Ecocide: A New Avenue for Climate Justice?
By Eleonora Raus*
Introduction
The International Criminal Court’s (ICC’s) core crimes include genocide, crimes against humanity, war crimes, and crimes of aggression. They “affirm that the most serious crimes of concern to the international community as a whole must not go unpunished”. Historically, international criminal law has been silent on the most serious environmental crimes, resulting in severe environmental harms going unpunished to the detriment of humans, nonhumans, ecosystems, climate systems, and the international community as a whole. Recently, however, there have been efforts to advance accountability for environmental crimes in international law, such as when the Office of the Prosecutor launched a new policy initiative for environmental crimes under the Rome Statute. Another exciting development happened on the 9th September 2024, when Vanuatu, Fiji, and Samoa formally proposed to criminalise ecocide under international criminal law. This blog post responds to the Pacific Island States’ proposal and offers some reflections on whether ecocide creates an alternative avenue for achieving climate justice.
Defining Ecocide
The Pacific Island States’ proposal relies on a definition of ecocide decided by the Independent Expert Panel for the Legal Definition of Ecocide (IEP) in 2021. The IEP defines ecocide as “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”. For example, Russia might have committed ecocide in Ukraine on numerous occasions, such as when it allegedly destroyed the Kakhovka hydroelectric power plant in June 2023, causing approximately half a million hectares of protected natural habitats to flood. Israel’s destruction of roughly 40% of Gaza’s agricultural land in the ongoing Israel-Hamas war may be another possible case of ecocide.
Conduct must satisfy two thresholds to amount to the IEP’s definition of ecocide. The first threshold requires that there is a substantial likelihood that the conduct (an act or an omission) will cause severe and either long-term or widespread damage to the environment. Moreover, the IEP’s definition requires the conduct to satisfy a second threshold, which requires proof that the conduct is unlawful or wanton. Thus, the IEP’s definition could be considered as stringent, as the conduct must meet three elements of the crime, i.e. the conduct must create a substantial likelihood of (1) severe and (2) long-term or widespread environmental damage, and (3) the conduct must be unlawful or wanton.
Yet, a closer look at the IEP’s definition suggests that it might not be too stringent and broad enough to allow the prosecution of conduct that causes environmental damage associated with climate change. To satisfy the first threshold, the conduct does not need to cause severe and long-term or widespread environmental damage. Instead, it suffices that there is a substantial likelihood that the conduct will cause damage. Thus, the IEP’s definition of ecocide is a crime of endangerment rather than material result. Indeed, the IEP states that “culpability for the crime of ecocide attaches to the creation of a dangerous situation, rather than to a particular outcome.” Numerous crimes in the Rome Statute attach culpability to the creation of a dangerous situation, such as genocide under Article 6. Endangerment as culpability means ecocide prosecutions have a better chance of protecting the environment and future generations in the long-term before irreversible environmental damage occurs.
Furthermore, the IEP clarifies that the environment encompasses “the earth, its biosphere, cryosphere, lithosphere, hydrosphere and atmosphere, as well as outer space”. Given this specific yet multifaceted meaning of the environment, there is a good chance that the IEP’s definition of the environment would include climate systems.
The second threshold requires that the conduct is unlawful or wanton. The unlawful or wanton conduct can be either an act or omission. This is promising for prosecuting ecocide associated with climate change, as omissions to reduce greenhouse gas emissions are a significant driver of climate change. Additionally, the IEP states that cumulative acts or omissions can amount to conduct. Seeing as climate change is not just caused by greenhouse gas emissions today, but cumulative emissions over long periods of time, it might be appropriate to prosecute cumulative acts or omissions in the climate change context.
The “unlawful” qualifier captures environmentally harmful conduct that is already prohibited in international law. Moreover, “unlawful” includes national illegality, particularly conduct that is illegal under domestic criminal law. National illegality, therefore, broadens the scope for conduct which can satisfy the IEP’s second threshold.
“Wanton” deviates from the default mens rea under Article 30 in the Rome Statute, which requires “an awareness of a near certainty that the consequences will occur”. The IEP assesses that “the Article 30 default mens rea for such consequences was too narrow and would not capture conduct with a high likelihood of resulting in severe and either widespread or long-term damage to the environment”. Rather, wanton means “either intending or in reckless disregard of prohibited consequences”, which might be easier to prove to a criminal standard compared to demonstrating “an awareness of a near certainty that the consequences will occur”.
Finally, the second threshold “draws upon environmental law principles, which balance social and economic benefits with environmental harms through the concept of sustainable development”. Special Advisor to the ICC Prosecutor on War Crimes, Kevin Jon Heller, warns that including the proportionality test in the IEP’s definition makes the crime of ecocide “irredeemably anthropocentric, privileging the needs of humans over the well-being of the planet” and does not view “environmental protection as an end in itself”. Precisely how the ICC would apply environmental law principles, such as sustainable development and proportionality, to ecocide cases remains to be seen.
The Rome Statute’s Amendment Procedure
According to a press release by Stop Ecocide International, the ecocide proposal involves an amendment to Article 5 of the Rome Statute, which sets out the core international crimes. Article 5 has only been amended once before when the Kampala amendments on the crime of aggression entered into effect in 2018. Vanuatu first proposed including ecocide as a core crime under Article 5 at the Assembly of State Parties to the Rome Statute in 2019, and formally proposed the amendment in September 2024 together with Fiji and Samoa. The Pacific Island States’ proposal also includes adding ecocide as a separate article in the Rome Statute: Article 8.
The proposal must follow the amendment procedure set out in Article 121 of the Rome Statute to enter into effect. After being approved by the Working Group on Amendments, the ecocide amendment must be considered at the next Assembly of State Parties to the Rome Statute of the ICC where it must achieve ⅔ majority vote in the plenary session to succeed.
