The multinational company Monsanto has a controversial reputation. In October a public tribunal was held where five judges heard testimonies of witnesses from around the world affected by Monsanto’s policies and products. This could be an important step in the development of international law to hold corporations, not just Monsanto, accountable for their actions.
October saw the world witness a very special event in The Hague, Netherlands, sometimes referred to as the city of peace and justice. In a tribunal organised by civil society, with five real judges, lawyers, and witnesses, and experts from five continents, the chemical-seed company Monsanto was accused of violating human rights. The questions raised were whether Monsanto is guilty of violating the right to food, health, a healthy environment, and freedom of expression and scientific research. In addition, the question was raised of whether the company had engaged in war crimes by delivering Agent Orange to the US Army for widespread use in the Vietnam war. The sixth question that will be explored, based on investigations and witness statements, by the panel of five independent judges in their legal advisory capacity to the international court in The Hague, is if these acts could add up to the crime of ecocide.
Monsanto is well known for the production of genetically engineered seeds for crops like soy, corn, and canola, providing feed for the animal industry, agrofuels for cars, and high-fructose corn syrup for the food industry. The sale of their patented seeds goes hand in hand with the most used herbicide in agriculture, Monsanto’s very own Roundup. This model has been the commercial success formula for the GMO industry: selling patented seeds alongside selling herbicides. The other commercial GMO success is the sale of plants engineered to produce their own pesticides. The aggressive legal prosecution of farmers who are suspected of patent infringement has made Monsanto infamous. The effects of the widespread use of herbicides and other pesticides have led to great loss in biodiversity and a huge impact on health in countries where these crops are grown.
Since the mid ‘90s huge parts of South America have been turned into GM soy fields. The northern part of Argentina, the southern part of Brazil, and most of Paraguay are sometimes referred to as the ‘United Republic of Soy’. The area is still expanding, and is one of the big drivers of deforestation. The agro-industrial model embodied by Monsanto contributes greatly to climate disruption. Those who live in the countryside and cities surrounded by soy crops suffer from the extensive use of pesticides, and fertile soils are depleted at an alarming rate.
The sustained attack on the health of a whole population, and the destruction of nature and biodiversity have urged people to raise the question of whether Monsanto could be held accountable and on top of that tried for ecocide. This term is used to refer to the destructive impact on the environment that many want to see included in international law. The concept originated in the 1970s and in 2010 it was proposed that the Rome Statute be amended to include the international crime of Ecocide. The proposal was submitted to the United Nations International Law Commission but has so far not made it into law. The definition proposed includes provisions for both individual and state responsibility and would be a strict liability crime, including both intent and negligence.
The idea to organise this tribunal originated in the Netherlands from where connections were made throughout Europe and other continents with those who are affected by Monsanto’s policies. The Monsanto Tribunal was funded by donations and relied mostly on passionate organisers and volunteers to realise the practical implementation. In The Hague people from all over the world testified to the implications of Monsanto products, which they had experienced first-hand or researched. In comparison to other continents, Europe has relatively few Monsanto products in its soil. Only one type of GM Monsanto Corn is grown in Europe at the moment. On the other hand, Europe’s animal industry relies heavily on the import of GM soy and corn. The German company Bayer announcing its takeover of Monsanto just a few weeks before the Tribunal was held, and the looming transnational trade agreements expose Europe to the same risk of the high amount of intensive GM farming.
Concerning the critique of Monsanto’s products and the overall criticism of the way the company genetically modifies organisms, many sources will note that there is no scientific evidence backing up what the critics say, but lots of evidence affirming Monsanto’s claim that their products are perfectly safe. However, there is sufficient peer-reviewed research to raise serious doubts about the safety of their products, but this research hardly ever reaches the mainstream media. Thus the general population will for the most part believe the ‘official scientific narrative’. This is a telling example to illustrate that our current system of scientific consensus is insufficient to deliver transparent science to civil society. Monsanto has a systematic policy of trying to control information on scientific studies and thereby trying to control what is considered legitimate science. Conscientious scientists who conduct experiments and try to report their results are ridiculed, shunned from scientific journals, lose respect from peers in their fields and sometimes even their positions, and are called “un-scientific”.
When companies like Monsanto can influence what scientific journals do and do not publish, there can be no true scientific insight gathered from the official scientific consensus; scientific journals doing the bidding of great economic powers, is a clear sign that our scientific practice is not autonomous or functioning correctly, and that therefore the powerful term ‘scientifically proven’ does not hold the significance that people would like to claim it has. If a scientific field is dominated by conflicts, like the science about modern agriculture is, these conflicts have to be understood as the manifestations of a power struggle within the scientific field; since the dominant position on scientific truth is strongly influenced by large companies such as Monsanto, too many conflicts exist for a truly scientific dialogue to take place.
