International Criminal Law and the Protection of the Environment: Annotated bibliography

This is the summary record of the 1962^nd meeting where the human environment was discussed as part of crimes against humanity.

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.”

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 20^th 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 20^th 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.”

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.

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.”

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.

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.”

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.”

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.”

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.”

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.

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.

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.

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.

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.”

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.”

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.

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).”

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.

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.”

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.”

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.”

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.”

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.

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.”

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.”

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,[1] 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.”

[1] Urgenda Foundation v. The Netherlands [2015] HAZA C/09/00456689 (June 24, 2015).

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.”

In this paper, the evolution of ecocide as a crime and its status in international law and national jurisdictions is examined. The author proposes criminalizing ecocide as an effective measure to combat worldwide environmental destruction. He argues that there are currently no adequate mechanisms in place to effectively protect nature and thus our and future generations.

Ecocide was originally part of the draft Code of Crimes Against the Peace and Security of Mankind, the precursor of the Rome Statute. However, the inclusion of environmental crime was eventually withdrawn due to the opposition of powerful states (which are largely responsible for ecocide).

However, in the last years, the campaign to include the crime of ecocide as the fifth international crime against peace in the Rome Statute has been renewed, arguing that resource depletion inevitably leads to wars. As part of the Rome Statute, ecocide would be under the jurisdiction of the International Criminal Court and it would be possible to prosecute environmental destructions such as the 10 prominent examples listed in the paper.

While ecocide is not criminalized in international law, 10 states have recognized ecocide as a crime in their national jurisdiction. The author analyses these provisions in the respective penal/criminal codes and highlights the fact that none includes “a test of intent”, making ecocide a crime of strict liability. The paper examines the importance of codifying ecocide as a crime of strict liability as it prevents individuals and companies from denying responsibility for environmental destruction. The author appeals to the international community as well as all states who are yet to criminalize ecocide to enact and codify ecocide as law.

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.

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.

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.

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”).

This article applies the English School theory to explain the failure of efforts to establish ecocide as the fifth core international crime in the Rome Statute. Malhotra argues that while there is an emerging norm of environmental responsibility in international politics, the way this norm has been codified into law has been influenced by two, arguably stronger norms: the market and human rights. These two institutions of the international society have constrained the emergence of the norm of environmental responsibility. This has resulted in the establishment of utilitarian and anthropocentric environmental laws, rather than ecocentric laws, as advocated by environmental lawyer Polly Higgins.

This article argues that ecocide should be considered an international crime because of its severity, magnitude, potentially lasting effect, and the effect it has on many aspects of lives of different species. Corporations are indivisibly linked with ecocide as they recklessly seek profits. Even though corporations do not set out to commit acts of ecocide, i.e. they lack intent, they should still be held accountable. International criminal law can be used as a tool to deal with corporate ecocide. Adopting ecocide as an international crime can affect corporate accountability as it offers the opportunity to spark debate on the possibilities to tackle these issues in a consistent and effective way.

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.”

This article discusses the proceedings against US-based agricultural corporation, Monsanto, for complicity in war crimes and the crime of ecocide at the International Monsanto Tribunal (IMT), an informal people’s tribunal organized by hundreds of grassroots groups. It argues that Monsanto is, in many respects, an exemplar of the wanton environmental destruction that forms the substance and basis of human rights abuses, war crimes, and the hypothetical crime of ecocide. These symbolic proceedings offer a platform to address large-scale environmental damage. While a people’s court cannot make binding decisions, its findings nevertheless support the efforts of communities across the world to seek justice by referencing the opinion and guidance of eminent jurists, and their prediction about the future direction of international law.

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.

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.

This article examines the feasibility of ecocide as a criminal liability norm and concludes that the crime of ecocide represents an appropriate legal response to environmental damage. Mwanza asserts that when viewed through the lens of ecological integrity as a grundnorm for international law, the current substantive aspects of international criminal law relevant to environmental protection do not measure up to the demands of contemporary global environmental challenges, but a new crime of ecocide could fill this gap. In supporting proposals for new crime, Mwanza advocates for corporate criminal liability, an environmental (rather than anthropocentric) focus, and strict liability for perpetrators. Mwanza notes that in addition to legal and philosophical hurdles in arriving at an appropriate definition, the ICC’s institutional issues and lack of political support could pose a challenge. Thus, she suggests that efforts to strengthen the ICC’s role as a forum for environmental protection through development of new norms of accountability should be pursued alongside efforts to address its structural, procedural and legitimacy challenges. Lastly, Mwanza urges national governments and domestic jurisdictions to take action against ecocide, as this could be achieved more easily in the immediate future and would also help galvanize support at the international level.

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.

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.

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.”

This article draws attention to the need for a reform of the environmental protection by means of international criminal law as enshrined in the Rome Statute of the International Criminal Court. After giving a short overview of the contemporary environmental protection in war- and peacetime offered by international criminal law, it becomes clear that international criminal law fails to offer sufficient environmental protection. Bustami and Hecken outline that there is no convincing reason for a differentiated approach in international criminal law to environmental damage in wartime and in peacetime, and that a shift from an anthropocentric to an ecocentric approach would positively contribute to a more effective protection of the environment. Bustami and Hecken argue for the introduction of a new integral and ecocentric international crime against the environment in the Rome Statute and elaborate on existing proposals on such a new crime against the environment, focusing on the threshold and mens rea requirements. The insufficiency of the contemporary legal framework and the merits of a new crime against the environment are exemplified by an archetype example of peacetime environmental damage, the Chevron/Texaco oil spill scenario in Ecuador.

This blog addresses key concerns about the Independent Expert Panel definition of ecocide, such as the fact that it only considers unlawful and or wanton acts to fall under the definition of the proposed crime. The authors state that most environmental destruction does not fall under the illegal umbrella and that the use of the word wanton assumes that there are conditions in which it is permissible to cause environmental damage. It argues that such assumption fails to recognize the gravity of the crime of ecocide which should have a similar no derogation standard as human rights crimes such as torture.

In this blog post, Christina Voigt, a member of the Independent Expert Panel (IEP), explains some of the general choices the panel made against the options that were considered. The work on the definition was guided by certain parameters, namely: (1) pragmatism and realism, (2) precedent, (3) deference and respect, (4) environmental integrity, and (5) legal effectiveness. Voigt mentions that the IEP focused on choosing a pragmatic definition that has a chance of being adopted by State Parties. In coming up with the definition, the IEP wanted to be able to trace back key terms and concepts in the proposed definition to authoritative, legal sources and drew inspiration from other international courts. The IEP chose not to amend existing crimes under ICC jurisdiction and instead propose a new crime because any amendment of those crimes could potentially open them up to further negotiations and it was important to capture certain categories of damage, including damage to the environment per se, independent from harm to human life or the contexts of war (both of which are important elements of the core crimes).

In this blog, Krott suggests that an ecocentric approach, which takes into consideration the well-being of nature, is more well-suited to establish an international environmental crime. He argues that anthropogenic view, which focuses on humanity, as well as a general lack of regard for nature has contributed to labeling international environmental crimes as a “second class crime” as opposed to ecocide which is considered a “first class crime.” However, Krott argues that a “clear delineation” between ecocide and international environmental crimes is still missing. As such, Krott welcomes the ecocide panel efforts and adoption of an ecocentric approach.

