Lynn Berat, Defending the Right to a Healthy Environment: Toward a Crime of Geocide in International Law, 11 B.U. Int’l L. J. 327–48 (1993
This article advocates for the creation of a crime of geocide, defined as “the intentional destruction, in whole or in part, of any of portion of the global ecosystem, via killing members of a species; causing serious bodily or mental harm to members of the species; inflicting on the species conditions of life that bring about its physical destruction in whole or in part; and imposing measures that prevent births within the group or lead to birth defects.” Berat calls on states to draft a geocide convention to clarify the scope and contents of the crime, taking into account questions of liability and potential jurisdictional issues. The ultimate goals of this advocacy are the adoption of a geocide convention and the creation of an international environmental tribunal, as Berat warns, “[t]o do less will jeopardize the future of life on earth.”
Mark Allan Gray, The International Crime of Ecocide, 26(2) California W. Int’l L. J., 215–71 (1996)
In this article, Gray asserts that states, and arguably individuals and organizations, “breach a duty of care owed to humanity in general and therefore commit an international delict” of “ecocide” when they cause or allow harm to the natural environment on a massive scale. Gray identifies ecocide “on the basis of the deliberate or negligent violation of key state and human rights and according to the following criteria: (1) serious, and extensive or lasting, ecological damage, (2) international consequences, and (3) waste.” Gray explains that with this definition, ecocide, which may be perceived by some as radical, is actually derivable from international legal principles. He argues that ecocide’s “parameters allow for expansion and refinement as environmental awareness engenders further international consensus and legal development.”
Karen Hulme, Armed Conflict, Wanton Ecological Devastation and Scorched Earth Policies: How the 1990-91 Gulf Conflict Revealed the Inadequacies of the Current Laws to Ensure Effective Protection and Preservation of the Natural Environment 2(1) J. Conflict & Security L. 45, 61. (1997)
Documents of the 48th session,  2(1) Y.B. Int’l L. Comm’n 15–27, U.N. Doc. A/CN.4/SER.A/1996/Add.1
This paper was prepared by ILC member Prof. Christian Tomuschat “to facilitate the task of the working group” on whether causing damage to the environment as Article 26 (wilful and severe damage to the environment) should be included in the draft Code of Crimes against the Peace and Security of Mankind. The first half of the paper provides a brief historical overview since the Nuremberg trial, including the comments made by some states on the draft articles. The second half of the paper discusses the constituent elements of a crime against the environment and the rationale behind it. The paper concludes with examples, some of which clarify the situations that would trigger the draft Code and others, illustrate its limits. The burning of fossil fuel, for example, does not fall within the scope of the draft Code because the environmental harm is “an infinite multitude of separate actions caus[ing] damage not individually, but conjunctively.” On the other hand, atmospheric testing of nuclear bombs or grenades could fall within the scope of crimes against the environment, provided all other relevant requirements are met, though in 1996 there was no scientific evidence to show atmospheric testing entails widespread, long-term and severe damage.
Environmental Protection and the Law of War: A Fifth Geneva Convention on the Protection of the Environment in Time of Armed Conflict? (Glen Plant ed., 1992)
Peter Sharp, Note, Prospects for Environmental Liability in the International Criminal Court. 18 Va. Envtl. L.J. 217–43 (1999)
In this Note, Peter Sharp argues that “a meaningful vindication of [the Rome Statute’s] core crimes must include environmental dimensions”—by criminalizing “intentional acts of environmental degradation which cause the injury or death of either individuals or populations.” He does so by first discussing the International Criminal Court’s jurisdiction, then demonstrating the expanding nexus between international human rights and environmental protection. Sharp next argues that the gravest environmental crimes are within the scope of core crimes defined in the Rome Statute, by crystallizing that they are “inherently inseverable.”
Ludwik A. Teclaff, Beyond Restoration—The Case of Ecocide, 34(4) Nat. Resources J. 933–56 (1994)
Professor Teclaff’s article demonstrates that despite ecocide’s long history, its impact on international law has been small until the second half of the 20th century, when the international community started to respond. Characterizing the activities constituting modern ecocide as “the sheer scale of the damage done to the environment,” he contends that ecocide may justifiably be extended to “peacetime activities that destroy or damage ecosystems on a massive scale.” After reviewing states’ responses in the 20th century, including prohibitions, penalties, compensation, as well as state liability, Professor Teclaff suggests that “where there exists a real threat of ecocide on a global scale, the only adequate response may be prohibition.” Anticipating opposition from a number of states should ecocide be treated as an international crime, he considers a regime under which ecocide is a “supertort” or delict, which would still be an offense erga omnes. He envisages that all states should have standing to bring cases before “appropriate tribunals,” which at the time of writing was being discussed as what would become the ICC or a “special environmental tribunal.” Professor Teclaff adds that international organizations and non-governmental organizations should also have standing to sue to make prosecution more effective. On the other hand, he believes that if ecocide is accepted as an international environmental crime, this would expedite the process of strengthening enforcement. Either way, “an effective international regime is an essential prerequisite to a world free of the fear of ecocide.”
