White (2013):

“The nature of the state as a site for, and facilitator of, transnational environmental crimes and harms certainly warrants further explicit consideration by green criminologists” (p.258).

We might draw on a number of high-profile examples which seem to expose

the role of state actors in major environmental disasters: albeit such harm is

often directly perpetrated by corporations. One such case is the often-cited

1984 gas leak in Bhopal (India) in which highly toxic methyl isocyanate gas

was released from a plant owned by the Texas-based Union Carbide

corporation. Much can be made of the failure of Union Carbide in this case to

transplant appropriate safety procedures from its US operations to the running

of its Indian plant. Nevertheless, the fact that Union Carbide was permitted to

run the plant under lax conditions raises important questions concerning the

Indian state’s complacency in the disaster. Such questions are well articulated

by Groombridge (1991) (citing the work of Pearce and Tombs (1990)):

“Bhopal may not have happened if the Indian State could afford to employ more and better inspectors and followed the policies they advocate” (p.8).

Another of the most frequently raised allegations of state/corporate

connivance in producing crime with a specific environmentally destructive

component is that of the alleged collusion between the US government and

the Dow Chemical Company. As summarised by Katz (2010):

“Since WW II, Dow Chemical Corporation and the US government have developed and maintained a long-term, mutually rewarding, symbiotic relationship in order to accumulate political and economic hegemony under the guise of national security and international developmental assistance resulting in transnational corporations not being held accountable for numerous environmental crimes” (p.305)

Particular attention has been paid to Dow’s production and the US

deployment of so-called ‘Agent Orange’ and ‘Napalm B’ as part of its chemical

warfare programme (operation Ranch Hand) in the Vietnam war between

1961 and 1971 (see Hyoung-Ah et al 2003). Both the US government and

Dow have consistently played down alleged toxic effects of Operation Ranch

Hand on humans or the wider environment (Green 1992; Dow 2012:

unpaginated). Katz (2010) emphasises that the Indian government has also

worked closely with Dow for economic benefits, even after Dow acquired the

Union Carbide Company in 2001.

In the African context, a prevailing example of state cooperation (and arguably

collusion) with transnational corporations leading to major environmental harm

is the situation on the Nigerian Delta, where since 1950 oil exploitations –

notably by Royal Dutch Shell – have had dramatic effects on the local

environment, its human and animal populations, and in particular the

indigenous Ogoni people (see Lindén and Pålsson 2013). The Nigerian

state’s complicity with such harms – specifically the military government of

General Sani Abacha – was brought to international attention when prominent

Ogoni environmental activist Ken Saro-Wiwa was executed following his

conviction for inciting the murder of four Ogoni chiefs (see: Dillon, 2012; Saro-

Wiwa 1992). The charges were widely viewed as false and the trial dismissed

as fixed by the authorities and thus a case of state-sanctioned homicide

(Bastian 2002). Saro-Wiwa’s family have since mounted legal actions against

Shell for alleged human rights abuses in the region.

The fact that the Nigerian government has vigorously supported the position

of the oil companies for many years has had significant knock-on effects for

the whole justice system in Nigeria. Thus, Ebeku (2003) discusses concerns

that, well into the new century, Nigerian judges were succumbing to

government pressure to deny compensation or restitution to individual victims

or to communities bringing cases against the oil companies for the massive

environmental harms caused by the industry. In short, it is argued, the judges

were prioritising the country’s economic reliance on the oil industry over the

protection and restitution of the environment.

In 1996 oil extraction on the Nigerian Delta was considered by the African

Commission on Human Rights and Peoples Rights in the now famous

Ogoniland case1. The case was pursued by NGOs arguing that the Nigerian

state had ‘condoned and facilitated’ gross environmental damage caused by

State Oil companies and Royal Dutch Shell, leading to “environmental

degradation and health problems resulting from the contamination of the

environment among the Ogoni People” (Paragraph 2 of the judgment). The

decision of the Commission maintained that the African Charter of

Fundamental Right and Freedoms:

“requires the State to take reasonable and other measures to prevent pollution and ecological degradation, to promote conservation, and to secure an ecologically sustainable development and use of natural resources” (Para. 52).