This blog post responds to critiques, in particular, to Heller’s. Robinson offers an overview of the issues, the available options, and the legitimate criticisms applicable to each option and shows why combining international criminal law (ICL) with international environmental law (IEL) raises fascinating novel challenges that are not initially evident to ICL lawyers. Robinson notes that compared to international human rights law and international humanitarian law, the sources used to define war crimes and crimes against humanity, IEL does not have strict prohibitions on conduct. Rather, IEL requires balancing economic needs and environmental harms, making a list of specific prohibited acts and chapeau elements, as in core international crimes, impractical. Robinson responds to Heller’s critiques by explaining that ecocide is not based on genocide: both contain the root -cide (meaning to kill) to signal the seriousness of the conduct. Robinson also remarks that Article 30, the intent provision of the Rome Statute, is merely a default rule and allows for other mens rea approaches and different approaches have been taken in other provisions, like superior responsibility. One of the key questions Robinson ends on is whether harm must actually materialize, or is it sufficient that the person proceeds despite foresight of harm.

This article outlines and examines the recent (2020-2021) developments in international environmental law, including Stop Ecocide’s campaign for a new international crime of ecocide and the Independent Expert Panel’s proposed definition of ecocide. Harrison notes that the disjunctive phrasing in the definition leads to prohibiting acts which are either unlawful or wanton. Since an act may be wanton even though it is legal, this provides an important safety net to prevent perpetrators of severe and widespread or long-term harm from evading justice, simply because their actions were not in breach of existing international or national law. Harrison identifies the amendment process and subsequent required ratification by states as a hurdle to making this definition operational and notes that even then, the workability of the definition will depend on decisions of the Court and the Office of the Prosecutor.

This blog discusses the efforts and challenges surrounding the crime of ecocide. Aparac particularly notes that she disagrees with the Independent Expert Panel decision in not including corporate actors in the definition of the crime of ecocide because of the role that multinational corporations play in the destruction of the environment and climate change. She notes that corporate actors are not necessarily excluded from the definition of ecocide as they could be responsible as individuals for the acts committed by their company. She notes challenges for the criminal prosecution of corporate actors and the need to include corporate responsibility explicitly in the Rome Statute. She also claims that “the existing possibility for corporate reparations before the ICC would apply to the ecocide crime.” She notes that rules 94(2) and 95(1) of the Rules of Procedure and Evidence refer to “persons” without specifying the natural or legal character, which she believes “which could potentially lead to the corporations being requested to pay reparation in cases where their directors have been convicted for ecocide.” However, she recognizes that this is merely an hypothetical assumption. Lastly, Aparac argues that by addressing solely the crime of ecocide without the corporate responsibility issue, the drafters of the ecocide proposal are only offering a partial response to the environment issues.

The blog discusses the Independent Expert Panel’s definition of ecocide. In terms of the actus reus, the author notes that there are two acts that criminal liability could be attached to: unlawful and wanton acts. The author believes the unlawful route is more straightforward than the wanton one because the latter sets a high bar for prosecution as he believes that the defendant will argue that they did not know the damage or the scale of such damage. In relation to the mens rea, the author breaks down every part of the “’knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts”. Lastly, the author states that international criminal law is not a perfect tool to address environmental issues, but acknowledges that the effects of environmental crisis can be compared to some of the effects of war which are “the natural domain of the ICC.

In this blog, Ambos provides several criticisms of the Independent Expert Panel definition of ecocide. Ambos argues that the proposal lacks sufficient reasoning, as well as lacks guidance to address the problems that arise with their definition. Ambos states that the drafters failed to provide empirical data to support their hope that a potential crime of ecocide could lead to a change in people’s consciousness. He states that the proposal is not “consistent in its self-proclaimed ecocentric approach, since it allows for a cost-benefit analysis in case of lawful environmental damage.” Furthermore, Ambos argues that the practical application of the ecocide crime will lead to interpretive challenges that the drafters have not addressed. Lastly, Ambos argues that it is more practical “to further develop in case law those elements in the existing international core crimes which have an environmental ingredient.”

This article critiques the Independent Expert Panel’s definition of ecocide, arguing that it bears little resemblance to genocide, has a difficult mens rea standard, and remains anthropocentric. First, Heller argues that ecocide is based on genocide but has little resemblance to genocide in terms of legal structure and more resembles crimes against humanity. Second, Heller explains that the mens rea of ecocide is substantially lower than the Article 30 default mens rea in the Rome Statute, which requires a virtual certainty that prohibited consequence will occur. Heller also claims that the inclusion of “wanton” adds another layer to the mens rea requirement: “so it is not enough for a perpetrator to ‘know’ that his or her acts will cause ‘severe and either widespread or long-term damage to the environment.’ He or she must also be aware that the damage will be ‘clearly excessive in relation to the social and economic benefits anticipated.’” Third, Heller contends that damage to the environment should not be balanced against human benefit. To alleviate these issues, Heller proposes that following alternative definition: “For the purpose of this Statute, “ecocide” means acts committed with awareness that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts, where a reasonable person would know that the expected environmental damage would be clearly excessive in relation to the social and economic benefits anticipated.”

In this article, Heller elaborates on his previous critique of anthropocentric cost-benefit analysis in the definition of ecocide. Heller engages with Christina Voigt, from the Independent Expert Panel, who pointed out that the wantonness cost-benefit analysis applies only to lawful acts that involve a substantial likelihood of causing either widespread or long-term severe environmental damage. Voigt sees the only alternative as criminalizing unlawful acts only, while Heller considers that the definition should criminalize “any act that the perpetrator knew involved a substantial likelihood of causing either widespread or long-term severe environmental damage, regardless of whether that act was lawful or unlawful.” Further, Heller points out that the cost-benefit analysis (in theory) would be used often, since the lack of explicit prohibitions in domestic environmental law mean that most acts are lawful. Voigt worries that getting rid of this balancing would mean that any sort of development, like the building of schools, would fall under the definition of ecocide. Responding to this concern, Heller notes that the ecocide only criminalizes severe and either widespread or long-term damage to the environment which is unlikely to occur from these development projects. Heller clarifies that he is not necessarily opposed to creating an international crime that prohibits lawful acts whose expected environmental harm exceeds or clearly exceeds their anthropocentric value — essentially a peacetime equivalent to Art. 8(2)(b)(iv), but any such crime should be considered a crime against humanity, thus emphasizing its anthropocentric nature.

In this blog, Heller evaluates whether the wantonness requirement of the definition of ecocide “would be likely to produce outcomes (ecocide/not ecocide) that comport with our intuitions about what kinds of environmentally damaging acts should be criminalized.” In order to illustrate his point, Heller uses an hypothetical and evaluates whether “authorizing ‘a massive new coal field and a massive new coal fired power plant’ in ‘an industrialized country’ qualify as ecocide under the IEP definition.” Heller argues that the definition of ecocide should use an objective test (“a reasonableness standard”) rather than a subjective one when applying a “anthropocentric cost-benefit analysis to lawful acts.” As such, judges would have to examine circumstantial evidence to determine whether a CEO “consciously disregard[ed] the likelihood that the project’s costs would clearly exceed its benefits.” Moreover, the judges would have to be convinced that a CEO “did know that the project was unjustified.” Lastly, Heller argues that ecocide should not treat lawful and unlawful acts in a different manner.