Christian Tomuschat, Crimes Against the Environment, 26(6) Envtl. Pol’y & L. 242–43 (1996)
This article traces the International Law Commission’s drafting history of codifying “crimes against the environment.” Professor Tomuschat, member of the ILC, notes that causing harm to the environment was initially set forth as an autonomous crime (Article 26), but that such “new” crimes were not palatable to some states and subsequently dropped. Professor Tomuschat then critiques the draft text of what would evolve into article 8(2)(b)(iv) under the Rome Statute, that the “double intent” requirement (to cause damage to the environment so as to prejudice the health or survival of a population) demands almost impossible conditions of applicability.
Mishkat Al Moumin, Mesopotamian Marshlands: An Ecocide Case, 20 Geo. Int’l Envtl. L. Rev. 499–519 (2008)
In this essay, Al Moumin exemplifies the destruction of Mesopotamian marshlands by Saddam Hussein’s regime to kill the indigenous Marsh Arabs as a case of ecocide. She defines ecocide as “taking a deliberate action [with the intent] to kill a group of people based on their race, religion, or culture by destroying the ecosystem on which they depend.” Writing in the late 2000s, Al Moumin discusses the economic, political and environmental impacts of the drainage channel, the “Third River” project, that Hussein’s regime completed in 1992. She shows that Sunni-ruling Iraq’s drying of the Marshlands deprived the largely Shiite Marsh Arabs, who had been there for more than 5,000 years fishing and herding water buffalo, “of their homes and livelihood, damaged the ecosystem, and destroyed the Marsh Arab culture.” This drove nearly 40,000 Marsh Arabs to refugee camps in Iran, while displacing over 100,000 in Iraq. Al Moumin concludes by recommending ways to effectively rehabilitate the Marshlands, including direct participation of Marsh Arabs in the process.
Byung-Sun Cho, Emergence of an International Environmental Criminal Law?, 19(1) UCLA J. Envtl. L. & Pol’y 11–47 (2000)
This article explores possibilities for developing international environmental criminal law as an enforcement system, citing the jurisdictional challenge of territoriality that limits domestic criminal laws’ effectiveness, as well as the deficiency of environmental treaties, under which state parties must develop domestic legislation to prohibit, prevent, punish and/or prosecute international environmental crimes, possible only before national courts. Due to the discretion they enjoy under these treaties, state parties’ penal legislations vary in defining and proving environmental crimes, as well as whether to sanction corporations. To address the resulting difficulty of uniformly applying such treaties, Cho argues for harmonizing domestic environmental laws by standardizing punishable behavior. As a regional example, the Council of Europe’s Convention on the Protection of the Environment through Criminal Law harmonizes substantive criminal law, which Cho calls “a modern instrument for international cooperation in the area of transboundary environmental crimes.”
The article finally discusses attempts to codify international environmental crimes, including the International Law Commission’s Draft Articles on State Responsibility and the Draft Code on Crimes Against Peace and Security of Mankind. Cho concludes by envisaging the future of international environmental criminal law based on a model of international human rights law. He argues that “a fundamental human right to a healthy environment should be recognized when the protection of the environment is neglected by a state to such an extent that the individuals who live in the affected region are seriously oppressed.”
Mark A. Drumbl, Waging War against the World: The Need to Move from War Crimes to Environmental Crimes, in The Environmental Consequences of War: Legal, Economic, and Scientific Perspectives 620, 636–46 (Jay E. Austin & Carl E. Bruch eds., 2000)
Published in 2000, this book chapter discusses the challenge of developing a mechanism to ensure state compliance with standards of the environmental consequences of war, including deterring violations and attaching responsibility for violations. Drumbl specifically examines the potential of the ICC to provide this mechanism. He predicts that the ICC “may not be particularly well-suited to sanction environmentally destructive behavior.” He argues that ecocide should also apply in times of peace, and that an international environmental court should prosecute environmental crimes, including the trade of endangered species, hazardous wastes, ozone-depleting substances, as well as environmental destruction for economic development. While Drumbl encourages the development of an ecocide convention that takes into account all these types of harms, he concludes: “It remains an open question whether such conduct ought to be conjunctively sanctioned by an international criminal court. If so, an entente of understanding will have to be developed between the two courts to avoid situations of double jeopardy and overlapping jurisdiction.”
Steven Freeland, “Crimes Against the Environment—A Role for the International Criminal Court?”, in Droit de l’environnement dans le Pacifique Problematiques et Perspectives Croisées [Environmental Law in the Pacific: International and Comparative Perspectives], 335–72 (Alberto Costi & Yves-Louis Sage eds., 2005)
This chapter explores “whether, and in what circumstances, actions designed to deliberately destroy the environment may fall within the jurisdiction of the ICC” vis-à-vis the Rome Statute. Writing in early-mid 2000s and looking forward to the 2009 Review Conference, Freeland argues for the creation of a discrete category for international environmental crimes—“crimes against the environment”—within the Court’s competence. He proposes the following working definition of the fifth crime:
A deliberate action committed with intent to cause significant harm to the environment, including ecological, biological and natural resource systems, in order to promote a particular military, strategic, political or other aim, and which does in fact cause such damage.
Despite political resistance and the challenge of formulating the scope of the crime, Freeland prefers this mode of accountability to the alternative approach.
The alternative would be interpreting existing crimes in the Rome Statute to apply to acts of deliberate, significant environmental destruction, in other words, treating such acts as themselves constituting and thus prosecutable as the four core crimes already within the ICC’s mandate. While this is not ideal, Freeland does acknowledge it is “a more realistic possibility.” Considering that environmental crimes could be prosecuted as crimes against humanity before the ICC, Freeland posits that such prosecution “may well be strategically advantageous and symbolically important,” given the greater gravity accorded to crimes against humanity than war crimes.