The judgment of the Commission also laid out the harms and health impacts

of the state-sanctioned oil extraction in particular on local communities:

“The resulting contamination of water, soil and air has had serious short and long- term health impacts, including skin infections, gastrointestinal and respiratory ailments, and increased risk of cancers, and neurological and reproductive problems” (Para.2).

This has significant implications from a human rights perspective (to be

discussed below). The ruling in itself represents a milestone in the cause of

holding state actors responsible for their dealings with corporations and

thereby permitting long-term environmental harms to a given human

population, non-human animals and the environment.

One final example of alleged state-corporate ‘crime’ to be examined here will

be the corporate exploitation of tar/oil sands in Alberta, Canada. This has

been commented on by Smandych and Kuenman (2009) who argue:

“the Canadian government has been remiss in its duties to provide energy security and a long-term sustainable Canadian energy policy for future generations of Canadians by not extracting appropriate levels of

1 Judgment available at http://www1.umn.edu/humanrts/africa/comcases/155-96.html

compensation from oil companies through negotiating adequate royalty fees" (p.106).

‘Oil’ or ‘Tar sands’ (Smandych and Kuenman 2009) prefer the latter

description because they argue the former constitutes a strategy by which the

issue is made to sound ‘less dirty’ by state/corporate actors) are bituminous

sands containing large deposits of bitumen that can be processed into

petroleum. The Canadian state of Alberta has the largest deposits of this

resource on the planet and Canada is presently the only country with large-

scale industrialised exploitation programmes: on-going since 1967. Production

from the oil/tar sands has however increased dramatically in the last ten years

as the world’s supply of oil dwindles and prices rise. The environmental

impacts of the extraction and refining process have frequently been the

subject of criticism from environmental groups (Woynillowicz and Severson-

Baker, 2009). This process requires vast amounts of water and releases

noxious gasses including carbon dioxide. Smandych and Kuenman (2009)

contend that misinformation provided by successive Canadian governments

essentially downplaying the environmental impacts of the extractions amounts

to ‘greenwashing’ and that:

“the Alberta tar sands developments stands out as a case of state-corporate environmental crime because of the extent to which it involves consciously planned and executed campaigns aimed at deceiving the public about the actual harms and risks posed by the aggressive expansion of the tar sands” (p.57)

Charges of greenwashing have frequently been levied at large corporations

and governments by various authors (see Laufer 2003; Athanasiou 1996) and

whilst the term itself has certain normative implications, this example

highlights that the identification of harms and the presentation of ‘objective’

scientific evidence must themselves be the subject of scrutiny and critique by

green criminologists. Smandych and Kuenman (2009) go on to argue that

both the Canadian Federal Government and the Alberta state government

have manipulated environmental regulation to benefit the corporations

extracting the oil from the sands, and that regulation of this industry has been

purposely lax: acting as an ‘enabler’ of the industry rather than a ‘watchdog’.

Importantly, the situation in Alberta is not merely a case of Canada exploiting

its own resources. In fact Smandych and Kuenman (2009) argue that Canada

has effectively ceded its ‘national energy sovereignty’ to the US. This has

occurred via the signing of Free Trade agreements between the two countries

that essentially prevent Alberta from placing restrictions on the amount of

petroleum products exported to the US (without cutting their own consumption

of the resource proportionally). Canada has thus become a major (and

compulsory) supplier of energy to the US, and in particular the US military.

Whilst such an interpretation of the situation is certainly open to debate, this

does illustrate the political and legal background to many environmental

harms, as well as the corporate angle.

By way of summarising this section, in a recent contribution Gaarder (2013)

emphasises how corporations rely on states to reduce costs through lower

taxes and less costly environmental regulation. Governments in turn rely on

corporations to produce goods, deliver services, generate employment and

generate tax revenues. Thus, he argues, ultimately state-corporate actors

work together to hide the extent of environmental harm caused by their

actions and to deny responsibility for this. One way of achieving the latter is

directing any responsibility towards already marginalised groups in society

with little political voice, whilst directing the harm itself onto animals, who have

no political constituency. At the same time, the author argues that such state-

corporate actors further deny responsibility by representing environmental

harm as the responsibility of individual offenders. In fact, however, the author

contends:

“The majority of green harm is a result of corporate-political relationships in pursuit of profit, not just a few individuals making harmful choices” (p.170)

From a green criminological perspective, Lynch and Stretesky (2003) have

remarked that the complex interaction between state and corporate liability

follows what they call the ‘politicalization of global warming’. Citing in

particular the administration of George W Bush in the US as facilitating

corporate polluting practices and, ultimately, an acceleration in climate

change the authors argue:

“With respect to the findings, our study of global warming as a state-corporate crime highlights the extensive intersections between corporate interests and state actions during the G.W. Bush Administration. Demonstrating these extensive connections is, we would argue, the foundation for any study of state-corporate crime” (p.232)

In sum, therefore, whilst it is arguable that corporations rather than states are

the true drivers of global environmental harm, the impact of state interests and

collusion with corporations (based on economic, political and other drivers)

cannot be underestimated by green criminologists.

Blaming capitalism?

For many, the primary output of the debates and examples outlined above

has been to implicate capitalism itself as a consumer of the environment.

Saint (2008) has argued that environmental/green values are simply

incompatible with the goals of capitalism:

“Capitalism and the modern condition contain within them many characteristics that are incompatible with environmental protection. The hubris of humanity that exists within modernism, and the overriding desire for material wealth of capitalism, operate in a dichotomous master/slave relationship with the environment” (p.23)

Some criminologists have disputed the assumption that capitalism is always

incompatible with more eco-centric values. Grabosky and Gant (2000) for

example, argue that recent development of environmental concerns in many

countries in fact represent real market opportunities for corporations who

might otherwise turn to secondary eco-crimes (regulation avoidance) to stay

profitable. Such opportunities include growing consumer demand for

‘environmentally benign’ products as well as the development of modified

processes of production that consume less raw materials and ‘end of pipe’

pollution abatement technologies. The authors also discuss the growing

preference amongst retailers for supplies that buy and produce

goods/materials in an environmentally friendly, ethical fashion and the

predicted growth in the environmental services industry (including

environmental monitoring, auditing and risk management).

From a capitalist perspective the above arguments sounds more positive, but

some proposed solutions may mask longer-term environmentally harmful

consequences. One such case is the development of bio-fuels, the most

prominent example of which is African palm oil cultivated in Columbia

(Escobar et al, 2009). Bio-fuels are often presented as ‘green’ crops with the

potential to address future energy needs in an environmentally sustainable

manner (Basiron 2007). Nevertheless, as argued by Mol (2013), the

cultivation of such crops has negative long-term impacts for local people and

their ecosystems, and specifically their biodiversity. This also represents a

continuation of large corporations exploiting disempowered local communities.

The above notwithstanding, White (2011) is surely correct to point out that

simply ‘blaming capitalism’ is not of itself especially useful to the green

criminological project because this constitutes “little more than rhetorical

shorthand for ‘something is wrong’ rather than providing a guide to who,

precisely, is doing what within the overarching parameters of global

capitalism” (p.92). Ultimately this is perhaps the key shortcoming of the

Marxist and the more traditional radical criminological perspective: they

provide only a broad context in which environmental harms can be

understood, but do not furnish criminology with the tools for more detailed

analyses.

By way of response to this perceived difficulty in approaching environmental

harm thorough the lens of a pure and limiting critique of capitalism, the rest of

this paper takes a different approach by focusing on the victimisation aspects

of environmental harm: incorporating victimisation by corporate bodies and

victimisation by the state. To consider the issues outlined above from the

perspective of victimisation is not in in itself a huge departure from the

established radical critique, a key aspect of which is that law and crime impact

upon different parts of society differently in an institutionalised fashion.

Certainly if one examines the harms inflicted by environmental degradation

one can see the parallels to Marxist observations. The evidence increasingly

points to the fact that those humans most affected by the environmentally

destructive practices of major corporations tend to be the poorest and most

marginalised in society at a local, national and global level, and would

certainly be described by Marx as the proletariat class. In a less

anthropocentric vein, animals and the environment itself often bear the

greatest impact of environmental harm due to a prioritisation of human needs

(Wyatt 2013).