This article engages with the debate on the Independent Expert Panel’s ( IEP) definition of ecocide by exploring in more detail two specific aspects of that definition. First, Minkova notes that even though the focus of the IEP’s proposal would be substantially more environmental than anthropocentric, it has still attracted criticism for incorporating an anthropocentric element. Specifically, the second paragraph of the proposed Article 8ter allows for consideration of the “social and economic benefit anticipated” from a particular environmentally harmful activity in assessing whether that activity amounts to an ecocide. To Minkova, this cost–benefit test obstructs the symbolic value of criminalizing the crime of ecocide at the ICC in the first place, namely, to communicate the idea that the wellbeing of nature and that of humans are inherently interlinked. Second, Minkova discusses the confusion regarding the mental element required under article 8ter. The exact requirement is “knowledge that there is a substantial likelihood,” but the IEP has commented that they mean recklessness or dolus eventualis. However, Minkova argues that knowledge, recklessness, and dolus eventualis are all separate standards and the current definition and commentary obscures what mental element is actually required. She suggests substituting knowledge with an “awareness of substantial likelihood” for the sake of clarity

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.

In this blog, Karnavas analyzes whether the definition of ecocide is sound and how realistic is the possibility of the Assembly of States Parties adopting it as a fifth international core crime. He views the “initiative as unrealistic, the definition replete with flaws, and the commentary remarkably wanting.” Karnavas criticizes the misleading name of ecocide and its corresponding confusing mens rea. He also criticizes the process that led to the Commentary and Core text of ecocide due to the lack of information about the experts consulted and peer review processes. Furthermore, Karnavas argues that it is not realistic that ecocide would be adopted as a new crime considering the state of affairs of the ICC which should focus instead on more pressing issues. Lastly, he suggests pursuing domestic legal processes instead, such as imposing environmental injunctions or recognizing the rights of nature.

In this blog, Kersting evaluates whether the definition of ecocide is “truly ecocentric? More importantly, does the emphasis on symbolism come at the expense of clarity and enforceability? Is the definition fit for purpose – for legal purpose, beyond symbolic purpose?”. Kersting highlights the symbolism surrounding the crime of ecocide-from its name to the day that the panel was launched. Moreover, she argues that the ecocide definition is rather anthropocentric than ecocentric. Lastly, Kersting criticizes the lack of legal certainty of the proposed definition of the crime of ecocide due to the lack of a description of the actus reus. She argues that judges and prosecutors should not be the ones in the charge of defining criminal acts. As such, Kersting finds that the ecocide efforts have resulted in a “highly symbolic, but impractical definition.”

In this article, Perez discusses the environmental law of Brazil, President Bolsonaro’s anti-environmental agenda, and its corresponding environmental impact in the Amazon. Perez recommends that the ICC be used as a path to prosecute President Bolsonaro for crimes against humanity and/or genocide due to effect of his policies on the environment and indigenous peoples’ rights. Furthermore, Perez argues that ecocide should be recognized as a crime against humanity and incorporated into the Rome Statute to save the Amazon

Inspired by the Independent Expert Panel’s proposal, this article advocates for establishing a new International Environmental Criminal Court (IECC) specifically for adjudicating ecocide cases and assesses the benefits and limitations of such a court. Lam Ching Wang explains that an IECC would be preferred to an amendment to the Rome Statute because amendments to the Rome Statute require a two-thirds majority and a new court could be set up with a lower ratification threshold. In addition, the IECC could have features, like corporate liability, that would allow it to combat ecocide more effectively. The IECC Convention could provide for the parent corporation to be held liable when it fails to reasonably prevent its subsidiaries from committing ecocide, or when it has substantial control over the subsidiaries whose conduct would be attributable to the parent. Penalties imposed on the corporate entity itself, such as confiscation of assets, closure of the corporation’s establishments or even corporate dissolution, would more likely stimulate an overall change of corporate policies and deter problematic corporate practices than penalties imposed on individuals, especially when the environmental harm is created by an overall policy, system or decision-making process. Lastly, Lam Ching Wang notes that ecocide’s ecocentric nature and lower mens rea threshold make it “inconsistent with the Rome Statute,” and would particularly justify the establishment of an IECC.

The debate on introducing the international crime of ecocide and corporate liability at the international level has been intense during the last fifty years. A recent research project elaborated two draft conventions on the supranational crime of ecocide and transnational crimes (eco-crimes), both acknowledging corporate liability. Also in recent years, the International Monsanto Tribunal – an opinion tribunal – found the Monsanto multinational enterprise responsible for ecocide: although not binding, its advisory opinion tackles most of the critical issues arising from corporate environmental crime. After a review of the case, the article analyses the Draft Convention Ecocide, focusing on the main features of this crime and the corporate liability system provided. Albeit some aspects could be subject to critics, the project has several strengths, particularly for its pragmatic approach to corporate remediation, and also aimed at fostering the dialogue between the national States through the approval of a specific convention.

This publication opens by explaining the global effort to tackle the increasing urgency of the climate emergency, and the ways in which the term ‘ecocide’ has evolved over time. It then demonstrates how ecocide has now made its way back on the international agenda, as well as the ways in which the concept has developed domestically across different nations. It then closes upon a few hurdles that ecocide must overcome, including the specificity required of the definition, mens rea element, and the fact that corporations cannot be held directly liable under the Rome Statute.

This paper argues that ecocide is the most effective way to address climate change. Through comparing ecocide to the Paris Agreement, this paper concludes ecocide has the potential to better ensure that States commit to reducing environmental harm. It is concluded that ecocide is the most effective way to address climate change as ecocide holds more polluters accountable, utilizes a more effective pre-emptive approach, contains stronger legal consequences and employs a narrative that emphasizes the protection of human rights. As climate change continues to exacerbate, this paper provides valuable insight on how we can better address climate change at an international level.

The proposed definition has already prompted a lively discussion, with regard to various aspects and components of the definition. However, and regardless of the exact wording to be ultimately adopted by States Parties, one may assume that amending the Rome Statute so that it includes the crime of ecocide will not be an easy task, to say the least, due to the difficulties of building broad political support and global cooperation around the definition. Additionally, even if two thirds of States Parties were to agree to amend the Statute, as required by Article 121(3) of the Rome Statute, achieving this might take time. When asked, Prof. Sands estimated that amending the Statute so that it includes the proposed crime of ecocide would take “somewhere between five and fifty years”. Also, the amendment will most probably not apply retroactively and – according to article 121(5) of the Rome Statute – it will enter into force only for those States Parties which have accepted the amendment.

A panel of criminal and environmental lawyers from around the world has created a legal definition for ‘ecocide’ as the basis of a push to criminalize mass damage and destruction of ecosystems. The definition will be made available for states to consider and is part of an ongoing effort by NGO Stop Ecocide to add environmental damage to the list of international crimes at the International Criminal Court (ICC). This would create an arrestable offence for anyone committing ecocide, and would make individuals responsible for acts or decisions that cause severe damage to the environment liable for criminal prosecution. Currently, companies found to have caused environmental harm are largely punished though fines or suing. If the ICC backs the suggestion, however, it might be many years before ecocide joins the four existing international crimes within the Court’s jurisdiction. Those four existing crimes are: genocide, war crimes, crimes against humanity, and acts of aggression (i.e., one state or country attacking or threatening another). All four are concerned with the harms done to people through the actions of states or their representatives.

The blogpost discusses the challenges of repairing ecocide by examining the ICC Reparation System. The author identifies two constraints of the ICC Reaparation System: first, it is an anthropocentric reparation system, whereas ecocide is supposed to be ecocentric. Second, the reparation system is focusing on concrete events causing specific harm to concrete people, however, ecocide may cause more diffuse harm. The blogpost comes to the conlcusion that the current reparation system is not designed to address ecocide, however it is open enough to accomodate the challenges. The potential of ecocide reparation can strengthen the argument on enacting the crime into law.