Freeland concludes that whether prosecution of environmental crimes, via either option, will actually happen before the ICC “remains to be seen and will, at least in the short-medium term, probably be dictated as much by political as legal considerations.”
Jessica C. Lawrence & Kevin Jon Heller, The First Ecocentric Environmental War Crime: The Limits of Article 8(2)(b)(iv) of the Rome Statute, 20(1) Geo. Int’l Envtl. L. Rev. 72 (2007)
More optimistic than Drumbl’s chapter annotated above, this article identifies the limitations of Article 8(2)(b)(iv) of the Rome Statute and suggests some ways in which those limitations could be addressed. Lawrence and Heller highlight five issues they take with the structure of the provision:
- Vagueness in defining the actus reus;
- Proportionality standard being heavily weighed against a finding of disproportionate attack;
- Subjectivity of mens rea for the purposes of determining if the perpetrator “knew” about the attack being disproportionate;
- Lack of application to internal armed conflicts; and,
- The possibility that transboundary harm and prosecutions thereof may threaten ICC’s voluntary jurisdiction principle.
Drawing on the Geneva Convention, IMT Charter, and decisions of the ICC, Lawrence and Heller analyze each issue. They then explore potential solutions of interpretation, demonstrating that they are relatively simple, though not politically easy.
Tara Weinstein, Note, Prosecuting Attacks That Destroy the Environment: Environmental Crimes or Humanitarian Atrocities? 17(4) Geo. Int’l Envtl. L. Rev 697, 720–22 (2005)
This section of the note questions the extent to which the ICC or ad hoc criminal tribunals could adequately respond to environmental harm and the value of attaching individual criminal responsibility for environmental damage under the current international criminal legal system. Weinstein provides an overview of the existing conceptions of environment and geocide, environmental crimes against humanity, environmental war crimes, and aggression and the environment. She argues that there is “considerable scope” for amending the existing core international crimes of the Rome Statute to include explicit prohibitions on environmental damage, focusing on war crimes as an “illustrative case study.” In amending the Rome Statute to carve out environmental war crimes, Weinstein advises that the ICC should lower the thresholds of harm in the existing war crimes provision and make a provision that extends to situations of non-international armed conflict.
Antonio Abrami, Proposal of Two Historical Reforms: An International Environmental Criminal Court (IECC), A European Environmental Criminal Court (EECC), Int’l Acad. Envtl. Scis. (July 7, 2010)
This document outlines a presentation by Prof. Antonio Abrami and Mr. Freddy Grunert from the International Academy of Environmental Sciences to the Environment, Public Health and Food Safety (“ENVI”) Committee of the European Union (“EU”). In this ENVI Committee hearing, the presenters propose the creation of a European Environmental Criminal Court (“EECC”) alongside an International Environmental Criminal Court (“IECC”) to preserve the environment. The presenters first recount environmental catastrophes, including the Deepwater Horizon spill, the Bhopal Gas Tragedy, and the Sevin Pesticide case, as events pointing to the growing need and urgency for an effective intervention to address the “environmental problem.”
In arguing for the EECC, the presenters offer that the principal strength of such a system is uniform application of environmental law across the EU. Whereas the EECC would serve as the competent institution to enforce EU laws, the IECC is envisaged as its “twin” court for cases where national criminal courts with jurisdiction over the matter has failed to intervene. Abrami and Grunert support amending the Rome Statute to enlarge the ICC’s jurisdiction, which would then operate as the IECC, over international “environmental disasters which are so henous [sic] that they qualify as a crime against humanity.” The presentation ends by calling for a European Parliament Resolution including these proposals and recommends the ENVI Committee to create a Scientific and Judiciary Commission to advise the elaboration of the EECC Statute.
Nabil Ahmed, Proof of Ecocide: Towards a Forensic Practice for the Proposed International Crime Against the Environment 1(2) Archaeological & Envtl Forensic Sci. 139–147 (2017)
This article argues for the evidentiary use of environmental forensic science, which “can work in an interdisciplinary fashion to help define ecocide [as a] crime,” from an international justice perspective. Ahmed opens with a background on ecocide, its history and definitional journey. He then discusses environmental evidence, focusing on remote sensing as both a human rights investigation tool and an environmental forensics technique. Due to satellite ability to detect landscape change virtually anywhere on Earth over time, remote sensing is “particularly well-suited to collect[ing] spatial evidence on the widespread, long term and severe nature of environmental damage.” He concludes by recommending civil society training on working with such environmental evidence for future prosecution contexts.
Helen Brady & David Re, Environmental and Cultural Heritage Crimes: The possibilities under the Rome Statute, in Justice Without Borders: Essays in Honour of Wolfgang Schomburg, 103–36 (Martin Böse et al. eds., 2018)
In this chapter, Brady and Re analogize the successful prosecutions for cultural property crimes at the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) to the potential to prosecute environmentally damaging or destructive crimes at the International Criminal Court (“ICC”). The authors explore how such crimes could be prosecuted under the Rome Statute as war crimes, crimes against humanity, genocide and aggression (once the ICC has jurisdiction over this crime). In so doing, the authors trace the historical landscape of international humanitarian law, international environmental law and customary international law as an incomplete regime to address environmental crimes during armed conflict, for which international criminal law offers jurisdiction.