Environmental victimisation by corporations and the state

A focus by victimologists on environmental harms is one of the more recent

outcomes of the broader development of green criminology (Hall 2013). This

new (or perhaps, renewed, see Williams 1996) study of so-called

environmental victimisation has prompted victimologists (like criminologists) to

reconsider radical arguments that social harms often derive from powerful

social elites. Given the involvement of such elites in the creation of

environmental harms, illustrated above, such environmental questions are

pushing victimologists to consider the implications of victimisation at the

hands of corporate actors and the state itself.

The above notwithstanding, discussion of corporate and state victimisation is

still markedly underdeveloped in victimological writings: within the

environmental sphere and beyond it. including harms perpetrated in the name

of state actors. One of the earliest contributions to the victimological literature

on environmental harms was that of Williams (1996) who defines

‘environmental victims’ as:

“those of past, present, or future generations who are injured as a consequence of change to the chemical, physical, microbiological, or psychosocial environment, brought about by deliberate or reckless, individual or collective, human act or omission” (p.35).

This definition embodies intergenerational justice (Hiskes 2008) and,

importantly for Williams, is grounded on the notion of ‘injury’ rather than

‘harm’. Williams argues that this is a useful starting point if the goal is to

develop functioning legal systems around environmental victimisation,

especially in criminal justice systems. This is because the concept of injury is

more objective and measurable than the wider notion of ‘harm’. The objection

one might pose to this from the radical perspective however is that any such

officially sanctioned definitions of ‘injury’ will, as we have seen, be heavily

influenced by powerful elites and corporate lobbying in particular. Williams’ is

also of course an entirely anthropocentric definition.

When South and Beirne (2006) compiled one of the first collections of writing

on green criminology in 2006, Williams’ (1996) work was still the only piece

specifically focused on the victims of environmental crimes. From here though

the development of the literature take off in more critical directions. Thus,

South and Beirne’s (2006) collection also contained a section entitled ‘Rights,

Victim and Regulation’ which included another important intervening

contribution from Lynch and Stretesky (2001) on toxic crimes and what they

called ‘corporate victimization’. In this paper the authors present evidence of

the significant health effects (mainly to humans) of corporate practice

production leading them to conclude that corporations “show a blatant

disregard for the effects of their products and by-products on human and

animal populations” (p.165).

Following South and Beirne’s (2006) edited collection progress towards

understanding environmental crime/harm from a victimological, and certainly a

radical, perspective continued to stall. In White's (2009) reader on

environmental crime, three years later, the only chapter dedicated to

victimisation was another reprint of Williams’ (1996) paper. A further edited

collection from White (2010) has no specific chapter on victimisation, although

South (2010) reflects upon the unequal impact of climate change on various

groups of (usually poor) human victims, and the possibility that some

‘environmental rights’ are being breached. For South, this unequal distribution

of environmental harm reflects wider tendencies towards ‘social exclusion’,

which have long been a topic of research and discussion in radical

criminology as well (Byrne 1999). Thus, South (2010) concludes, the

depletion of resources caused by environmental derogation can only

exasperate the existing social division between the well off and the poor.

White (2011) has more recently dedicated a chapter to environmental victims

in which he emphasises the socio-cultural context of understanding and

responding to environmental harm:

“Ultimately the construction of [environmental] victimhood is a social process involving dimensions of time and space, behaviours involving acts and omissions, and social features pertaining to powers and collectivises” (p.122).

Spencer and Fitzgerald (2013) have also offered fresh insight into

environmental victims by essentially taking the argument beyond its

(predominantly, they argue) Marxist roots to apply more poststructuralists

thinking. In particular they apply Felix Guattari’s (2008) critique of what he

called integrated world capitalism to the question of corporate environmental

offending and subsequent victimisation: using the 2010 Gulf of Mexico spill as

a case study. The authors argue this victimisation event can be understood in

terms of environmental, social and mental ecologies. In so doing, the authors

expose the complex and multifaceted nature of such victimisation itself both in

human terms and in terms of the environment and non-human animals.