The consideration of ecocide as an international crime is the single most powerful measure due to enlarged loss of biodiversity around the world and lack of reversing technique to compensate the system failure which helps to emphasise that the security of our planet must be guaranteed on an international scale. This article explains the need to consider ecocide as an international crime by breaking down the Panel’s definition, explaining the national and international stance on enviornment protection and the aim behind the introduction of ecocide.

The crime of “ecocide” has been discussed for almost 50 years, and it is still an issue to be considered. Starting as scientific and biological debates, ecocide arguments became foremost political and then juridical. Recently, in 2021, the ‘Stop Ecocide Foundation’ proposed to add ecocide as a new crime to the ICC Rome Statute (hereinafter “RS”), recommending amendments regarding substantive law and the structure of the crime of ecocide. This paper does not argue against this proposal. On the contrary, it puts forward an integrative proposal, focused on the procedural issues, suggesting seven macro-amendments, namely: 1) Jurisdiction ratione temporis and the withdrawal process, amending articles 127 and 121 RS; 2) The ‘deferral of investigation or prosecution’ power of the renewal by the UN Security Council should not be authorised more than once, amending Article 16 bis RS; 3) The introduction of Aggravated Ecocide, and its Aggravating Circumstances, namely those actions or omissions which have a ‘substantial impact on greenhouse gas emissions and/or climate change’, amending Article 8 ter RS draft and rule 145 of Rules of Procedure and Evidence (hereinafter, “RPE”); 4) The exercise of jurisdiction, in case of aggravated ecocide, on the basis of UN environmental authorities’ reports, such as the reports of the Intergovernmental Panel on Climate Change (IPCC), Special Rapporteur on the Promotion and Protection of Human Rights in the context of Climate Change, or the Special Rapporteur on Human Rights and the Environment, amending articles 13 and 15 RS; 5) Changing the standard of proof in cases of aggravated ecocide from “reasonable basis” to proceed (and to believe) to a “sufficient basis,” amending articles 15, 18 and 53 RS and Regulations 27 and 29 of the Regulation of the Prosecutor; 6) Regarding issues of admissibility, introducing a rebuttable presumption of both “gravity” and “interests of justice” in cases of aggravated ecocide, amending articles 17 and 19 RS and Regulations 29 and 31 bis of the Regulation of the Prosecutor; and 7) The exclusion to the so-called proceedings on an admission of guilt in cases of aggravated ecocide, amending articles 64 and 65 RS and Rule 139 of RPE.

In this blog, Greene discusses the mens rea of the Independent Expert panel definition of ecocide. She notes that there are three basic forms of mens rea under ICC prosecutions, including “dolus directus”, “dolus indirectus”, and “dolus eventualis.” Greene notes that the mens rea used in the ecocide definition is the last one. The author states that even though the Rome Statute only covers the direct intent to harm or knowledge that the harm will occur, Article 30 of the Rome Statute provides for exceptions under the language “unless otherwise provided” which could allow for ecocide’s less stringent definition of mens rea. However, Greene notes that the drafters of the Rome Statute originally considered and rejected the mens rea proposed by the Independent Expert Panel definition of ecocide, which could indicate additional challenges for the passage of the crime of ecocide.

This article discusses ecocide in relation to the infamous usage of herbicides during the Vietnam War. Fauzy notes that there are no formal international legal instruments that criminalize the act of ecocide. However, he questions whether ecocide, by its nature, is an international crime. To answer this question, the article identifies different arguments for what makes a crime an international crime from the International Law Commission, the jurisprudence of the ad hoc tribunals, and scholarly debates. Ultimately, the article finds that ecocide is not an international crime according to the parameter of “universally criminal.” because there is no international treaty that criminalizes ecocide, not enough states that deem ecocide as a crime, and no UN General Assembly Resolution that obliged the state to criminalize ecocide. However, the author notes that the environmental destruction in the Vietnam War fulfills the elements of ecocide pursuant to Article 26 of the 1991 Draft Code of Crimes Against Peace and Security of Mankind, due to the willful nature of the widespread, long-term, and severe damage to the natural environment caused.

This paper recounts the road to a definition of ecocide, going back to Richard Falk’s Draft International Convention on the Crime of Ecocide in 1973. The author notes that starting as scientific and biological debates during the Vietnam War, ecocide arguments became foremost political and then juridical. Recently in 2021, the Stop Ecocide Foundation proposed to add ecocide as a new crime to the International Criminal Court’s Rome Statute, recommending amendments regarding substantive law and the structure of the crime of ecocide. Following an examination of the history of the crime of ecocide, Chiarini puts forward an integrative proposal focused on procedural issues, suggesting seven macro-amendments involving jurisdiction ratione temporis and the withdrawal process, standards of proof, issues of admissibility, the prosecutorial discretion and the UN Security Council powers, as well as a new definition of aggravated ecocide in case of Substantial Impact on Greenhouse Gas Emissions or Climate Change.

This blog post is a response to the “Ecocide: Legal Revolution or Symbolism” post written by Romina Pezzot and Jan-Phillip Graf. Heller notes that he does not believe that the International Expert Panel (IEP) definition adequately protects the environment nor that it would be a legal revolution, because the definition provides a loophole with the balancing provisions. Lawful acts qualify as ecocide under the IEP definition only if, in addition to causing “severe and either widespread or long-term damage to the environment,” they are also wanton: committed “with reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated.” Heller argues that the type of development allowed under this is not sustainable development. He states that the IEP definition of ecocide cannot remotely be considered ecocentric and its adoption may crystallize in ICL a standard whereby the environment is only worth protecting” when humans don’t have a good enough reason to destroy it.”

This blog post identifies four ways in which the definition of ecocide as an international crime is unique. First, ecocide is the first non-anthropocentric crime. Second, ecocide would apply during times of peace and armed conflict alike, thus becoming a counterweight to international criminal law’s (ICL) bias towards criminality during armed conflicts. Third, the drafting process for ecocide, organized by civil society actors, was fast and efficient compared to the drawn-out drafting processes of the International Law Association and the UN General Assembly. Fourth, ecocide provides revolutionary alignment between ICL and international environmental law. Pezzot and Graf see ecocide as both a legal revolution and a symbolic act. On one hand, ecocide has revolutionary potential in introducing an ecocentric element into ICL. On the other hand, it symbolizes our values as a global community and could be a first step to ensure respect, protection, and recognition of the environment.

In this blog, Joshi argues that a new crime of ecocide is needed because the current legal framework makes it difficult to attribute responsibility to the ones causing or contributing to the destruction of the environment. Joshi also discusses the lack of legal standing of the environment. The author also asserts that the International Criminal Court could play an important role in accountability, deterring the crime, but also in sending a message against impunity towards environmental crimes. Lastly, Joshi points out that prosecuting ecocide could help the International Criminal Court to address the criticism that it only targets countries of the Global South as many perpetrators of ecocide are found in the Global North.

In this blog, Vrishnak Singhania examines the Independent Expert Panel’s rationale that the possibility of holding CEOs personally liable for ecocide will deter corporate activities that harm the environment. Singhania argues that the proposal would be ineffective for two reasons. First, the Rome Statute does not have the tools to hold CEOs liable. Instead, it is more likely that mid-level managers will be held liable. Second, without corporate criminal liability, corporations are unlikely to change their behavior.

