Sarah Chaoui, MJLST Staffer
“The immense destruction brought about by indiscriminate bombing, by large-scale use of bulldozers and herbicides is an outrage sometimes described as ecocide, which requires urgent international attention.”[i]
– Olof Palme, Former Prime Minister of Sweden, at the UN Conference on the Human Environment (1972).
The term ecocide was first coined at the Conference on War and National Responsibility by Arthur W. Galston, a professor and biologist who first identified the defoliant effects of the chemicals that later developed into Agent Orange.[ii] Gaston characterized ecocide as the massive destruction and damage of ecosystems and proposed an international agreement to ban ecocide at the conference.[iii] In 2021, an expert panel convened by the Stop Ecocide Foundation proposed the following legal definition of ecocide: “For the purposes of this Statute, ‘ecocide’ means unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.” [iv] While ecocide is not yet universally recognized as a crime under international law, there is growing advocacy to establish it as a fifth international crime, along with genocide, crimes against humanity, war crimes, and the crime of aggression.[v]
Recognizing ecocide as a crime is important for many reasons. First, it would create accountability for deliberate or negligent environmental destruction both in the context of armed conflicts and in times of peace.[vi] In theory, the proposed crime would allow responsible parties to be prosecuted for large-scale environmental harms resulting from state actions such as mass bombings or other actions resulting in oil spills and extensive air pollution.[vii] Second, the criminal penalties associated with committing the proposed crime would deter corporations and government actors from engaging in harmful practices and potentially reduce their overall negative environmental impact.[viii] Third, it would be an additional measure to protect biodiversity and ecosystems necessary for human and animal survival.[ix] Finally, the recognition of ecocide as a crime would legitimize and emphasize the severity of environmental harm, especially as we are in the midst of a climate crisis.[x]
While an international crime of ecocide does not yet exist, several countries have an existing or proposed national crime of ecocide. These countries include Ecuador, Vietnam, Uzbekistan, and France, among others.[xi] According to the co-founder and executive director of
Stop Ecocide International, interest in criminalizing ecocide has grown dramatically in recent years, largely because of the broad legal definition that focuses on the environmental consequences rather than specific activities.[xii] As more countries consider adopting domestic laws criminalizing environmental destruction, have reinforced the need for an ecocide crime at the international level.[xiii]
Despite the growing popularity of domestic ecocide laws, there are several barriers to establishing ecocide as an international crime. There is first the legal barrier of amending the Rome Statute, the international treaty establishing the International Criminal Court.[xiv] The legal process for making ecocide an international crime would require a Head of State to propose an amendment to the Rome Statute and submit it at least three months before a meeting of the States Parties to the Rome Statute.[xv] If there is a simple majority at that meeting, the amendment can be considered and adopted with the agreement of at least ⅔ of the member states.[xvi] However, there will likely be resistance or opposition from industrialized countries whose economies rely heavily on resource extraction and polluting industries.
There are also possible jurisdictional issues. The ICC can only prosecute crimes committed by nationals of states that are parties to the Rome Statute.[xvii] Non-signatory states, such as the United States, China, and India, also three of the world’s largest polluters[xviii], would not fall under ICC jurisdiction. There is, however, an all-inclusive form of jurisdiction known as “universal jurisdiction” that allows national courts to investigate and prosecute an entity suspected of committing a crime “anywhere in the world regardless of the nationality of the accused or the victim or the absence of any links to the state where the court is located”.[xix] More broadly, because ecocide often involves numerous actors across various jurisdictions, determining the accountable jurisdiction or party can be particularly difficult. While these challenges are significant, growing global awareness of environmental crises may drive the necessary legal and political solutions to address them. Criminalizing ecocide is an essential step toward robust legal environmental protections and would mark a cultural shift that legitimizes the severity of environmental harm. As Valérie Cabanes, a French lawyer and proponent of ecocide as an international crime aptly stated, “[b]y destroying the ecosystems on which we depend, we are destroying the foundations of our civilization and mortgaging the living conditions of all future generations. “This is no less serious than war crimes, crimes against humanity, or the crimes of genocide or aggression. As well as being a major issue of global socio-environmental justice, is it not ultimately the survival of the human species that is at stake?”[xx] Recognizing environmental destruction as a legitimate crime reminds us that the environment is our shared habitat and therefore our shared responsibility; its deliberate destruction should be treated as a matter of utmost international importance.[xxi]
Notes:
1 Sean Fleming, What is ecocide and which countries recognize it in law?, World Econ. F.
(Aug. 30, 2021), https://www.weforum.org/stories/2021/08/ecocide-environmental-harm-international-crime/
2 https://ecocidelaw.com/history/ (click on “1970s”, then click “read more” on “1970 First coining of the term ecocide”) (alternative source: https://sas-space.sas.ac.uk/4830/1/Ecocide_research_report_19_July_13.pdf, pg. 4)
4 June 2021: historic moment as Independent Expert Panel launches definition of ecocide, Stop Ecocide Int’l,
https://www.stopecocide.earth/legal-definition
5 See supra note 1; see generally How the Court works, Int’l Crim. Ct., https://www.icc-cpi.int/about/how-the-court-works
6 Rachel Killean, The Benefits, Challenges, and Limitations of Criminalizing Ecocide, IPI Glob. Observatory (Mar. 30, 2022), https://theglobalobservatory.org/2022/03/the-benefits-challenges-and-limitations-of-criminalizing-ecocide/#:~:text=As%20environmental%20harms%20can%20be,once%20a%20crime%20was%20introduced (stating that the most obvious advantage of ecocide as a crime is the “expansion of international accountability for enviornmental harms.”)
8 See Rebecca Hamilton, Why Criminalize Ecocide? Experts Weigh In, Just Security (Sept. 23, 2024),
9 World Econ. F., The Global Risks Report 2024, p. 38 (Jan. 10, 2024), https://www3.weforum.org/docs/WEF_The_Global_Risks_Report_2024.pdf
(explaining that biodiversity loss is a larger global challenge than previously thought).
10 United Nations, The Climate Crisis—A Race We Can Win (2020), https://www.un.org/en/un75/climate-crisis-race-we-can-win
11 See generally Ecocide / serious environmental crimes in national jurisdictions, Ecocide Law, https://ecocidelaw.com/existing-ecocide-laws/ (last visited Nov. 24, 2024).
12 Isabella Kaminski, Growing number of countries consider making ecocide a crime, The Guardian
(Aug. 26, 2023), https://www.theguardian.com/environment/2023/aug/26/growing-number-of-countries-consider-making-ecocide-crime
14 See Resource library, Int’l Crim. Ct., https://www.icc-cpi.int/resource-library#:~:text=The%20Rome%20Statute%20of%20the%20International%20Criminal%20Court%20is%20the,and%20judicial%20assistance%2C%20and%20enforcement.
15 FAQs–Ecocide & the Law, Stop Ecocide Int’l, https://www.stopecocide.earth/faqs-ecocide-the-law#:~:text=A%20Head%20of%20State%20(or,and%20didn’t%20make%20it?
17 See generally Understanding the International Criminal Court, Int’l Crim. Ct.
https://www.icc-cpi.int/sites/default/files/Publications/understanding-the-icc.pdf
18 Which countries are the world’s biggest carbon polluters?, Climate Change News (May 17, 2021), https://climatetrade.com/which-countries-are-the-worlds-biggest-carbon-polluters/#:~:text=Below%2C%20you’ll%20discover%20the,792%20bn%20tons%20of%20CO2
19 Amnesty Int’l, Universal Jurisdiction: Questions and Answers Concerning Universal Jurisdiction (2001), https://www.amnesty.org/en/documents/ior53/020/2001/en/
21 Stephanie Safdie, Ecocide–Definition and Examples, Leaf
(updated Nov. 7, 2023), https://greenly.earth/en-us/blog/ecology-news/ecocide-definition-and-examples