On Sept. 9, three Pacific Island states – Vanuatu, Fiji, and Samoa – announced their submission of a formal proposal to amend the International Criminal Court’s statute to make ecocide an international crime. It bears noting at the outset: Amending the Rome Statute is, politically, a Herculean task so no one should expect to see an international prosecution for ecocide anytime soon. However, the advent of this submission by states who have been at the forefront of pushing international law to grapple with the realities of climate change spotlights a vital question:
What do engaged stakeholders imagine that the international criminalization of ecocide can achieve?
International criminal law has various goals including deterrence, retribution, expressivism, and the creation of an accurate historical record. It also, and especially since the advent of the International Criminal Court, has the ability to capture the imagination of the global public to a degree that vastly outstrips its actual resources. One negative consequence of this misalignment is the risk that the international criminalization of any behavior raises expectations that exceed what international criminal law can provide.
With these realities in mind, it is an opportune moment to ask what those closest to the efforts to make ecocide an international crime believe that criminalization can achieve. And, to the extent that any consensus emerges, to begin the work of connecting legal theories to actionable outcomes for those most affected by environmental destruction.
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Daniel Bertram, PhD candidate at the European University Institute; has closely followed the criminalization of ecocide for the past three years in the context of his doctoral project:
In an increasingly fractured international normative topography, the resurrection of ecocide has engendered unlikely alliances. From Pope Francis to Greta Thunberg, from Indigenous environmental defenders to white collar lawyers, from critical geographers to doctrinal legal experts – ecocide’s rallying cry has found resonance in the most diverse communities of thought and practice.
Where does this widespread excitement stem from? Stakeholders have imbued the ecocide debate with a range of different agendas and expectations. Environmentalists are hoping to co-opt the symbolic and material power of (international) criminal law in their fight against ubiquitous ecological destruction. Advocates of international criminal justice are hoping to inject the flailing project with new relevance. And Pacific Island states are hoping to avert – or at least morally condemn – their looming disappearance amongst rising sea levels and devastating cyclones.
To what extent are these projections justified? With Vanuatu, Fiji, and Samoa’s proposal to amend the Rome Statute officially on the table, the informed public will soon find out. Much will depend on states parties’ willingness to move the needle on ecocide – following up on the formal proposal with swift and constructive deliberations, adopting an ambitious definition that pays heed to the voices of those most directly affected by environmental violence and injustice, and widespread ratification, implementation, and enforcement of an eventual amendment.
These are a lot of “ifs” along ecocide’s path, and many have been skeptical that governments have a genuine interest in passing a truly meaningful amendment. But most commentators ultimately share a deep commitment to the power of law as a force for transformative change. International criminal law’s traditional raison d’être – a utilitarian faith in the preventive effect of international criminal prohibitions – continues to pervade discussion about ecocide’s value and purpose.
But perhaps this is the wrong way of thinking about the topic altogether. In her thoughtful 2002 essay on the “sense and sensibility” of international criminal law, Immi Tallgren denounces the project’s utilitarian justifications as utopian and (self-)deceptive. As she writes: “The seemingly unambiguous notions of innocence and guilt create consoling patterns of causality in the chaos of intertwined problems of social, political, and economic deprivation surrounding the violence.”
Similarly, speculating what ecocide can (or cannot) achieve remains an exercise in self-deception, although a necessary and perhaps inevitable one. Instead of highlighting the putative utility of any particular future scenario, then, would it not be more honest to let go of such prospective calculations?
Doing so would force us to admit that ecocide’s criminalisation is more of an stubborn exercise of hope than a rational policy. And precisely here is where, ironically, ecocide’s true value might lie – in its insistence on a politics of hope in the face of the debilitating and paralyzing forces of the Anthropocene.
Naima Fifita, Founder, Moana Tasi Project; Executive Director, Institute for Climate and Peace (@ClimateAndPeace); Member of The COSIS Secretariat:
The recent submission by Vanuatu, Fiji, and Samoa to the International Criminal Court to recognize ecocide as a crime marks a pivotal moment in the evolution of international environmental law, enhancing its effectiveness by creating a legal mechanism to hold individuals such as heads of large polluting companies, or heads of state accountable for large-scale environmental destruction. It would create the legal basis to pursue justice against those who profit from the unsustainable exploitation of the environment, regardless of their position of power. A long-term potential consequence of the ICC’s ecocide submission is the promotion of a shift from the “polluter pays” principle to the “polluter no longer pollutes.” This shift would have profound global implications, advancing the realization of the right to a healthy environment by focusing on preventing environmental harm rather than merely compensating for it.
For frontline communities, especially in the Pacific, this is a powerful step toward justice. These nations have long been at the forefront of climate advocacy, despite being among the least responsible for global emissions. Pacific Island nations have consistently demonstrated leadership in finding legally innovative pathways, and this push to criminalize ecocide continues that tradition, highlighting their unwavering commitment to climate justice and accountability.
As a Tuvaluan, I am particularly heartened by this progress and, with the recent advisory opinion rendered by ITLOS and the forthcoming advisory opinion from the ICJ, sense the emergence of unstoppable momentum for climate justice, reflecting the global community’s growing intolerance of environmental crimes. This is a clear signal that the international legal framework is beginning to match the urgency and moral imperative of protecting our planet for future generations.
Rebecca Hamilton (@bechamilton), Professor of Law at American University, Washington College of Law, and 2024 U.S. Fulbright Scholar at the Islands and Small States Institute:
In a forthcoming work, I argue that the primary benefit to be derived from the international criminalization of ecocide would be the expressive message that the International Criminal Court sends when it investigates a particular type of behavior. Because of this, my view is that advocates of criminalizing ecocide must invest time in aligning any proposed definition of ecocide with the message that we want to send about what international law stands for when it comes to environmental protection.