Through cenuries of continuous exploitation and damage to the environment, humans have degraded the resources for their own survival. Climate change and the extinction of several species are the outcomes of the long-term destruction of the environment. Still, big corporations and many states are ignoring this fact and and damaging the environment for their own profits. For decades, various legal experts, environmentalists and philantrophists have been working on the criminalising “ecocide” and adding it as the fifth international crime to the Rome Statute. For the better implementation of this right, we need a law that criminalises that crime against the environment at a global level. Many countries have included crimes against the environment in their national penal codes. But we need a convention that harmonises the laws in the area of criminalising ecocide at a global level. This research paper is divided into four parts. The first part is focusing on the evolution and conceptual understanding of the term “ecocide”.The second part deals with the legislative framework at the domestic and international stage. The third part includes the implication of ecocide in various states and case studies related to it. The last part concludes with an analysis of the situation based on the criminalisation of ecocide and why there is a need for the convention on ecocide.

Humanity is at a crossroads concerning the protection of the ecosystem. The Scientific evidences refers to that the emission of greenhouse gases and the destruction of ecosystems will have catastrophic consequences for our common environment, despite the progress made in the field of international environmental law, But it has not reached the recognition and criminalization of this threat in international criminal law. Destruction and damage to the ecosystem can therefore be attributed to the anthropological nature of international criminal law. International efforts have emerged to criminalize environmental destruction, such as the policy paper submitted by the Office of the Prosecutor of the International Criminal Court for 2016, and doctrinal efforts to promote the addition of the crime of environmental genocide as a fifth crime within the context of crimes of which the International Criminal Court.

A central topic for critical green criminology includes corporate criminality and the socio-legal dynamics that determine what is officially labelled as a crime. Activities involving the environment (from illegal waste disposal to environmental protests) done by corporations, states, activists and private citizens are labelled as either ‘legal’ or ‘illegal’ based on the legislation and politics of a jurisdiction.

When natural environment is under an attack, humans suffer too but should “Ecocide” which literally translates into “killing the environment” be made a criminal offence and if yes, then how will such a law work out? Considering the current inadequacies in environmental governance and increasing cata- strophic consequences, very recently, a proposal has been made in order to include ecocide as the fifth international crime. If and when promulgated as law, this should yield in a novel historic shift towards adopting a non-anthropocentric approach. Implementation of ecocide as a legal command, albeit an appreciable idea, involves certain challenges in terms of drafting and promulgating such com- mand as a “rule” or “standard”. This paper, through a law and economics perspective, while discussing the various shortcomings, critiques the definition for its standard-like approach. Legally and econom- ically, promulgation of any command can be either in the form of rules or standards. However, con- sidering the lack of consensus and inconsistent usage of the terms in the definition, the proposal seems to be a closer fit within the latter category. This however, not only falls inconsistent with the envisioned aim of creating certainty and predictability but also falters within a sound regime of cost benefit analysis. The idea is to propose a combination of “ex ante” determination of law i.e., formula- tion of rule and “ex post” liability in the contingency of the said rule being violated. This is especially important considering the penal repercussions associated with the crime. That being said, it is acknowledged that even the implementation of rules might have certain shortcomings yet the idea is not to prove that ecocide as a rule is intrinsically the best; instead, it is at least perceived to be better than the rest.

The blog raises the concern around the Independent Expert Panel’s legal definition of ecocide. Through a hypothetical case, the blog examines the aspects of individual criminal liability and the scope of the crime. After the legal analysis of the definition of ecocide, the blog comes to the conclusion, that the current proposal for the definition of the crime of ecocide is not specific enough to address the challenges, and there is a lack of clarity as to how and to whom would it apply in practice.

This article introduces the new definition of ecocide by the Independent Expert Panel, 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 article concludes that 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. 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.

The environment provides a multitude of ecosystem services that ensure our well-being; clean water, pure air, and food, to name a few. Yet, individuals continue to degrade the environment with little to no recourse. Current international laws in place prove ineffective in protecting our environment at a global level. Thus, it is time to enact stricter international laws to hold big polluters accountable. Ecocide, broadly understood to mean mass damage and destruction of ecosystems – severe harm to nature that is widespread or long-term, is a continuing issue on our planet. Thus, it is necessary to criminalize such action to prevent further environmental degradation. The Independent Expert Panel, convened by the Stop Ecocide Foundation for the Legal Definition of Ecocide, recently proposed an amendment to the Rome Statute of the International Criminal Court to include the crime of ecocide. While this proposal offers a viable solution to our current environmental issues, there are several weaknesses in the proposal. This article analyzes the history of ecocide, the proposed Rome Statute amendment, and the weaknesses of the proposed amendment. Through this analysis, it becomes clear that it is necessary to criminalize ecocide despite the disadvantages.

Popular interest in a new crime of ‘ecocide’ has recently surged. The proposed crime seeks to repudiate and stigmatize the most egregious environmental wrongdoing and would complement other efforts to curb the ongoing destruction. In June 2021, an international panel proposed a definition of the crime. Initial academic commentaries, many of them critical, reflect entirely understandable first reactions. However, combining international criminal law (ICL) and environmental law raises fascinating new issues that are not initially obvious. This article surveys the main issues in defining ecocide. For example, is a crime of ecocide a worthy idea? Is the best approach to amend the ICC Statute or to start with a smaller group of supportive states? It also introduces the main drafting options and controversies. The hardest puzzle, by far, is how to align ecocide with environmental law. Some seemingly simple solutions would entail rejecting environmental law; the author argues that there are principled, normative, and strategic reasons why a crime of ecocide should reflect environmental law, not reject it. The article shows that each available solution invites plausible concerns. Thus, a conversation about defining ecocide must be a nuanced one about which options are least problematic. The article outlines possible future directions for exploration; with further deliberation, more elegant criteria may yet be found.

This article is the revised text of the 2020 Stockholm Environmental Law lecture. Its two parts discuss, respectively, some of the issues surrounding access to justice by NGOs in order to protect the environment and whether the time has come to add a fifth crime of ‘ecocide’ to the crimes against humanity that are criminalised under the Rome Statute.

Crimes against the environment affect fundamental values and collective interests shared by the international community as a whole. The ‘global’ nature of the protected interests and the erga omnes character of many international environmental obligations are the main arguments in favour of the international criminalisation of certain environmental harms. This paper offers a survey of the development of international law with regard to the legal definition and consequences of environmental crimes from the perspective of both the law of state responsibility and international criminal law, up to the latest definition of ecocide and the proposal for its inclusion in the Rome Statute as formulated by the Panel of Independent Experts convened by the Stop Ecocide Foundation. In so doing, the legal regime related to environmental crimes is also considered through the environmental ethics lens, so as to evidence the progressive evolution from an anthropocentric approach to the ecocentric view which characterises the new legal definition of the crime of ecocide.

Deep, human induced, environmental changes become a global danger for the whole population. A form of reaction to those dangers as well as possibility of reversing the risks can be a deeper insight into the legal instruments of environmental liability – including the criminal liability for environmental harm. While national legal systems seem to succeed in introducing instruments of criminal liability of environmental crimes, the international law seems not to follow this trend. It is even hard to specify what constitutes the environmental crime according to international law. The evolution of international law in this field has shown many and unsuccessful attempts to bring environmental crimes into the catalogues of crimes recognized by international law. The most promising fora for identification of international crimes against environment seems to be the International Criminal Court (ICC). Potential use of ICC for identification and effective realization of criminal liability of environmental damage has however its limits.

