Since it was first used to describe the environmental impacts of Agent Orange in the Vietnam War, the term “ecocide” has been applied to a variety of environmental harms perpetrated around the world. These have ranged from acts of war, such as Russia’s attacks on Ukrainian nuclear facilities in the past week, to acts of business, such as oil extraction in Canada and mining in Venezuela. Some have also applied the term to the ordinary acts that form part of our everyday lives, such as the release of microplastics into the oceans, the emission of greenhouse gases, and the disproportionate use of pesticides.
The campaign to introduce a new international crime of “ecocide” at the International Criminal Court (ICC) is long-standing but has received increased support over the last couple of years. One of the most notable developments has been the creation of a new ecocide definition by an Independent Expert Panel convened by the Stop Ecocide Foundation. Their hope is that this new definition presents a workable crime capable of being adopted into the ICC’s mandate.
The increased support for introducing a crime of ecocide can be understood as part of a broader consciousness raising about the severity of the climate, pollution, and biodiversity crises facing our planet. However, it is worth considering the extent to which criminalization is likely to further environmental and climate justice goals. This article introduces the new definition, considers the possible benefits and challenges associated with introducing it as a new crime at the ICC, and offers some thoughts on the role of ecocide in pursuing environmental and climate justice.
The Campaign to Criminalize Ecocide
There is a long history of discussions surrounding its criminalization, with the first attempts to introduce a new crime dating to as early as 1973. While early attempts to include a specific crime against the environment in the International Criminal Court’s Rome Statute failed, repeated attempts have been made to add a new crime.
A particularly vocal voice in favor of criminalizing ecocide was that of Polly Higgins, a barrister, environmental lobbyist, and co-founder of the Stop Ecocide campaign. In 2010 Higgins submitted a new proposal for a crime of ecocide to the ILC. Higgins defined ecocide as constituting: “The extensive destruction, damage to 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.”
Since its launch in June 2021, the Stop Ecocide Foundation Independent Expert Panel’s new formulation has quickly gained political traction and has been endorsed by, for example, the Belgian parliament, the United Kingdom’s Labour Party, and the world’s first Global Citizen’s Assembly. The Stop Ecocide expert panel defines ecocide as: “Unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.”
This wording is purposefully adopted and adapted from existing international crimes, including crimes against humanity and war crimes. In particular, the proposed crime expands and builds on a war crime already prohibited in the ICC’s statute—prohibiting “widespread, long-term and severe damage” to the environment—while applying it to crimes perpetrated outside the context of conflict.
Possible Benefits of Criminalizing Ecocide
The most obvious benefit of a new crime of “ecocide” is the expansion of international accountability for environmental harms. The proposed crime extends the possibility of prosecutions for environmental damage beyond the context of war, theoretically enabling individuals to be prosecuted for harms such as ocean damage through oil spills, deforestation, land and oil contamination, and air pollution.
The International Criminal Court is a court premised on individual criminal liability, meaning that it would be individuals at the top of industries, financial institutions, and government who would face charges, rather than organizations or states. Proponents of the new crime often refer to the deterrent effect that introducing a new crime will have for business owners and financiers reluctant to be classed in the same category as war criminals.
Prosecutions at the ICC would also open up opportunities for reparations to be awarded to the victims of ecocide. As I have explored elsewhere, the ICC’s reparation mandate is an underexplored aspect of the ecocide campaign. However, it is potentially an important part of the picture. Following successful prosecutions, victims could theoretically have access to compensation for the loss of natural resources, reforestation and other environmental restoration projects, and symbolic measures which recognize what had been lost.
While the ICC will be constrained by the limits on its jurisdiction, it is also worth noting the possibility of accountability that extends beyond the ICC. Under the norm of universal jurisdiction, state parties to the ICC who ratify the crime of ecocide might choose to pursue prosecutions in their own legal systems. This potentially expands accountability, as universal jurisdiction allows for the prosecution of individuals regardless of where they are from or where they perpetrated the crime.
Finally, the criminalization of ecocide may play an important symbolic role, signaling that the international community considers the destruction of the environment to be one of the “most serious crimes of concern.” In doing so, they would be contributing to a growing consciousness of the need to prevent and meaningfully address the harms perpetrated against the natural world.
The Challenges Associated with Criminalizing Ecocide
The campaign to criminalize ecocide has undoubtedly picked up steam over the past few years. However, campaigners have a number of hurdles to pass before they see ecocide added to the ICC’s statute.