Another recent chapter by Bisschop and Vande Walle (2013) discusses

(human) victims of illicit e-waste transportation practices and calls for the

involvement of local stakeholders in addressing these problems in line with

concepts of environmental justice. Finally, I have recently commented on the

development of a ‘green victimology’, emphasising in particular the needs for

such a field to engage in interdisciplinary dialogue and research across the

social and physical sciences, as well as with sectors beyond the academy

(NGOs, policy maker etc.) (Hall 2013).

Developing victimology to answer green criminological questions about state-corporate actions

It is argued that if green criminologists are to fully confront the questions

raised by corporate and state-perpetrated environmental harm, then green

criminology needs to be much more in tune with victimological approaches

than was the case during the development of most other, more established,

areas of criminological discussion. This is because fundamentally green

criminology, as we have seen, is often concerned with environmental harms

rather than officially recognised crimes. As such, study of how those harms

occur, to whom (or 'what') and their short and long-term impacts is central to

the exercise. The radical observation that environmental harm is perpetrated

by the powerful at the expense of the powerless necessitates detailed study

from the perspective of the victimised (rather than the formal legal position) if

we are to map the contours of the problem. Furthermore, the more eco-centric

perspective (incorporating harm against non human animals and the

environment itself) focuses attention on the recipients of harm rather than its

perpetrators.

From the outset, victimological writings can cast light on how states tend to

deprioritise such victimisation (often in favour of more economic and fiscal

goals) in their dealings with corporate actors. Indeed, for McBarnet (1983), it

was victimologists themselves who were partly to blame for this state of

affairs. By concentrating their attention on traditional notions of victimhood the

author argues that researchers in the field somewhat played into the hands of

governments wishing to derive political capital from victims and punitive

criminal justice responses:

“politically, victimology has contributed to the strengthening of the state's role. It has set itself up as engaging not just in academic debate but in "affirmative action for the victims of crime", and, like traditional criminology before it, its too- ready acceptance of official definitions of criminal and victim have reinforced rather than questioned the status quo” (p.302, emphasis in original).

These sentiments take on an added dimension when applied to the issue of

environmental harm, because such discussion may often concern harms

perpetrated (or at least endorsed) by the state itself. Elias (1983) and Rock

(1990) go further to argue that society’s narrow conception of victimisation is

brought about by selective definitions of crime, construed for political

purposes, and in the case of environmental degradation, we might add

economic purposes.

Nils Christie (1986) famously argued that the attention paid by policy makers

to victims of crime was limited in focus to those displaying ‘ideal’

characteristics. Such characteristics include being weak, being a stranger to a

‘big and bad offender’, carrying out an innocent activity and cooperating with

the authorities. Such was the anthropocentric bias of academic study in this

area at the time, however, that even Christie did not problematise the fact that

the ideal victim is of course also human. Human environmental victims, as

has already been noted, do indeed tend to be from less powerful components

of society. Nevertheless, such victims often neglect to ‘make their case

known’ to the authorities, either because they don’t attribute harm to the

polluting actions of corporations and the state itself, or (in the absence of

criminalisation or other legal censure of such activities) there is no mechanism

for them to report to. Thus, in a systematic review of environmental victims

and legal systems Skinnider (2011) argues that:

“Victimologists have generally not included victims of environmental crime in their research. Further study is required to get a better understanding of this type of victimization and how it differs from other types of victimization” (p.25).

From the limited information available Skinnider goes on to extrapolate the

following broad characteristics of environmental victims:

(i) The victims are not always aware of the fact that they have been victimised;

(ii) The victimisation is often delayed with the victim becoming aware of the victimisation much later after

(iii) Victims are not sure about who victimised them or who exactly is responsible;

(iv) The victimisation is often serious not so much because any individual victim was seriously affected, but because numerous

victims were affected by the crime; and (v) Victimisation can often include repeat offences.

Again, these characteristics do not fit well with those of Chritie’s ‘ideal victim’.

More recently, Wyatt (2013) has developed a hierarchy of victimhood in

relation to environmental harm which places humans at the top, followed by

states, followed by non-human animals, plants and the environment itself.

Clearly though the human victims of other kinds of offending (and harm)

would be placed above this hierarchy, and in many cases apparently so would

the state and corporate need for growth.