The definition of a crime of ecocide introduced by an independent expert panel in June 2021 has been hyped as being historic. However, its chances of being included in the Rome Statute – particularly in its current form – are questionable. This article will thus firstly discuss whether the newly published definition of ecocide can be dogmatically adopted into the Rome Statute and which modifications would have to be made beforehand, especially regarding mens rea. To this end, a modification of the draft regarding ‘wanton acts’ is proposed. The author then analyzes the environmental law aspects of ecocide, bringing to the fore a possible threat to the principle of cooperation. It will be examined whether a crime of ecocide possibly entails opportunities for bringing ‘sustainable development’ back into its ecological balance and overcoming fragmentation in (international) environmental law. The paper critically examines whether structural deficits of international criminal law can be remedied and whether the shortcomings of international law particularly regarding corporate liability might necessitate the establishment of new institutions that could protect the environment more comprehensively. It lastly discusses alternative proposals to the amendment of the Rome Statute. The author concludes that these alternatives all entail a new set of problems and should thus not be pursued. The non-existence of corporate liability in the Rome Statute is identified as one of the most significant problems for ecocide’s effectiveness.

This study against the backdrop of years of ungoverned, unrestrained widespread, and systematic harm to nature caused by detrimental human activities foretells an ecocidal and ecological crisis and emergency such that the destruction of the natural world destroys the chances of maintaining a liveable planet, set out to examine the concept of ecocide and the imperatives for international legal regulation.

By seeking to examine the concept of ecocide, consider global attempts at creating a legal framework for regulating ecocide and highlight the challenges militating against the effectiveness of global attempts at regulating ecocide before proffering recommendations on this discourse employed the doctrinal method of research which entails the examination and discussion of legal principles and doctrines from journals, case laws, the Rome Statute, and charters among others.

This study thus found that ecocide as a concept developed in the 1970s when demands were made for its criminalisation under international law which never materialised and even with the entering into force of the Rome Statute, no provision for ecocide was made and the closest to the criminalisation and punishment of environmental damage was couched under Article 8 (2) (b) (iv) which only accounted for possibly ecocidal acts in times of war. This study also found that there is a lack of consensus on a generally accepted definition for ecocide hence, warranting calls for the express criminalisation of ecocide as a crime committed whether in peace or wartime.

The study thus concluded by drawing attention to the impending danger that will arise if ecocide is not criminalised under the Rome Statute or a specific Ecocide Convention and thus added voice to the call for an amendment to the Statute as well as a possible universal declaration of environmental rights which specifies the inherent rights of nature that is diametrical to human rights that will perhaps change the trajectory of environmental protection discourse in the international community.

This post argues that a traditional prosecutorial approach is necessary but not sufficient to redress environmental damage. Accordingly, this post takes a step further – post incorporation of ecocide as a crime into the Rome Statute in some form – and proposes the deployment of complementary Transitional Justice Mechanisms (‘TJMs’) that would make the fifth crime significantly more effective.

Although the idea of criminalizing conduct that negatively impacts the environment and the term “ecocide” are not new in international law, their active discussion commenced only recently, notably after a group of experts known as the Independent Expert Panel for the Legal Definition of Ecocide, convened by the “Stop Ecocide Foundation”, proposed a definition of the term “ecocide”. Some forms of adverse impact on the environment are already criminalized both internationally (Article 8(2)(b)(iv) of the Rome Statute of the International Criminal Court) and in some domestic jurisdictions, even though few states use the exact term “ecocide”. Russia introduced the term into its criminal code of 1996, followed by some post-Soviet countries (including Ukraine), which copied the definition. Yet, their courts pronounced no sentences for ecocide for a quarter of a century. In 2021 however, the Russian Investigative Committee, the main federal investigating authority in Russia, initiated a case on ecocide allegedly resulting from the blocking of the North Crimean Canal by Ukraine. Ukraine also runs an ecocide investigation, although less obviously linked to the conflict. These engender several tough legal questions. Can ecocide take the form of destruction of an artificial ecosystem and its return to the original state of nature? Can an occupying power prosecute a case of ecocide allegedly taking place on the land of indigenous people, if the latter support actions characterized as ecocide by the occupying power? This ICD Brief is an attempt to raise these questions and offer responses, which may be applicable in the Crimean case. It will do so by placing the case into the global context and comparing Russian, Ukrainian, and international law. Even though the Russian case is domestic in nature, its implications may be applicable for the development of ecocide law globally

This excerpt highlights an increasingly vital function of the first permanent International Criminal Court (ICC) in the world. The Rome Statute recognizes prosecutorial practices along with transitional justice, toward a holistic rebuilding of post-conflict societies. In this vein, Article 53 of the Rome Statute stipulates that an investigation may be forgone if it “would not serve the interests of justice.” Article 75 further recognizes symbolic and restorative forms of reparations before the ICC. The ICC Office of the Prosecutor also expresses support for capacity-building, traditional justice, and institutional reforms. The ICC therefore blurs the lines between retributive, deterrent, and transitional justice, making itself potentially far more effective than a pure prosecutorial mechanism. Therefore, traditional prosecution before the ICC for the newly proposed crime of ecocide should incorporate transitional justice mechanisms to address the urgent issue of environmental damage. Scholars have studied both definitional gaps and practical prosecutorial challenges related to the newly proposed crime of ecocide. Consequently, there are proposals for a more eco-centric definition, a clarification of mens rea requirements, forensic practices to aid evidence presentation for ecocide, and the addition of corporate criminal liability. However, even the foremost critics of the legal concept of ecocide support some movement toward the criminalization of environmental damage, albeit in different ways. Cognizant of the ongoing work in addressing challenges to the Rome Statute’s incorporation of ecocide, this post does not seek to propose more definitional changes. Instead, it takes a step further – considering ecocide as an existing crime in the Rome Statute in some form – to propose the deployment of complementary Transitional Justice Mechanisms (TJMs) to make the criminalization of ecocide significantly more effective.

This paper focuses on protection of the environment during armed conflict, specifically accountability gaps in the current international legal framework and options for change and improvement. It is limited to comments about individual criminal accountability for environmental crimes in armed conflict (i.e. not other forms of accountability and not environmental crimes in general). It examines the relevant provisions in the Rome Statute and scrutinizes the policies and practices of the International Criminal Court (ICC) in addressing environmental crimes. On this basis, the paper discusses options for enhancing accountability for environmental crimes during armed conflict, focusing on three key issues: 1) legal change and transformation; 2) the practice of relevant stakeholders within the ICC system, in particular the Office of the Prosecutor (OTP); and 3) strategies of actors outside the ICC system who seek to improve accountability options for environmental crimes in armed conflict. Despite the OTP making accountability for environmental crimes a priority area though its Policy Paper on Case Selection and Prioritisation (2016), the Prosecutor is yet to charge any individual with the commission of environmental crimes; indeed to make these crimes part of a formal investigation. The paper observes that one key challenge is that the (main) relevant provision (Article 8(2)(b)(iv)) in the Rome Statute is very narrowly constructed, making it difficult to successfully prosecute these crimes. However, the paper argues that there are other challenges at play, including structural and normative ones, which result that the ICC system tends to focus on a fairly limited set of physical integrity violations.The paper considers the various proposals for legal transformation, including the recent ‘ecocide’ proposal. It observes that there are serious obstacles to implementing these proposals, in part due to the structure of international criminal law. It then considers other options available to those who seek to advance accountability for environmental crimes during armed conflict, and concludes that these interests may, at least in the short term, best be served outside the ICC system, including by exploring domestic and universal
jurisdiction options.