I believe this is the moment to move international law from colonial understandings of nature as a resource that can be extracted for human benefit, and beyond tired anthropocentric versus ecocentric debates, to instead embrace an approach emerging from the field of human rights and the environment, consistent with Earth Sciences, and with a long history across Indigenous epistemologies, which recognizes the indivisibility of humans and our natural world. This means embedding, as a normative starting point, the inseparability of humans and nature within the ecocide definition.
Rather than sending the message that environmental destruction can be weighed against, or traded for, significant human gain, ecocide should recognize that even as humans do and must use nature for our own benefit, severe and widespread or long-term harm to the environment also, and necessarily, entails harm to human communities.
Kevin Jon Heller (@kevinjonheller), Professor of International Law and Security at the University of Copenhagen’s Centre for Military Studies and currently serves as Special Advisor to the ICC Prosecutor on War Crimes:
I wholeheartedly support making ecocide the fifth international crime, because human-caused environmental harm poses an existential threat to all life on the planet. But I categorically reject the definition of ecocide proposed by the Stop Ecocide Foundation’s Independent Expert Panel (IEP). That definition is fatally flawed, because it permits humans to cause any amount of environmental damage through lawful activity – even damage that is severe, widespread, and long-term – as long as that damage is not “clearly excessive in relation to the social and economic benefits anticipated.” The IEP’s definition is thus irredeemably anthropocentric, privileging the needs of humans over the well-being of the planet. We need a genuinely ecocentric definition of ecocide at the international level, one that views environmental protection as an end in itself — not a watered-down definition that, in practice, will be little more than a fig leaf for capitalist exploitation of the planet’s non-human resources.
Kate Mackintosh (@Katemackintosh2), Executive Director, UCLA Law Promise Institute Europe, and Deputy Co-Chair of the Independent Expert Panel on the Legal Definition of Ecocide:
Creating an international crime of ecocide sends the message that severe destruction of our environment is among “the most serious crimes of concern to the international community as a whole,” in the words of the Rome Statute of the International Criminal Court. This expressive value alone is significant, and can be part of a wider shift in understanding the essential relationship between our well-being and that of the rest of nature.
More concretely, the definition of ecocide proposed on Sept. 9 by Vanuatu, Fiji, and Samoa introduces an ecocentric basis for prosecution, outside the context of armed conflict, that the Statute currently lacks. The existing statutory crimes of genocide and crimes against humanity can potentially encompass peacetime environmental damage – although no such case has yet been prosecuted at the Court – but only as a means or result of causing harm to humans. If a sizable population is forcibly displaced by destroying crops and poisoning wells, for example, that might be charged as a crime against humanity. If those acts are accompanied by an intent to destroy a national, ethnic, racial, or religious group, they could be charged as genocide. The Court’s Prosecutor is developing a policy on how to encompass such environmental harm in the work of his office. But it will never be able to deal with environmental destruction that does not have the requisite (and immediate) effect on a human population. The important contribution of the proposed definition is to permit acts with substantial likelihood of causing severe and either widespread or long-term damage to the environment to be prosecuted per se, without the requirement to prove human harm. (Of course, to return to my first point, the very fact of introducing such a crime into the Rome Statute reflects a deeper understanding that destruction of non-human elements of nature inevitably affects us too.)
Looking to impact, I believe a crime of ecocide can serve as a meaningful deterrent, especially with regard to corporate actors. Mass environmental damage is generally a commercial affair, and ecocide prosecutions might be expected to target senior corporate executives. The personal risk of being indicted for an international crime, along with the risk to share price and company reputation, are likely to have significant impact on executive decision-making, and avert the most destructive courses of corporate action. For this reason, the deterrent function of a crime of ecocide may be greater than that of the existing crimes, whose perpetrators are more commonly political actors, driven by less “rational,” more ideological goals.
Dr. Marcos A. Orellana (@SRtoxics), U.N. Special Rapporteur on toxics and human rights:
Global recognition of the right to a clean, healthy and sustainable environment by the U.N. General Assembly in 2022 sets a landmark in the evolution of our shared understanding of the fundamental role of the environment as the basis of human civilization. Protection of the environment thus enters the catalog of values that are indispensable for society and the realization of other fundamental rights. A natural corollary of our enhanced awareness regarding the environment’s foundational role is the need to strengthen the various legal tools that protect it. Criminal law cannot be absent from those efforts, both at the national and international levels, since this body of law reflects the need for protection of what ultimately makes life in society possible. In this reading, the articulation of ecocide as a crime at international law reflects our increased human consciousness on the environment’s foundational role in society.
Darryl Robinson (@DarrylRobs), Professor at Queen’s University, Faculty of Law (Canada), specializing in international criminal justice, and author of Ecocide — Puzzles and Possibilities:
A crime of ecocide – whether adopted internationally or in national systems – is a welcome signal that egregious environmental wrongdoing is as grave a global threat as other serious international crimes.
Recognizing a crime of ecocide is only one small component of the many reforms urgently needed to address the ongoing environmental crisis. The needed web of reforms will be social, cultural, political, technological, economic, and legal. Thus, a crime of ecocide does not purport to be the most important step, or second most important, or even the tenth. It may however help emblazon in the collective consciousness that environmental irresponsibility is not a mere regulatory infraction, but a crime of highest stigma and gravity. The crime of ecocide can work synergistically with many other reforms, including strengthening environmental laws everywhere.
IMAGE: The process of shallowing after the explosion of the Russian-controlled Kakhovka hydroelectric power plant takes place on June 13, 2023 in Novovorontsovka, Kherson Oblast, Ukraine. (Photo by Dmytro Mykhailov/Global Images Ukraine via Getty Images)
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