Sate responsibility, abuse of power and environmental victimisation

So far we have seen how states work alongside corporations in ways which

facilitate environmental harm that impacts on both human and non-human

victims. We have also seen how states deprioritise such victimisation as

politically inconsequential (and inconvenient) whilst the corporations both

work to ‘neutralise’ their moral culpability for environmental victimisation and

avoid legal liability.

Holding states themselves responsible for such victimisation is equally

problematic because, as demonstrated already in this paper, a state may go

to great lengths to ensure both itself and its corporate partners are working

within domestic legal and regulatory regimes: crafting the relevant laws to

ensure they remain so. One might predict that this is the point at which

international environmental law would take over, but in fact holding states

responsible for environmental harm at the international legal level has proved

similarly problematic. Whilst progress has been made both in terms of

substantive treaty-based international law and in terms of general principles in

the international legal community, it is generally still difficult to argue that most

such understandings have been accepted as universal principles of

international law (Redgwell 2014). The so-called ‘no-harm principle’ (whereby

states may be obliged to prevent environmental harms occurring to other

states) may be an exception, although the ‘harm’ conceived here clearly

suggest harm caused to states rather than to individuals living within states

(Birnie et al 2009). This reflects the tendency of international law to reaffirm its

status as a body of rules “created by states, for states” rather than

encompassing individual human and non-human victims below the state level

(Alston, 2005).

In an attempt to reconcile some of the above complexities in conceptualising

environmental victimisation and the mechanisms by which this occurs at the

hands of corporate and state bodies, one possible solution is to draw on the

UN General Assembly’s definition of ‘victims of abuse of power’ from its 1985

Declaration of Basic Principles of Justice and Abuse of Power (see Hall

2013). The 1985 Declaration defines victims of abuse of power as:

“[P]ersons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that do not yet constitute violations of national criminal laws but of internationally recognized norms relating to human rights” (Para.18).

The inclusion of this paragraph within the 1985 Declaration was intended to

encompass victimisation by the state. Later, Kauzlarich et al (2001) would

draw on this provision in developing their own framework ‘victimology of the

state’. The authors’ typology effectively groups ‘state crime’ into four

classifications. Firstly, ‘Domestic-International Governmental Crime’ occurs

within a state’s geographic jurisdiction against international law or human

rights. Secondly, ‘International-International Governmental Crime’ occurs

outside a state’s geographic jurisdiction against international law or human

rights. ‘Domestic-Domestic Governmental Crime’ occurs within a state’s

geographic jurisdiction against domestic criminal, regulatory, or procedural

laws or codes and, finally, ‘International-Domestic Governmental Crime’

occurs outside a state’s geographic jurisdiction against domestic criminal,

regulatory, or procedural laws or codes.

Kauzlarich et al’s typology provides a rare insight into the complexities

inherent in the notion of being victimised by a state. The authors place

environmental derogation under the category of Domestic-Domestic

Governmental Crime, although we might take issue with this given that

actions by one state might well lead to environmental derogation in another

state, possibly making this International-Domestic Governmental Crime.

Examples of such victimisation in practice include the harms falling on the

Maldives as a result of rising sea levels arguably triggered by climate change

(Docherty and Giannini 2009). It is widely (although not unanimously, see

Mörner et al 2004) argued that damage is occurring to the islands, its fish

stocks and, consequently, the human population who rely on these when the

Maldives itself is one of the lowest contributor states to climate change in the

world. Another salient example can be drawn from the reaction of some states

to environmental activists, a case in point being the sinking of the Greenpeace

flagship Rainbow Warrior in Auckland harbour in 1985 by the French Secret

Service. Carrabine et al (2014) remark on this particular example of state

victimisation in the following terms:

“States condemn ‘terrorism’ but are perfectly capable of resorting to terrorist-type methods when in conflict with oppositional groups” (p.394).

In keeping with the more radical victimological critique, abuse of power is

specifically conceived in the 1985 Declaration as actions and omissions that

do not constitute crimes: making it particularly relevant in cases where

environmental damage falls within a (perhaps purposely devised) legal ‘grey

area’ As such, states are prompted to:

“[P]eriodically review existing legislation and practices to ensure their responsiveness to changing circumstances, should enact and enforce, if necessary, legislation proscribing acts that constitute serious abuses of political or economic power, as well as promoting policies and mechanisms for the prevention of such acts, and should develop and make readily available appropriate rights and remedies for victims of such acts” (Para.19).