Mark Byrne, Climate Crime: Can Responsibility for Climate Change Damage be Criminalised?, 4(3) CARBON & CLIMATE L. REV. 278–90 (2010)
In this article, Byrne explores the likelihood that responsibility for climate change damage will become a criminal offence internationally. He argues that the focus should be on state responsibility and outlines the difficulties that such a proposal will face. Byrne explores several possible approaches that could theoretically modify existing international law to criminalize climate change damage but cautions that a more immediate action is needed. He suggests imposing greater international civil responsibility on polluter states, or alternatively, criminalizing only those environmental crimes most suitable for criminal sanctions. Byrne concludes that the two main obstacles to imposing criminal liability on states is that firstly, the damage has largely already been done, and that secondly, criminalization of climate change damage would require “an unprecedented level of global cooperation over an extended period.” Writing in 2010, Byrne proposes we should “encourage change, but not expect this to translate into legally enforceable rights and responsibilities any time soon.”
Daniëlla Dam de Jong & James G. Stewart, Illicit Exploitation of Natural Resources, in The African Court of Justice and Human and Peoples’ Rights in Context, 590–618 (Charles C. Jalloh et al. eds., 2019)
In this chapter, Dam de Jong and Stewart discuss Illicit Exploitation of Natural Resources, a novel crime over which the African Court of Justice and Human and Peoples’ Rights will have jurisdiction, triable in its International Criminal Law Section. The Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (“Malabo Protocol”) criminalizes the “illicit exploitation of natural resources,” under which there are seven sub-offences incorporated in Article 28L Bis. Coupled with the new mandate of the African Court, which includes jurisdiction over corporations for the first time in an international treaty, the crime offers a distinct legal basis for prosecution of acts broader than the war crime of pillage. While this constitutes “an important innovation in international law,” the provision also comes with major limitations, including its broadness and vagueness. For example, the sole limiting criterion—the chapeau—is whether acts of illicit exploitation of natural resources are “of a serious nature affecting the stability of a state, region or the [African] Union.” However, the provision defines neither “exploitation” nor “natural resources.” Dam de Jong and Stewart offer a critical doctrinal overview of the seven sub-offences constituting Illicit Exploitation of Natural Resources, as well as some interpretive possibilities according with recent scholarship on resource predation. Notwithstanding the provision’s potential, the authors conclude that “the absence of any mention of objective or subjective elements capable of proving the offence transgress[es] basic principles in the criminal law” and recommend drafting of those elements.
Jessica Durney, Note, Crafting a Standard: Environmental Crimes as Crimes Against Humanity Under the International Criminal Court, 24(2) Hastings Envtl L. J. 413–430 (2018)
In this note, Durney presents a framework for prosecuting environmental harms as crimes against humanity at the ICC. Notwithstanding the court’s anthropocentric prosecutorial system, she argues for an interpretation of the Rome Statute that contemplates the use of environmental harm as a tool to violate human rights: “the Rome Statute creates the possibility to prosecute environmental destruction as a means of extermination or forcible deportation under crimes against humanity.” Durney applies her analysis to the “extermination” of the Rohingya in Myanmar and “deportation or forcible transfer” of civilians in Cambodia to demonstrate how the ICC could prosecute individuals for crimes against humanity. She also points to emerging trends in regional human rights tribunals—the African, European and Inter-American courts—of incorporating the environment to human rights to show the potential for the ICC’s jurisdiction to extend to environmental harms.
Steven Freeland, Addressing the Intentional Destruction of the Environment during Warfare under the Rome Statute of the International Criminal Court (2015).
Published in 2015, this book examines the international legal regime—treaty law, customary international law and the Rome Statute—relevant to the intentional destruction of the environment during warfare. Freeland argues that such acts should be recognised as constituting an international crime, subject to more effective rules giving rise to international criminal responsibility. He also suggests a framework within the Rome Statute as to how this might be achieved, including by proposing a definition for “crimes against the environment”: “employing, within the context of and associated with an armed conflict, a method or means of warfare with intent to cause widespread, long-term or severe damage to the natural environment.”
Anja Gauger et al., The Ecocide Project: ‘Ecocide is the Missing 5th Crime Against Peace’ Human Rts. Consortium (2013)
The first of a series, this research paper by the Human Rights Consortium at the University of London details the history of the Law of Ecocide from the 1970s, revealing that it was ultimately dropped from the ILC discussions in 1996. The authors trace the term “ecocide,” used as early as 1970 when Professor Arthur W. Galston proposed “a new international agreement to ban ecocide.” While “ecocide” was not included in the official outcome document, the term was popularized at the 1972 Stockholm Conference, where, “perhaps for the first time,” environmental issues enjoyed international attention. The authors then discuss various academic attempts to define “ecocide,” followed by Raphael Lemkin’s “cultural genocide,” which, were it included in the 1948 Convention on Genocide, could have criminalized ecocide as a method of genocide. The authors also analyze discussions at the ILC on the subject of a Law of Ecocide, including intent requirements and political arguments leading to the ultimate exclusion of Article 26 from the Draft Code of Crimes Against the Peace and Security of Mankind, which ultimately evolved into the Rome Statute. Noting that some states have criminalized ecocide in their national penal codes, the authors conclude by arguing for codifying ecocide as the fifth international crime against peace.
