Harmen G. van der Wilt, Climate Change as the Ultimate Form of Ecocide: Are Producers and Consumers ‘Partners in Crime’?, SSRN (January 31, 2023)

Against the backdrop of an elaborate proposal of an Independent Expert Panel to insert ecocide as a fifth international crime under the jurisdiction of the International Criminal Court, this article addresses the question who should be held criminally responsible for this crime. To be more precise: is it fair to only prosecute representatives of large business corporations and state officials, while leaving consumers of polluting products off the hook? In addressing the issue, one is bound to take into consideration two arguments that pull in contrary directions. On the one hand, one must admit that large entities have the (organizational) power and capacities to cause widespread and disastrous damage to the environment, while private consumers are fragmented and their causal contributions are futile. On the other hand, however, one cannot deny that the most serious, if not apocalyptic, forms of ecocide, like climate change through greenhouse emissions, are caused by common action of producers and consumers, in accordance with the economic laws of supply and demand. While it cannot be denied that there is a power gap between producers and consumers, both in terms of knowledge of the pernicious effects of carbon emissions and capacity to prevent global cataclysm, that difference is narrowed by the notion of mutual interdependence, inherent to the market mechanism. The conclusion is therefore that exclusive criminal responsibility of representatives of large corporations or state officials would not be justified.