On the face of it ‘abuses of political or economic power’ has the potential to

capture many of the activities discussed above, including the political

influences exerted by corporate actors. Importantly, the definition also

employs the term ‘harm’ rather than ‘injury’, again giving it the breadth to

encompass a wide range of environmental victimisations. Under the

Declaration, acceptance of environmental victims as victims of abuse of

power would compel states to offer them a plethora of services, and perhaps

‘rights’ (see Hall 2010). Of course, the Declaration is a non-binding document,

but its influence on public policy worldwide in the field of mainstream criminal

victimisation has been significant, with most jurisdictions tracing their own

victim policies back to its provisions. That said, it is notable, and consistent

with the radical critique, how the specific provisions concerning victims of

abuse of power victims (as opposed to victims of state-recognised crimes)

has received considerably less attention by both academics and policy-

makers. Consequently, many victimologists have begun looking towards wider

conceptualisations of victims’ rights for solutions, to which this discussion now

turns.

Environmental rights and victims’ rights

Under the 1985 Declaration abuse of power is conceived as “substantial

impairment of...fundamental rights”. In more recent years there has been a

move towards conceptualising victims of crime as having ‘rights’ (see Doak

2007). Many countries now have declarations or charters listing the ‘rights’ of

victims of crime’ and at the EU level there is a Directive (2012/289/EU)

establishing minimum standards on the rights, support and protection of

victims of crime.

The question of whether such developments afford even ‘mainstream’ (non-

environmental) victims of crime genuine ‘rights’ is a complex one. In

particular, because the mechanisms for the realization of such ‘rights’ within

individual jurisdictions are usually limited to the internal complaints

mechanisms of justice agencies, the enforceability of such rights is left open

to question (Hall 2010). This begs the question of how those who are affected

by environmental damage brought about through criminal acts, or indeed

wider ‘abuses of power’ by states, could seek to assert such a right in the

domestic or international legal order.

It is contended that there are distinct parallels to be drawn between moves to

ascribe ‘rights’ to victims of crime more generally and recent developments

within international legal scholarship concerning environmental harms. In

particular, in the light of the difficulties we have noted above in applying

domestic or international law to environmental harms,

international legal

scholars have increasingly turned to the question of human rights - including

so-called ‘environmental rights’ - as a means of ascribing responsibility to

states and other parties for such harms. Birnie and colleagues have described

this development as “perhaps the most significant shift in the focus of

international law” (2009: p.269). Thus, it can be argued that such moves also

provide considerable impetus to the cause of radical victimology and the

acknowledgment of victimisation by the state in particular, especially in

relation to environmental harms.

The development of distinct ‘environmental rights’ has, nonetheless, been

somewhat restrictive. There is little evidence on which to base the acceptance

of a separate right to a green and unpolluted environment at the international

level. In Europe, the European Court of Human Rights (ECtHR) has

specifically excluded this concept in a number of rulings (Wilson 2011). This is

unfortunate because, as more local decisions have shown in African2 and

South American courts: these jurisdictions have not only recognised such

rights but, in so doing, they have directly addressed the ‘balancing’ of

individual/state/corporate interests which seems to lie at the heart of much

environmental victimisation, and indeed of radical victimology more generally

(see Hall, 2013).

Generally speaking the adapting of more widely recognized human rights to

‘fit’ green issues seems to have proceeded more apace: although this

2 Notably in the Ogoniland case discussed above.

direction can be criticised for its anthropocentric bias (these being human

rights). Clearly the ECtHR is increasingly prepared to interpret rights found

within the European Convention on Human Rights in this way. Thus, in the

landmark ECtHR case of Lopez Ostra the Court found for a breach in Article 8

(the right to respect for privacy and family life) caused by the sighting of a

waste disposal plant near the complainant’s home. Similarly, in Budayeva and

others v Russia the Court held that a failure by public authorities to provide

adequate warnings to the public and to put in place containment mechanisms

against dangerous mudslides of which they had received advanced warnings

was a breach of Article 2 (the right to life).