Anastacia Greene, The Campaign to Make Ecocide an International Crime: Quixotic Quest or Moral Imperative?, 30(3) Fordham Envtl. L. Rev. 1–48 (2019)
Focusing on the global campaign by lawyers and organizations to recognize ecocide as an international crime, Greene tests the feasibility of adding ecocide to the ICC’s mandate as a fifth crime against peace and explores whether the ICC is the right forum. After tracing the evolution of this campaign at the academic and UN levels, the history of ecocide and the procedural process to amend the Rome Statute, she considers the need for a law against ecocide based in moral and legal principles. On the other hand, Greene entertains criticisms, such as the lack of consensus around defining ecocide and problems establishing intent and causation. She concludes that “[t]he law of ecocide, if it is created, seems most appropriate for consideration by a specialized international court.” A new Ecocide Convention could create more flexible remedies that are not in the Rome Statute, such as a global trust or injunctions. To the question posed by the article’s title, Greene answers that the campaign efforts for ecocide are both quixotic quests and moral imperatives.
Polly Higgins et al., Protecting the planet: a proposal for a law of ecocide, 59 Crime, L. & Soc. Change 251–66 (2013)
In this essay, Polly Higgins, Damien Short and Nigel South argue for supporting a law of ecocide as the fifth crime against peace under the Rome Statute. To arrive at this conclusion, the authors first exemplify environmental crimes, consider the responses calling for more effective models of justice and law, then trace the evolution of proposing ecocide as an international crime. In 2010, Higgins proposed an amendment to the Rome Statute, defining ecocide as “the extensive damage to, destruction of 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.” Ultimately: “A law of Ecocide should recognise human-caused environmental damage and degradation (whether committed during or outside war-time), as a crime of strict liability (in other words, without intent).”
Sébastien Jodoin & Yolanda Saito, Crimes Against Future Generations: Harnessing the Potential of Individual Criminal Accountability for Global Sustainability, 7(2) McGill Int’l J. Sustainable Dev. L. & Pol’Y 115–55 (2017)
Drawing upon green criminology, Jodoin and Saito argue that severe environmental damage and serious violations of the International Covenant on Economic, Social, and Cultural Rights should be recognized as crimes under international law. They propose the novel concept of “crimes against future generations,” defined as “acts and conduct that have severe consequences on the long-term health, safety and means of survival of any identifiable group or collectivity of humans.” Such crimes would trigger individual criminal liability as violations of existing international legal obligations affecting sustainable development. The authors believe that the most feasible means of creating crimes against future generations is adopting a stand-alone convention, under which states have a duty to investigate, arrest and prosecute perpetrators and cooperate with other states in doing so.
Gerhard Kemp, Climate Change, Global Governance and International Criminal Justice, in CLIMATE CHANGE: INTERNATIONAL LAW AND GLOBAL GOVERNANCE, 711 (Oliver C. Ruppel et al. ed., 2013).
In this chapter Kemp argues that international criminal law can play a useful role in the global response to climate change. He explores some of the structural difficulties in international law that make the criminalization of climate change challenging. Despite the challenges presented by “the exclusion of corporate criminal liability, complementarity, and the lack of substantive jurisdiction over crimes against the environment,” Kemp argues that international criminal law, combined with a national and regional approach, can be a key piece of global governance.
Caitlin Lambert, Environmental Destruction in Ecuador: Crimes Against Humanity Under the Rome Statute? 30 Leiden J. Int’l L. 707–729 (2017)
In this article, Lambert discusses the ICC Prosecutor’s rejection of Lago Agrio victims’ request to investigate environmental destruction by Chevron in the Ecuadorian Amazon. In so doing, her article asks whether the ICC can prosecute peacetime environmental destruction committed by a non-state actor, like the alleged situation in Ecuador, as a crime against humanity under Article 7 of the Rome Statute. Lambert concludes that while such an environmental destruction that results in a humanitarian atrocity can qualify as a crime against humanity, the factual circumstances alleged in the Ecuadorian victims’ request did not amount to a crime against humanity under the Rome Statute.
Bronwyn Lay et al., Timely and Necessary: Ecocide Law as Urgent and Emerging, J. Juris. 431–52 (2015)
This paper explores an international law of ecocide, “the mass damage and destruction of the environment resulting from human action,” arguing that it is a legal imperative. Upon tracing ecocide’s definitional challenge, the authors present environmental law, human rights law, and torts law as developing bodies of law that support ecocide as an international crime against peace “by building upon doctrines that link humanity with the environment as trustees, stewards and equally, potential violators of the duty to protect.” The authors conclude that while “[t]he viability of ecocide being inserted into the Rome Statute, or alternatively being the impetus for an alternative forum such as an International Environment Court, is universally considered difficult” at the time of writing, “ecocide law is a legal necessity that surpasses considerations of political lethargy.”