The process of public tribunals
The Monsanto Tribunal is not in the position to deliver a formal judgement and therefore is not a formal court. It is easy for pessimists and sceptics to declare public tribunals a sham. However, these kinds of sentiments do not take into account or understand that such a tribunal has a longer-term aim. An impatient and dismissive attitude will fail to grasp the significance and historical possibilities of such tribunals. The judges can and will give well-founded legal advice on both the violation of human rights by Monsanto and the question of ecocide. This could be an important step in the development of international law.
To declare a public tribunal phony, as was suggested by Monsanto, is to accept that the public has no place in the juridical system. People’s tribunals and popular courts have the important job of making liable problems known to the courts and highlighting the courts’ legal duty to take up these issues in official rulings. Popular tribunals are not some strange fringe activity, but part of a democratised juridical system. To democratise the juridical process it is necessary to create new legal instruments; ways to make it more accessible and easier for the public to be part of the juridical process have to be put in place.
The official juridical institutions in most cases lack the possibilities and legislation to act against the ruling (economic) powers. Precisely because public tribunals move outside of the official juridical framework, and therefore are not hindered by the ruling ideologies, they propose new ways that might lead to indictments that go against short term economic interests but fit very well into the general idea of social and environmental justice. Opponents of the tribunal might disparagingly deny the impact of a public tribunal like the Monsanto Tribunal, because they know very well that it threatens the current status quo in agriculture, in the field of scientific information surrounding it, and the way the juridical system holds companies accountable for their effects in the world. To gain democratic ground within the juridical field will be one of the most powerful steps to secure a people’s rule.
The company itself decided not to defend their practices and stated that they considered the tribunal a farce. This was no surprise of course, since it is in their self-interest to decline any recognition of the impacts of their products as crimes against humanity. Corporate accountability is not a new thing in international law, but although it theoretically exists in international law, it has been proven very hard to put into practice by those who suffer from the acts of transnational companies. Now that the International Court of Justice (internal law) has recently decided to include crimes against environment in their scope and opened the possibility of treating companies as legal persons and therefore holding them accountable as rational actors, the possibility of setting a legal precedent wherein corporations such as Monsanto will be held accountable for their acts is gathering momentum. The creation of a legal framework wherein corporation will be legally held liable for misbehaviour is showing up on the horizon. The creation of a binding treaty within the United Nations, a process in which many organisations have been involved for a long time, could be another very important step in this direction.
Collaboration with juridical experts
In the French journal Le Monde, the Tribunal’s presiding Judge Tulkens (former Vice-President of the European Court of Human Rights) clarified the procedure.
“The Monsanto Tribunal is a way for civil society to take the initiative to give a voice to witnesses, to enable the public to understand the impacts of Monsanto’s activities, and to help advance international law by offering new ideas, such as the responsibilities of business regarding human rights, or new concepts. This is a difficult but essential education.
The Russell Tribunal (also known as the International War Crimes Tribunal), made in the context of the Vietnam War in 1966, was also a tribunal of opinion. It is important to refer to this history. Our opinion will be sent to Monsanto and the United Nations. From this legal opinion, other jurisdictions can be involved and other judges will step in.”
On the question of ecocide Judge Tulkens continues: “This offence still does not exist and in order for that to happen, it first has to be precisely defined. Genocide is a crime against humanity aimed at the partial or total destruction of a group of persons because of their national, ethnic, racial, or religious characteristics. Ecocide would be a “genocide” committed against the environment; environmental damage that would alter in a serious and long-lasting way the ecosystems upon which human life depends. The International Criminal Court here in The Hague has just decided, on 15 September, to include concerns about the environment in its field of investigation, so that is evolving. The issues of access to water and to a healthy diet are old. They are not new issues generated in the minds of angry activists. And these issues, such as the right to a healthy environment, are likely to become increasingly important with climate change. It is our duty to put the legal tools in place to deal with these problems. The Monsanto Tribunal is a step and a tool in this process.”
To end the era of exploitation, poisoning of and chemical warfare against nature we need instruments to hold corporations accountable. Steps like a binding treaty within the United Nations framework and the development of international law are the opposite of free trade agreements that guarantee impunity for corporations by giving them the option to establish their own arbitration courts and thereby create their own private justice practice. To secure a healthy and durable future, civil society needs to collaborate with the juridical system, and, importantly, the juridical experts have to interact with civil society. To protect the soil, biodiversity, and overall health in Europe and the rest of our globe, it would be a good idea for Europeans to support processes to hold corporations accountable. Monsanto and their likes need to know that the age of corporate impunity is coming to an end.
All testimonies in the hearings of the Monsanto Tribunal can be viewed online in six languages on www.vimeo.com/MonsantoTribunal