However, even if the ecocide amendment receives a majority vote in the plenary session, the ICC will only have jurisdiction to prosecute ecocide in States that ratify the amendment. Only 45 States ratified the amendments on the crime of aggression, raising concerns that not enough States will ratify the ecocide amendment. There could be a particular risk of low ratification rates in today’s political climate. As David Bertram suggests, it might be difficult to expand “liberal international criminal justice” to protect the environment in an “increasingly illiberal geopolitical landscape”.
That said, a recent IPSOS survey suggests that people in the world’s largest economies support criminalising environmental harm; 72% of people surveyed in G20 countries agree with criminalising government or corporate acts that cause severe damage to the environment or climate. Additionally, there has already been political support for criminalising ecocide. The EU came close to criminalising ecocide in the new Environmental Crime Directive that entered into force earlier this year, and the Democratic Republic of Congo became the first African nation to officially endorse the Pacific Island States’ amendment in October 2024.
What Does Ecocide Mean for Climate Justice?
The Pacific Island States’ ecocide proposal arises in a wider debate about climate change obligations and climate justice. Climate justice originates from the environmental justice movement, which recognises that marginalised individuals and communities are disproportionately affected by environmental risks, including climate change. Lower income countries are generally more vulnerable to the effects of climate change, despite contributing the least to historic and present greenhouse gas emissions. For example, rising sea levels are forcing Pacific Islanders to leave their homes and seek refuge elsewhere, such as Tuvaluans who have migrated to Australia as climate refugees. Climate justice is also concerned with protecting future generations, as they are acutely vulnerable to the effects of climate change despite contributing the least to its causes.
On the one hand, the ecocide proposal might open another avenue for achieving climate justice. The IEP states that the crime of ecocide “build[s] on the existing crime of severe damage to the environment during armed conflict, whilst reflecting the fact that today, most severe environmental damage occurs during times of peace, a situation that currently falls outside the jurisdiction of the ICC." Ecocide prosecutions might reduce the impunity gap for severe environmental harm connected to one of the most pressing environmental challenges in peacetime: climate change. If an individual is found guilty of ecocide, they could face the criminal sanctions set out in Article 77 of the Rome Statute, including life imprisonment, fines, and forfeiture of proceeds, property and assets.
Furthermore, criminalising ecocide might narrow the corporate accountability gap for environmental harm. Kate Mackintosh suggests that ecocide prosecutions could threaten companies’ reputations and share prices, as well as pose personal risks to corporate executives. Thus, ecocide might not only punish corporate environmental crime but also deter corporate actors from acting in ways that create a substantial likelihood of severe and long-term or widespread environmental harm. Seen in this way, the ecocide proposal supports the existing due diligence principle in international environmental law. This being said, another amendment needs to be added to the Rome Statute before ecocide can become enforceable against corporate executives.
On the other hand, it is unclear if environmental damage resulting from climate change would satisfy the IEP’s definition in practice. For example, global temperature increases might be too general to constitute ecocide, albeit they are the severe, long-term, and widespread effects of greenhouse gas emissions. In fact, making ecocide an overly inclusive crime would be undesirable, as it might become unenforceable in practice. Poor enforceability would not just harm the credibility of ecocide as an international crime, but the integrity of international criminal justice as a whole. An overly inclusive definition could also sanction desirable behaviour particularly for developing countries, such as development activities with overwhelming cultural, social and economic benefits.
Moreover, Stephen Hockman KC highlights it might be challenging to satisfy all the thresholds in the IEP’s definition to a criminal standard. For instance, it is not yet clear how causation can be proven to a criminal standard for environmental harm and greenhouse gas emissions. In addition, at the moment it is uncertain how unlawful or wanton conduct can be pinned to an individual, as government bodies and corporations generally contribute collectively to climate change. That said, the upcoming ICJ Advisory Opinion on State obligations for climate change will hopefully advance our understanding of legal causation and climate change.
Another potential challenge for prosecuting ecocide resulting from climate change is showing that the behaviour was unlawful. For example, failing to meet Nationally Determined Contributions under the Paris Agreement might not constitute an unlawful act, although the upcoming ICJ Advisory Opinion might provide some clarity on this.
Finally, applying environmental principles, such as proportionality, to ecocide might tip the balance in favour of environmentally harmful activities over protecting the environment and vulnerable people from the effects of climate change. As discussed earlier, “wanton” means “reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated”. Additionally, the IEP’s definition draws upon environmental law principles, which balance social and economic benefits with environmental harms through the concept of sustainable development. Seeing as economic growth and development are strongly associated with burning fossil fuels, it could be argued that the environmental damage associated with greenhouse gas emissions from burning fossil fuels is not clearly excessive of the anticipated social and economic benefits. Nevertheless, growing the economy through emitting greenhouse gases has significant costs, namely violating human rights, risking people’s health and lives, and causing irreversible environmental damage. It remains to be seen how the ICC will apply environmental law principles to ecocide prosecutions.
Conclusion
To conclude, Vanuatu, Fiji, and Samoa’s ecocide proposal potentially opens an exciting new avenue for achieving climate justice in public international law. This alternative is desirable given that many States are taking inadequate climate action despite the pressing nature of climate change. Whether the ecocide proposal will succeed at achieving climate justice largely depends on the exact definition that will be adopted and State support for the proposal during the Rome Statute’s amendment procedure.
Many thanks to Victoria Luján for sharing her insights on ecocide and climate justice.
*Eleonora Raus has completed a Bachelor of Laws at University College London and a Master of Laws at the London School of Economics & Political Science. Her interests lie in human rights, environmental law and public international law. She is a member of WYCJ’s Legal Advocacy Taskforce.