Tremendous academic debate has ensued after the Stop Ecocide Foundation’s 2021 proposal to amend the Rome Statute in such a way that a new “fifth” international crime of “ecocide” would be included. This discourse has largely focused on problems with defining the crime, the practical challenges of its international acceptance, and whether international criminal law is even the appropriate avenue to address its concerns. What has received less attention is the implications of this potential recognition over other regimes of international law. This post inquires into one such emerging question, namely the question of whether the “responsibility to protect” (R2P) civilian populations from mass atrocities could be invoked in the context of environmental exigencies. In other words, this post explores an “environment-oriented R2P” that, if accepted, could justify the use of force. “Mass atrocities” under the existing R2P cover three of the four crimes already mentioned in the Rome Statute; the fourth crime is “aggression”, which would nevertheless justify States responding with force in self-defence.

Environmental destruction and exploitation of natural resources are some of the main causes of humanitarian conflicts, which are often international in scale. One instance was the crime of genocide conducted by Al-Bashir, which was triggered by exploitation of natural resources (resource war), causing pollution of vital water sources, and ending with conflict in Darfur, Sudan. This case is evidence that environmental destruction can be a driving factor for crimes against humanity. In response to this, the International Criminal Court (ICC) issued a Policy Paper, which sets out considerations to prosecute cases of environmental destruction and illegal exploitation of natural resources, which is referred to by some as ecocide. With growing demand of the international community, not only natural persons, but corporations are urged to be prosecuted before the ICC for ecocide. This research is normative legal research. It is intended to outline the current rise of demand for the ICC to prosecute cases of ecocide, whilst challenging the existing jurisdiction of the ICC based on the Rome Statute. This paper discusses whether the ICC have jurisdiction to adjudicate ecocide, expanding the Court’s jurisdiction to prosecute corporations, and crimes conducted in and/or by citizens of States that are not members of the Rome Statute, such as Indonesia. This paper concludes with constructive recommendations for businesses to start re-evaluating their business plans to put environment and human rights awareness into priority concern.

The field of international environmental criminality presents a very pressing threat on the global level. It, for example, encompasses harm toward wildlife, transboundary pollution and even harm toward indigenous people. Although, these examples represent only a fraction of potential environmental crimes on the international level. Despite its significance, international law still lacks a refined solution to this threat. The terms in question: “ecocide” and “international environmental crimes”, have been given many suggested definitions, but no single definition exists that has been agreed upon by the international community of States. Despite their importance as the central anchor of international environmental criminality, they stand without a clear definition and offer a wide legal grey area. This article highlights the dilemma that results from the lack of a clear definition of “international environmental crimes” and “ecocide”.

This essay presents an ideological and structural Marxist critique of the international environmental law concept of sustainable development, as embodied in the emerging international crime of ecocide. Ecocide is defined as “unlawful or wanton acts [that have] severe and either widespread or long-term damage to the environment.” As part of a larger movement to use international law to address the ecological crisis, there has been a push to amend the International Criminal Court’s statute to include ecocide as a stand-alone offense. The proposed amendment has generated much debate; however, the default position of these arguments is that it would be, on the whole, a good to criminalize ecocide. This essay begins from a different premise by arguing that criminalizing ecocide may paradoxically harm the environmental movement by re-inscribing the liberal ideologies and capitalist relations of production which ensure that “business goes on as usual.”

At the global level, voices are growing to criminalise severe environmental destruction as ecocide so that the International Criminal Court can punish. This social phenomenon suggests that international criminal law has been ineffective in protecting the environment and humanity at the time of planetary crisis. In parallel, however, only a small body of literature exists looking at how criminal justice is effective in preventing environmental damage at the domestic level. To address this research gap, this study first builds a green criminological perspective, which emphasises crimes of the powerful, and explains different types of ecocide. Then, it examines Korean environmental criminal law and demonstrates that high-level personnel in corporations have not been adequately held accountable for serious environmental destruction. As a viable option to strengthen criminal justice in the environment sector in Korea, it is argued that the Serious Accidents Punishment Act (SAPA) can be amended to hold business owners and other responsible persons accountable and liable for serious environmental crime caused by corporate activities.

This essay presents an ideological and structural Marxist critique of the international environmental law concept of sustainable development, as embodied in the emerging international crime of ecocide. Ecocide is defined as “unlawful or wanton acts [that have] severe and either widespread or long-term damage to the environment.” As part of a larger movement to use international law to address the ecological crisis, there has been a push to amend the International Criminal Court’s statute to include ecocide as a stand-alone offense. The proposed amendment has generated much debate; however, the default position of these arguments is that it would be, on the whole, a good to criminalize ecocide. This essay begins from a different premise by arguing that criminalizing ecocide may paradoxically harm the environmental movement by re-inscribing the liberal ideologies and capitalist relations of production which ensure that “business goes on as usual.”

With the increasing urgency of the gobal climate crisis, a growing number of States and other stakeholders – including parliamentarians, corporate investors, global youth, the UN Secrretary General and others- believe that ecocide should also be defined as a crime under internaitonal law, alongside genocide, crimes against humanity, war crimes, and the crime of aggression. This article explains that most serious enviornmental damage is not covered under existing definitions of international crime and demonstrates that there have been state support for an international crime of ecocide, such as from Vanuatu and the Maldives. It then identifies the challenges and implications of criminalizing ecocide at the ICC before closing upon the idea that there is an appetite for legal avenues to address environmental destruction and climate change and the conversation about the crime of ecocide is already having an impact, including amonst insurers, investors and businesses.

The United States military’s use of Agent Orange in Vietnam has left a
haunting legacy on the Vietnamese environment and people. While
military veterans have won legal battles for compensation, Vietnamese
and other Southeast Asian victims have been unsuccessful in their
legal claims. However, recent developments in the international
criminal field sparks new hope for these overlooked victims. This
Article argues that the reverberatory effects of codifying ecocide as
the fifth internationally recognized atrocity crime could promulgate
new avenues of relief for Vietnamese Agent Orange victims. Further,
this Article asserts that these avenues could become possible because
the use of Agent Orange in Vietnam would be officially recognized as
an atrocity crime backed by international customary law. As a result,
national courts with domestic statutes prohibiting ecocide could serve
as a potential forum of justice for victims. Lastly, the ecocide
movement could generate international political and diplomatic
pressure resulting in the United States finally providing reparations
for all Southeast Asian victims.

The protection of the environment and above all the climate and energy crisis that destroys human life is a topic of debate at an international level for the protection of ecocide. However, so far we do not have a concrete and perfect notion, given that the term ecocide was born from biological science and not from jurists. International criminal law and especially the International Criminal Court (ICC) once again takes on the leading role. A new article is needed to introduce ecocide to the other crimes already punished by the Court. The time is right and now ripe and the international necessity demands, with the help of international criminal law, to further evolve this branch of international law, to protect peoples, to punish those who destroy the environment both in the period of peace and war and above all the large companies and multinationals that are protagonists of this crime. The case is clear enough, the conduct is broad in our day but it certainly includes the mens rea a ignorance to be punished as a crime. Of course we also speak of restorative or restorative international justice for this crime because we have an ethical need and demand towards future generations to take clear positions for the protection and human life.