Frédéric Mégret, The Problem of an International Criminal Law of the Environment, 36(2) Colum. J. Envtl. L. 195–257 (2011)
Drawing on the impetus for a new international crime of “ecocide,” Professor Mégret argues that developing an international criminal law of the environment is conceivable “as long as it is a carefully crafted response to the very specific set of international issues.” To explain why the process has been so protracted, he begins by discussing the limitations, citing states’ attachment to sovereignty, jurisdiction over environmental harms, regulatory challenges and determining criminal liability. Despite these difficulties, Prof. Mégret presents arguments in favor of international criminalization of environmental harms, anticipating their “greater international punishment . . . in the medium term.” Among the “most promising” arguments, he cites the environment’s “strong association with human rights,” also a driving force behind international criminal law’s growth. He envisions the development of an international environmental criminal law as complementing international environmental law while enriching international criminal law. Prof. Mégret concludes by noting a paradox of international criminal law’s rise: it is both expressive and constitutive of the international community’s beliefs. “[A]n international society that would criminalize grave attacks on the environment would fundamentally affirm itself as a society defined, at least in part, by its aspiration to protect its environment.”
Alessandra Mistura, Note, Is There Space for Environmental Crimes Under International Criminal Law? The Impact of the Office of the Prosecutor Policy Paper on Case Selection and Prioritization on the Current Legal Framework, 43(1) Colum. J. Envtl. L. 181–226 (2018)
This note seeks to clarify the status of “environmental crimes” under international law, prompted by the ICC Office of the Prosecutor (“OTP”)’s Policy Paper on Case Selection and Prioritization (2016).
While the Policy Paper expressed OTP’s intention to consider “the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land,” Mistura views the resulting media enthusiasm as “misplaced” for several reasons. In addition to the Court’s limited jurisdiction to prosecuting “core crimes” (genocide, war crimes, crimes against humanity and aggression), she cites the lack of a satisfactory definition for “environmental crimes” as a major roadblock to prosecuting them.
To demonstrate international law’s treatment of environmental crimes today, she walks through international criminal law and international environmental law doctrinally. Because conduct provided in international environmental law treaties are criminalized and prosecuted by the state parties, not by an international legal framework, environmental crimes better qualify as “transnational crimes.” “Only the conduct of environmental destruction and degradation within the description of the core crimes provided under the Rome Statute could be properly qualified as ‘environmental crimes under international law.’”
Mistura then considers if this “extremely limited” space that “environmental crimes” occupy in the Rome Statute could be enlarged by the Policy Paper’s impact or the case for “ecocide.” The Policy Paper, as internal guidelines governing the exercise of prosecutorial discretion in case selection and prioritization, does not alter the current framework. Attempts to make ecocide a fifth crime, on the other hand, enjoy “only theoretical importance” due to the uncertainty and disagreement surrounding this project. Mistura concludes, “[w]hile there is no doubt that, in the future, ecocide could be included” in “the most serious crimes of international concern,” “the time is not yet ripe for such change to occur.”
Office of the Prosecutor, Int’l Criminal Court (ICC), Policy paper on case selection and prioritisation (Sept. 15, 2016)
This policy paper explains that the Office of the Prosecutor will select cases for investigation and prosecution in light of the gravity of the crimes, the degree of responsibility of the alleged perpetrators and the potential charges. In assessing the gravity of the crimes, the Office is guided by the scale, nature, manner of commission, and impact of the crimes: “The impact of the crimes may be assessed in light of, inter alia, the increased vulnerability of victims, the terror subsequently instilled, or the social, economic and environmental damage inflicted on the affected communities. In this context, the Office will give particular consideration to prosecuting Rome Statute crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land.”
Luigi Prosperi & Jacopo Terrosi, Embracing the ‘Human Factor’: Is There New Impetus at the ICC for Conceiving and Prioritizing Intentional Environmental Harms as Crimes Against Humanity? 15(3) J. Int’l Crim. Justice 509–525 (2017)
In this article, Prosperi and Terrosi illustrate that certain environmental conduct, if committed intentionally and with the requisite impact on a civilian population, may well amount to crimes against humanity, including murder or extermination, forcible displacement, persecution and/or other inhumane acts. Considering three archetypes of such conduct as deforestation, contamination, and resource extraction, diversion or manipulation, authors use them as examples to test the utility of the analysis foreshadowed by the 2016 ICC Office of the Prosecutor’s policy paper (“crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land”).
Damien Short, Redefining Genocide: Settler Colonialism, Social Death and Ecocide (2016).
Damien Short explores genocide at the nexus of law and sociology, vis-à-vis the two definitions Raphael Lemkin, Polish lawyer who coined the term “genocide,” helped create. On one hand, Lemkin is considered “the founder of the United Nations Genocide Convention” (1948), which articulates a narrower legal—and the only internationally accepted—definition of genocide. On the other hand, “genocide” first appeared in Lemkin’s seminal book Axis Rule in Occupied Europe (1944), where he considers genocide sociologically. Short engages with this recently clarified concept of “cultural genocide,” which broadly refers to a “method of genocide which destroys a social group through the destruction of their culture.” In doing so, Short argues for the appreciation of culture and social death, contesting that understanding genocide as mass killing is sociologically inadequate. The legal definition of genocide does not account for “culturally destructive processes which do not involve direct physical killing or violence,” when this is the experience of indigenous peoples especially. Through case studies in Palestine, Sri Lanka, Australia and Canada, Short examines genocide in the context of settler colonialism. In the final case study of tar sands in Alberta, Canada, he brings us to a key contribution of this book, “ecocide as a method of genocide.” Drawing upon Polly Higgins’ definition of ecocide as ecological disaster caused by human agency, Short exemplifies the Athabasca tar sands as such: when extractive industries use indigenous lands, their environmental externalities can lead to physical as well as cultural destruction.