First, an amendment will need to be proposed by an ICC state party in accordance with Article 121 of the Rome Statute. Any such proposal will need to be approved for negotiations by a majority of those voting. The proposed amendment would then go through potentially several rounds of negotiation before being returned to the state parties for a further vote. The amendment would require at least two-thirds of the state parties to vote in favor, demonstrating the political buy-in needed for the amendment to pass.
If the amendment was approved, states could nonetheless choose not to ratify it, placing limits on the ICC’s ability to exercise jurisdiction over their territories and nationals. States who are not party to the Rome Statute would be similarly exempted from new crimes, further limiting the ecocide’s scope.
In the wake of the Independent Expert Panel’s launch of their new definition, several international criminal law academics offered critiques of its formulation and scope. One notable critique was that the requirement that the perpetrator has knowledge that their attack will cause damage to the environment is likely to pose a significant challenge to any prosecutor seeking to prove liability.
A related concern was that the Panel’s criminalization of “wanton acts” introduced a subjective “cost-benefit” analysis, in which prosecutors would need to prove that the ecocidal act was clearly excessive in relation to the social and economic benefits anticipated. Another broader concern was that the ICC’s lack of jurisdiction over legal persons (i.e., corporations) was likely to limit the impact of a new crime.
As such, if a new crime of ecocide was introduced, challenges of implementation would also arise. Indeed, Professor Kevin Heller’s attempts to apply the new crime to a hypothetical scenario demonstrated the range of complexities that arise when trying to use the proposed crime in practice.
These complexities would arise against the backdrop of a Court with limited resources. Investigations and case selections are also inevitably shaped by “operational selectivity,” meaning practicalities such as access to evidence and state cooperation. This is a functional reality—in nearly 20 years, there have been 30 cases processed at the ICC. Tasked with prosecuting the most serious crimes of concern to the international community, the Court seems to focus on incidences of violence that are considered particularly extreme and acute, rather than incidences of structural and “slow violence.”
As environmental harms can be slow to materialize, and ecocide is likely to throw up a range of challenges surrounding proving causality and responsibility, gathering evidence, and finding relevant experts, it may be that the ICC would choose to prioritize other forms of violence even once a crime was introduced.
Criminalization as a Method of Pursuing Environmental and Climate Justice
Advocates of a new crime of ecocide have highlighted its capacity to further environmental justice. The introduction of a criminal offense has been described as evidence that the international community is “getting serious about environmental justice,” or somewhat more modestly as “one tool available in the fight against environmental injustice.” Others have acknowledged its limitations but nonetheless consider it a “significant step toward stemming ecological and biological breakdown and establishing interspecies justice.”
Among the crime’s most vocal advocates are states that are facing the onslaught of the climate crisis’ impacts, including small island states such as the Republic of Vanuatu and the Republic of Maldives, both of whom have linked criminalization to climate change and the need for climate justice.
While a new crime of ecocide may offer avenues of accountability and repair, it is important to be cautious about its ability to further these broader goals. For one, a new crime would not have retroactive applicability. As others have argued, this may lead to many of the main perpetrators of the climate catastrophe escaping accountability. In this context, it is worth noting that the Court has also faced accusations of political selectivity and racial selectivity.
The former accusation is most often made in relation to the role of the UN Security Council, which can both refer to the cases and ask for cases to be deferred. The latter is made in response to the fact that to date, the ICC has exclusively prosecuted perpetrators from the African continent. Given the particular political economy of environmental destruction, it is arguable that exclusion of the Global North from accountability would significantly limit the impact of a crime of ecocide. Indeed, some have argued that it is worth considering whether pursuing ecocide as a response to climate change may risk reasserting or replicating structural inequalities and global injustices.
The introduction of ecocide could play an important role in increasing accountability and access to reparations for environmental destruction. However, is important to acknowledge the limitations of criminalization as a means of addressing environmental destruction. There are challenges associated with both introducing ecocide as a crime and prosecuting it once it is introduced. As others have noted, law alone cannot solve the biggest problems we face. While accountability and repair may play important parts in the pursuit of environmental and climate justice, far larger systematic changes will be needed to realize those goals.
Yet, getting the ICC involved in the fight for ecological justice could allow affected communities, governments, and the international community to treat ecocide as the life-altering, extraordinarily destructive crime it is. Faced with a climate crisis and an age of mass extinction, we must use all of the tools in our arsenal—including law—to achieve large systemic change to protect and repair the natural world.
Rachel Killean is Senior Lecturer and Director of Graduate Studies in the School of Law at Queen’s University Belfast.