Ecocide: The Long-Proposed Environmental Crime

by Olivia Draycott

What is Ecocide and why is it important?

The ecocide concept emerged in the 1970s after the devastating effects of Agent Orange and other chemical herbicides on populations in Vietnam, Cambodia, and Laos during the Vietnam War  [1]. Since then, the definition evolved into specific criteria. An independent expert panel of lawyers derived from the Stop Ecocide Foundation defined the harm known as ecocide [2] as “unlawful or wanton activities done with knowledge that those acts have a strong possibility of causing severe and either widespread or long-term environmental damage” [2]. Polly Higgins also proposed a legal definition for ecocide in 2010 [3], similarly by Vanuatu and the Maldives in 2019 during the assembly of state parties when there was a request to ratify ecocide under the Rome Treaty. The Stop Ecocide Foundation definition of ecocide is particularly significant, because it combines the collective intent to cause environmental harm and a failure to avoid it under one definition [4]. 

The International Criminal Court (ICC) has the power to prosecute people (but not nations or organisations) for four types of crimes: genocide, crimes against humanity, war crimes, and aggression [5]. The Rome Statute defines the structure and areas of jurisdiction of the International Criminal Court (ICC), which is critical for pursuing prosecutions for significant international damages perpetrated by people whose states have ratified, signed, or maintained the agreement [6]. These crimes are outlined in Articles 6, 7, 8, and 8 of the Rome Statute. Despite the fact that ecocide devastates the ecosystems on which people rely, it is not named or mentioned in the Rome Statute [7]. Nonetheless, as of June 2021, there is a formulated legal definition of ecocide as a prospective fifth offence under the Rome Statute of the International Criminal Court because of the efforts of the Stop Ecocide collection of lawyers [8].

If ecocide is recognised as a fifth category of international crime under the Rome Statute, prosecution for environmental harms would take place on a larger scale at the ICC. By incorporating ecocide into the Rome Statute, governments that have signed up to the statute must approve ecocide as a crime on an international level, or risk violating the accords outlined in the Rome Treaty itself [9]. The internationalisation of ecocide facilitates its adoption into domestic legislation and therefore into the nation’s criminal justice system, paving the way for investigators to follow when confronted with ecocide perpetrators [10].

Why has the definition of  ecocide as a potential fifth Rome Statute crime caused turbulence internationally?

Kai Ambos is a legal professional and critic of the new definition’s effectiveness, whether adding a new crime will better protect the environment than “the existing international core crimes that have an environmental component and on which the draft definition of ecocide partly draws” [11]. Ambos specifically refers to Article 8(2)(b)(iv) of the Rome Statute, which defines a war crime as “[i]ntentionally launching an assault with the knowledge that such attack will inflict […] widespread, long-term, and serious harm to the natural environment,”[5] a definition that is strikingly similar to Stop Ecocide’s [2].

Additional concerns about the success of incorporating ecocide into the Rome Treaty are related to criminal culpability within the ICC [12]. This is because the ICC has jurisdiction over natural people (Article 25), and not businesses or nations [6]. Thus, responsibility for an act amounting to ecocide must be attributed to an individual or individuals. A company cannot appear in court because it is a legal entity rather than a natural person. As such, corporations cannot be brought under scrutiny for violating the Rome Agreement nor will face the repercussions of it internationally, since corporations are not people [12].

Jojo Mehta of Stop Ecocide International responded positively to the proposal, suggesting that exposing ecocide as such a high-profiled crime is a step toward changing ideas and opinions about environmental safety [13]. “If something is a crime, we place it below a moral red line […] right now, you can go to the government and get a permit to frack, mine, or drill for oil, but you can’t just get a permit to kill people, because it’s criminal [whereas] once you set that parameter in place, you shift the cultural mindset as well as the legal reality,” she explained [13]. This shows that while many believe it will have a huge normative influence that is now absent, we cannot expect a new category of international crime to solve all of our environmental problems or even to avert all ecocide [14]. As such, defining and enforcing ecocide as a fifth harm is vital, for achieving the goals of  the Paris Climate Accords and the Sustainable Development Goals. 

Despite questions regarding its effectiveness and suitability as a recognised international harm under the Rome Treaty, the future of ecocide as an internationally recognised crime looks positive. Ecocide is the environmental zeitgeist and tied closely to climate change and biodiversity loss. Overall, the subject is one that is still being developed, and as seen, opinions on its likelihood of success vary. Nevertheless, the Rome Treaty is being discussed, and revision is an option for the future for the benefit of humanity against ecocide.

Reference List

[1] Gray, Mark Allan (1995–1996). “The International Crime of Ecocide”. California Western International Law Journal. 26: 215.
[2] Legal definition of ecocide drafted by Independent Expert Panel — Stop Ecocide International (2023). Available at: https://www.stopecocide.earth/legal-definition (Accessed: 9 January 2023).
[3] Polly Higgins et al, ‘Protecting the Planet: A Proposal for a Law of Ecocide’ (2013) 59 Crime, Law and Social Change 251
[4] Alex Whiting, Former International Criminal Court prosecutions coordinator; Professor, Harvard Law School (US), Ecocide International (2023). Available at: https://www.stopecocide.earth/legal-definition (Accessed: 9 January 2023).
[5] Rome Statute of the International Criminal Court 1998
[6] United Nations (1999), Rome Statute of the International Criminal Court 1998
[7] Valérie Cabanes, International jurist and human rights expert (France), Ecocide International (2023) Available at: https://www.stopecocide.earth/legal-definition (Accessed: 9 January 2023).
[8]Mackintos Kate, and Oldring Lisa, ‘Watch This Space: Momentum Toward an International Crime of Ecocide’, (JustSecurity 2022). Avaulable at: https://www.justsecurity.org/84367/watch-this-space-momentum-toward-an-international-crime-of-ecocide/ (Accessed 9 January 2023)
[9] Josie Fischels, ‘How 165 Words Could Make Mass Environmental Destruction An International Crime’ (INP 2021). Available at: https://www.npr.org/2021/06/27/1010402568/ecocide-environment-destruction-international-crime-criminal-court (Accessed: 9 Janurary 2023)
[10] Rajeev Venkat, ‘Ecocide: Can The International Criminal Court Hold Polluters Accountable For Mass Environmental Destruction?’, (Vermont Journal of Envrionmental Law  Vol.5(23) ) Available at:https://vjel.vermontlaw.edu/-5-vol-23 (Accessed: 9 January 2023)
[11] Kai Ambos, ‘Protecting the Environment through International Criminal Law?’, (EJIL:Talk! 2021). Available at: https://www.ejiltalk.org/protecting-the-environment-through-international-criminal-law/ (Accessed: 9 January 2023)
[12] Kevin Jon Heller, ‘The Crime of Ecocide in Action’ (OpinioJuris 2021) Available at:http://opiniojuris.org/2021/06/28/the-crime-of-ecocide-in-action/ (Accessed: 9 January 2021)
[13] Jojo Mehta as cited by Sophie Yeo, “Ecocide: Should Killing Nature Be A Crime?”. (Bbc.Com 2020). Available at: https://www.bbc.com/future/article/20201105-what-is-ecocide (Accessed: 10 Jan 2023)[14] Jojo Mehta, ‘Ecocide as an international crime’, This is One Degree (UNA-UK 2021) Available at: https://una.org.uk/magazine/2021-1/ecocide-international-crime (Accessed: 10 January 2023)