Tara Smith, Creating a Framework for the Prosecution of Environmental Crimes in International Criminal Law, in The Ashgate Research Companion to International Criminal Law (William A. Schabas et al. eds., 2013)
This chapter assesses the value of individual criminal responsibility for environmental damage by first critically examining the environmental dimension of international criminal law. Smith considers both possibilities of enhancing an existing crime in the Rome Statute (environmental war crimes) and of adding to it a new environmental crime (ecocide). In the former, she offers two suggestions for war crimes triggering individual criminal liability for environmental damage caused in armed conflict: (1) lower the threshold from conjunctive “widespread, long-term and severe” damage to disjunctive; (2) make a provision for non-international armed conflict. In the latter, Smith explains that “[t]he very essence of ecocide” would criminalize serious environmental damage caused intentionally, recklessly or negligently, so that those most responsible for such damage can be held criminally accountable in an effort to deter recurrence. While some define ecocide based on the right to a healthy environment and others as an extension of genocide, Smith suggests that a “more useful definition could be modelled on existing limitations of environmental harm in international criminal law’s war crimes provisions.” Notwithstanding that the types of remedy required by environmental damage are not currently offered by international criminal law, Smith predicts that “international criminal law will most certainly eventually evolve to recognise specific environmental crimes.”
John Taggart, Ecocide: A Worthy “Fifth Crime Against Peace”? The Journal (Mar. 17, 2014)
This magazine article explores “whether the ICC’s jurisdiction, currently over four groups of crime, is exhaustive and the ecocide lobbying efforts are consequently futile.” Taggart argues that no, ecocide can coexist with the other core crimes “without detracting from each other.” He presents that “the real litmus test” should be the German concept of Weltanschauung, “which thinks of overriding international interests from one global standpoint.” Drawing upon Higgins’ definition of ecocide, he concludes that “the extensive destruction of the very world we live in” is indeed a transcendent international issue. While he does entertain objections such as the suitability of ICC as the forum for ecocide and the challenge of semantics in defining ecocide, Taggart is in favor of the ecocide campaign overall, adding that “international law must adapt to fundamental constitutive changes.”
United Nations Environmental Programme & RHIPTO, The Rise of Environmental Crime—A Growing Threat to Natural Resources, Peace, Development and Security: A UNEP-INTERPOL Rapid Response Assessment (Christian Nelleman et al. eds., 2016)
This report provides a comprehensive overview of environmental crimes. In the absence of a universal definition, the report describes that the phrase “environmental crimes” is “often understood as a collective term to describe illegal activities harming the environment and aimed at benefitting individuals or groups or companies from the exploitation of, damage to, trade or theft of natural resources, including serious crimes and transnational organized crime.” Environmental crimes explored in the report include illegal wildlife trade, forestry crimes, waste and pollution, white collar environmental crimes, and “threat finance” (using wealth generated illegally from natural resources to support non-state armed groups and terrorism). In addition to highlighting the key natural, economic and political impacts of environmental crimes, the authors note that these crimes are different from others as they are “aggravated through their additional cost and impact on the environment and cost to future generations.” The report also discusses addressing root causes of environmental crimes and offers case studies of restoration. It concludes with recommendations, calling on the international community to recognize environmental crimes as a serious threat to peace and sustainable development and to “strengthen the environmental rule of law.”
Femke Wijdekop, Against Ecocide: Legal Protection for Earth, Great Transition Initiative (Aug. 2016)
In this short article, Wijdekop discusses criminalizing ecocide, “the massive damage and destruction of ecosystems” and an emerging ecocentric worldview in law. She begins with the landmark decision of Urgenda Foundation v. State of the Netherlands, which established, for the first time, that the Dutch Government owes a duty of care to its citizens and required it to reduce CO2 emissions. Beyond integrating the interests of future generations, Wijdekop advocates for an ecocentric framework under which duty of care is owed to nature, whose rights and legal standing should be recognized, instead of being treated as property under the current paradigm. She considers the work of Polly Higgins to amend the Rome Statute to include ecocide in 2010 a “conceptual comeback.” In this regard, “[d]esignating ecocide an international crime against peace can catalyze a transition to a green economy and a more peaceful global civilization.”
 Urgenda Foundation v. The Netherlands  HAZA C/09/00456689 (June 24, 2015).
Cindy Woods, The Guatemala Ecocide Case: What is means for the Business and Human Rights Movement, Justicia en las Américas/Due Process of Law Foundation Blog (Mar. 10, 2016)
This blog post begins with an ecocide case against a palm oil company whose conviction was upheld in 2016 by an environmental crimes court in Guatemala, the first country in the world to establish such a court. Brought by local civil society organizations, the case involved pesticide contamination to the Pasión River by Reforestadora de Palma de Peten S.A., killing millions of fish and other animals. As exemplified by this Guatemalan case, specialized courts for the adjudication of environmental crimes could serve as a “key stepping stone [sic] towards State fulfillment of international law obligations.” Pointing out that the proposed amendment to the Rome Statute by Polly Higgins includes the ICC’s jurisdiction over “companies, organizations with separate legal personality, and partnerships” for prosecuting ecocide, Woods concludes that conceptualizing ecocide as an international violation against corporate actors “could prove even more groundbreaking.”