This symposium has shown that international environmental law (IEL) can play a significant role in strengthening the protection of the environment in armed conflict in two main respects. First, IEL can provide interpretative guidance for ambiguous international humanitarian law (IHL) rules protecting the environment,so that these rules can be read in accordance with environmental standards that have progressively emerged from IEL treaties and customary principles over the last decades. Second, IEL rules and practices can play a complementary role in filling gaps left by IHL. Indeed, several international agreements which aim at promoting international cooperation among states to protect the diverse components of the environment in peacetime — such as the fauna, the flora, biological diversity, freshwater resources, rivers, or seas — provide concrete mechanisms which can, to a certain extent, be transposed and implemented in the context of warfare. IEL could potentially have a similar impact on the development of international criminal law (ICL). Indeed, the interpretation of the provisions on war crimes (Section 1) and crimes against humanity (Section 2) of the Statute of the International Criminal Court (ICC)1 could also be guided by environmental legal instruments and their underlying rationale.2 Additionally, IEL could have a normative effect by shaping a new fifth ‘core’ international crime — ecocide — in a more ‘ecocentric’ direction (Section 3).3

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.

The recent proposal by an International Expert Panel to include the crime of ecocide in the International Criminal Court’s Rome Statute has raised expectations for preventing and remedying severe environmental harm through international prosecution in the Anthropocene. As alluring as this image is, however, we argue that ecocide prosecutions may be the most difficult, perhaps even impossible, in precisely the cases that the ICC would be most concerned with, namely, the gravest global incidents of environmental damage, especially those associated with planetary climate change. Here, we explore a series of questions about the Panel’s formulation of ecocide that resonate with longer debates around criminalizing environmental harm but take on new dimensions amidst global climatic disruption and after twenty years of ICC trials. Ecocide must thus contend with the hard lessons learned concerning the ICC’s limitations in realizing justice in a fraught international political context and also fundamental challenges to knowledge arising from the dynamic ecology and uncertainty of the Anthropocene. The proposed amendment, if adopted, risks ineffective prosecutions or perverse outcomes for justice and even the environment itself. This risk, however, may characterize not just the Panel’s proposal but perhaps any effort to prosecute ecocide internationally in the Anthropocene.

Deep, human induced, environmental changes become a global danger for the whole population. A form of reaction to those dangers as well as possibility of reversing the risks can be a deeper insight into the legal instruments of environmental liability – including the criminal liability for environmental harm. While national legal systems seem to succeed in introducing instruments of criminal liability of environmental crimes, the international law seems not to follow this trend. It is even hard to specify what constitutes the environmental crime according to international law. The evolution of international law in this field has shown many and unsuccessful attempts to bring environmental crimes into the catalogues of crimes recognized by international law. The most promising fora for identification of international crimes against environment seems to be the International Criminal Court (ICC). Potential use of ICC for identification and effective realization of criminal liability of environmental damage has however its limits.

In 2021, with their proposals of a new definition of ‘ecocide’, the Independent Expert Panel for the Legal Definition of Ecocide (‘IEPLDE’) and the Promise Institute for Human Rights (‘UCLA’) Group of Experts reignited the discussion on expanding the International Criminal Court’s (‘ICC’ or ‘Court’) jurisdiction over the gravest instances of environmental degradation. The proposed definitions form part of the broader campaign towards the international criminalisation of ‘ecocide’ and its prosecution before the ICC. This discussion challenges such ambitions, arguing that, in its current form, the Court would be unable to produce environmentally-satisfactory results. It underscores that the human-centric fundaments of modern international criminal law (‘ICL’) prevent the ICC from fusing different approaches and values governing international environmental law (‘IEL’) into its institutional design. A middle-ground is proposed instead: rather than surrendering the pursuit of environmental justice before the ICC or risking a ‘symbolic’ revolutionisation, the focus should be re-oriented on maximising the ‘environmental’ potential of the current statutory framework. This approach aligns with the strive towards greater ‘internationalisation’ of international courts and tribunals, encouraging more eager analysis of their statutory provisions from multiple perspectives and in the context of a variety of cross-sectoral international law norms, objectives, principles, and approaches. Two possible directions for progression in that regard are proposed: (i) more resourceful translation of environmental realities into the substantive prohibitions of war crimes and (ii) more active reliance on and application of a ‘greened’ scope of Articles 21(3) and 7(1) of the Statute.

One of the most innovative provisions of the Rome Statute of the International Criminal Court (ICC) concerns victims’ rights to participate in the proceedings and to have the harm suffered repaired. The definition of ecocide proposed by the Independent Expert Panel (IEP) convened by the Stop Ecocide Foundation aims to protect the environment as an end in itself. As such, the definition seems to acknowledge the victimization of nonhumans. Bringing to the fore the different meanings associated with the term victim in the ICC, including the different interpretations of the criteria provided for by the definition of the term victim under Rule 85(a) of the ICC Rules of Procedure and Evidence (RPE), this ICD Brief argues that the existing legal framework allows for the recognition of nonhumans as victims of ecocide. This Brief attempts to explain and discuss how the environment can be recognized as a natural person.

An expert panel formed by Stop Ecocide International has proposed an amendment to the Rome Statute of the International Criminal Court which, if adopted, would create a new international crime of ecocide. However, the panel’s proposal is compromised throughout by anthropocentrism in the sense that it places too much emphasis on the needs of humans and not enough on the needs of the environment. It is argued here that this anthropocentric dilution of ecocide resulted from the panel’s lack of standing, influence and confidence on the international stage. Its weakness pushed it towards a strategy of producing something palatable to states in the hope of securing their support. That strategy will prove futile. The article considers whether other actors, such as the international courts or experts working in different contexts, might be better placed to design the blueprint for ecocide. It concludes, tentatively, that the International Law Commission remains the architect best positioned to set out a bold vision of ecocide.

Criminalization itself is related to limiting human rights and denying and violating them, therefore interfering with people’s rights and freedoms and using power to limit them requires justification. However, the attempt to criminalize ecocide is the most important message of this treatise, the definition of the crime of ecocide, the material and spiritual elements, and what is the position of ecocide in the definition of the crime if there is human or cultural damage. Governments and powerful groups and powerful companies are the main cause of environmental destruction and damage to the environment But because the authority to criminalize is in the hands of the governments and the relevant laws are established and approved by the governments, and also because of the influence and connections between the groups of power and wealth and especially the multinational companies with the governments. Actually, the possibility of criminology in the field of environmental damage is very limited. In an analytical and descriptive way, the authors deal with the process of drafting and criminalizing and approving ecocide in France and Belgium. The authors also examine the responsibility of companies and governments and their role in the criminalization of ecocide. The authors examine if the new legal and ethical restrictions help slow the progress of Earth’s catastrophes ahead. Also with the criminalization of ecocide, which losses are prevented or which values are passed.

Environmental damage is a challenge faced in realizing environmental sustainability. Exploitation of the environment that causes the value of the benefits of an environment to be lost is considered a crime that robs people of the rights they enjoy from their existence. Ecocide is defined as a form of crime against the environment by individuals or entities/organizations, which causes massive damage to the environment. The characteristics of ecocides consist of serious, large-scale, and long-term damage that has been regulated in international and national legal settings, but the term ecocide is still struggling to be recognized. The characteristics of these ecocides will be related to climate change which is a relevant discussion among the international community. Climate change is a natural phenomenon that cannot be avoided but the risks can be minimized by increasing the resilience of nature. Natural resilience is closely related to natural quality, so ecocides will become one of the obstacles to efforts to delay the impact of climate change. Indonesia is known as an agricultural country and a maritime country because most Indonesian people’s livelihoods are farmers and fishermen. Therefore, Indonesia is a developing country that is highly dependent on natural resources. If the value of the benefits of an environment is damaged, then the rights that should be enjoyed from the environment are taken away, it will become a prolonged problem in the aspects of health, economy, and aesthetics. Based on these circumstances, efforts to research on ecocides are needed so that policy makers better understand that ecocides are recognized by international law and its application in Indonesia.