The difficulty with the ECtHR jurisprudence is that whilst it recognises a

grounds of action (in the form of breaches of rights) it has done little to shed

light on the participation rights of green victims in the justice process

surrounding that harm. The question of ‘standing’ to participate in proceedings

is often at the centre of rights discussion both in relation to victims of

traditional crimes and victims of environmental harm. Indeed, the International

Law Commission has remarked that “[t]he definition of victim [of

environmental harm] is thus linked to the question of standing” (ILC 2006:

p.137). The ILC highlighted the example of France, where “some

environmental associations have been given the right to claim compensation

in criminal cases involving violation of certain environmental statutes" (p.137).

In this regard green criminology might do well to borrow developed

conceptions of ‘service rights’ (affording victims guarantees such as access to

support mechanisms, short waiting times and information) verses

‘participation rights’ (affording victims some measure of influence in the justice

process itself) used in the victimological literature (Hall 2010).

Overall, it seems there has been a lack of holistic or joined-up thinking in

relation to the rights of victims of environmental harm. Many of the relevant

arguments concerning the creation of such rights have in fact already been

made by victimologists and mainstream victimology provides a solid basis for

their development, having considered issues like the right to be heard, the

right to have a victimisation acknowledged and so on for years. This literature

also points the way towards consulting victims themselves as to what

rights/services they require. Many instruments designed for traditional victims

of crime contain a number of relevant provisions for victims of environmental

harm, including the right to information, support and courteous treatment.

Indeed, in the US case of Re Parker; U.S. v U.S. District Court and W.R.

Grace & Co. the United States Ninth Circuit Court of Appeals ruled that

prospective victims of environmental harm were included within the ambit of

rights provided under the 2004 Crime Victims Rights Act, despite not being

specifically mentioned within that legislation.

The key difficulty is that, at present, there has been a lack of consideration of

the victim of environmental harm in relation to more general victims

measures, and the result is that such victims are effectively excluded from

such instruments. From the perspective of international law, whilst we have

seen that the development of rights for victims of environmental harm are

underdeveloped, the overall picture supports the proposition that such rights

are possible (indeed in local contexts they do exist) and that international

courts and administrative bodies are equipped (although inexperienced) to

address issue like the ‘balancing’ of state/individual perspectives and even the

‘standing’ of such victims to participate in the process.

Conclusion

Whilst the nature of capitalism has been rightly highlighted as a pervading

factor in the systematic destruction of the environment by states working

alongside corporations, such critique provides little in terms of a way forward.

By contrast, victimological theory and research offers a number of tools and

ideas that may be especially applicable to the area of environmental harm, its

criminalisation and its regulation. It is thus submitted that increasingly such

literatures must be considered together and policy-makers must be prepared

to transpose workable ideas between areas. For example, whilst we have

seen that the present reality of an international human right to a clean

environment is questionable, much work has been done on the development

of rights for victims of crime and wider social harms, including victims of

abuse of power. Thus, seen from the perspective of victimisation there is

scope for further discussion and debate around the application of existing

victim reforms to the environment: for example under principles and laws

developed from the 1985 UN Declaration of Basic Principles for Victims of

Crime and Abuse of Power.

Following on from the above, victimological study has also demonstrated that

non-binding instruments at the national and international levels (what some

international lawyers call 'soft law') can add real impetus and drive to a reform

agenda (exerting genuine impact on the actions of states) despite them

lacking formal compulsive power. This implies that ‘hard law’ and especially

full criminalisation is not the only mechanism of addressing environmental

harm or developing responses to it (politically or legally). In addition one of the

key areas explored by victimologists is how notions of ‘victim rights’ can be

grounded in general human rights. Increasingly, we have seen how

international environmental lawyers are turning to similar arguments in

attributing liability to states for the impacts of climate change and other

environmental harms on individuals.

In short, therefore, there is a compulsive case for far more involvement of the

victim perspective at an earlier stage in the development of a radical green

criminology than was ever the case in most other established areas of

craniological thought. This of course makes the reality that environmental

victims still lag behind the main vanguard of green criminology all the more

concerning and prioritises the need for more discussion and research in this

area.

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