David Zierler, The Invention of Ecocide: Agent Orange, Vietnam, and the Scientists Who Changed the Way We Think about the Environment (2011)
Ricardo Pereira, After the ICC Office of the Prosecutor’s 2016 Policy Paper on Case Selection and Prioritisation: Towards an International Crime of Ecocide? 31 Crim. L. F. 179–224 (2020)
In this article, Pereira evaluates the limitations of conceptualising ecocide based on existing crimes under the Rome Statute. Specifically, Pereira examines key developments since the adoption of the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) policy paper on case selection and prioritization in 2016. This policy paper, by explicitly referencing crimes committed “by means of, or that result in: the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land,” provided a promising basis for testing the Court’s jurisdiction in prosecuting such crimes. However, from the way the OTP has dealt with national Communications and the ICC’s case law, Pereira concludes, “unfortunately so far it is difficult to make a strong case for extending the court’s jurisdiction over ecocide.” In addition, the court’s lack of jurisdiction over corporate crimes is anticipated to further limit the effective prosecution of ecocide. Given that corporations are responsible for the majority of environmental offences, Pereira submits that “the accountability of corporations should be recognized under the ICC Statute.”
Maud Sarliève, Ecocide: Past, Present and Future Challenges, in Life on Land (Walter Leal Filho et al. eds., forthcoming 2021)
International criminal lawyer Maud Sarliève argues for the criminalization of “ecocide,” which has no universally accepted legal definition to date. Her case for ecocide as an international crime flows from her position that the first step to designing “a robust and legally sound definition proposal” is understanding the challenges such a legal development presents.
After following the definitional evolution of ecocide at national and international levels, Sarliève envisions two ways to fill the legal vacuum:
- amending the Rome Statute to include ecocide as a fifth crime under the International Criminal Court’s (“ICC”) jurisdiction
- negotiating a new Multilateral Environmental Agreement (“MEA”) exclusively for the crime of ecocide, with a supranational organ to enforce its domestic implementation.
Emphasizing that “the priority should be to agree on a definition,” Sarliève recommends tasking an interdisciplinary group of experts in international environmental and criminal law, as well as the climate, and representatives of law enforcement authorities with such a mandate. In this regard, she advocates for three recent proposals to consider: (1) Polly Higgins’ draft Model Law submitted to the International Law Commission (“ILC”) (2010), (2) Valérie Cabanes’ “End Ecocide on Earth” (2013), and (3) Laurent Neyret and his team’s Draft Convention against Ecocide (2015).
The common challenge these ecocide provisions raise is their inconsistency with the principle of legality. The reality of organized crime groups and private corporations committing environmental crimes further complicates the criminalization of ecocide. Sarliève concludes by suggesting a similar approach to the Monsanto International Tribunal—testing representative cases—to fine-tune a draft definition. Such a definition “might eventually collect enough political support to lead to international negotiations” for a Rome Statute amendment or a new MEA.
Selected Country-Specific Communications to the ICC Office of the Prosecutor
Human Rights Advocacy Collective (CADHu) & ARNS Commission, Informative Note to the Prosecutor International Criminal Court pursuant to Article 15 of the Rome Statute requesting a Preliminary Examination into Incitement to Genocide and Widespread Systematic Attacks Against Indigenous Peoples by President Jair Messias Bolsonaro in Brazil (Nov. 2019),
This Informative Note shows that specific activities undertaken by the Bolsonaro Administration dismantle public policies that seek to protect social and environmental rights as well as environmental oversight structures in Brazil, including indigenous land demarcation procedures. Demonstrating that the government is inciting violence against indigenous peoples as well as social and environmental rights defenders, the Human Rights Advocacy Collective (CADHu) requests the Office of the Prosecutor to investigate crimes against humanity and genocide the organization alleges.
Global Diligence, Communication Under Article 15 of the Rome Statute of the International Criminal Court The Commission of Crimes Against Humanity in Cambodia (2014),
Filed on behalf of Cambodian victims (“Filing Victims”) by Global Diligence lawyer Richard Rogers, this Communication presents evidence of crimes against humanity committed by the Cambodian government from July 2002 to time of writing in 2014. It argues that the Ruling Elite’s mass human rights violations as part of a widespread and systematic attack against the Cambodian civilian population pursuant to State policy constitute crimes against humanity. The Communication requests the OTP to consider initiating an investigation into these alleged crimes.
Request to the Office of the Prosecutor of the ICC from the Legal Representatives of the Victims, Communication: Situation in Ecuador (Oct. 23, 2014),
This Communication requests the Prosecutor to investigate environmental destruction by Chevron in the Ecuadorian Amazon as constituting crimes against humanity. From the 1960s to the 1990s, Texaco—which merged with Chevron in 2001—extracted oil from this area known as the Lago Agrio oil field and produced toxic waste. Since 1993, the victims have sought redress and accountability in domestic courts against Chevron for the pollution caused by Texaco, but to no avail. In 2001, the victims’ class action suit was dismissed for forum nonconveniens by a U.S. district court and upheld by the Second Circuit in 2002. In 2011, a court in Ecuador found Chevron responsible for the pollution and ordered Chevron to pay the victims $9 billion USD in damages. This Communication contends that Chevron’s acts to avoid legal responsibility since 2002, including its officers’ decisions to avoid enforcement of the 2011 judgment, “constitute a clear attack against the civilian population” as a crime against humanity.