As climate scientists continue to warn the world that the climate change crisis is worsening each day, several activist groups are pushing to include “ecocide” in the Rome Statute as the fifth international crime.[1] The International Criminal Court (“ICC”) has Article 5 jurisdiction to prosecute “the most serious crimes of concern to the international community as a whole.”[2] If made an international crime, the ICC would prosecute ecocide alongside genocide, war crimes, crimes against humanity, and crimes of aggression.[3] But what is ecocide? And why should it be included?
Ecocide has been defined in various ways across the legal community.[4] There has been no true standard definition set, creating complications for prosecution over the last fifty years.[5] Ecocide was introduced to the international legal community after the release of Agent Orange in the Vietnam War.[6] While several definitions have been thrown around by different legal scholars, the definition proposed to the ICC comes from the International Expert Legal Panel (“IEP”), which was convened by the Stop Ecocide Foundation.[7] The IEP defines ecocide as the “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.”[8] The controversy lies in phrases such as “severe and either widespread or long term,” which has already caused issues in other provisions of the Rome Statute, such as Article 8(b)(2)(iv).[9] The high evidentiary standards set by the language and the ecocentric nature of the crime have proven difficult to overcome.[10] The vague and inconsistent nature of this definition has made it difficult to pass an amendment including ecocide in the ICC’s jurisdiction.[11]
Several countries have recently come together along with the organization Stop Ecocide to push for the inclusion of ecocide as an international crime: Samoa, Fiji, and Vanuatu.[12] The inclusion of ecocide as an international crime may seem obsolete because of Article 8(2)(b)(iv) of the Rome Statute. Due to the statute’s limitation to environmental damage during an armed conflict, the legal framework is insufficient for prosecution of those who perpetuate environmental damage outside of wartime.[13] The definition of “ecocide” must be narrowed and standardized by the ICC in order to amend the Rome Statute to recognize ecocide as an international crime.[14]
One of the significant issues regarding the adoption of ecocide is the ecocentric nature of the crime.[15] Ecocentricism focuses on the value of ecosystems and the preservation of the environment for its own sake.[16] In the legal community it is contrasted with anthropocentrism, which puts the value of humans at the center of moral consideration.[17] To this date, the ICC has solely focused on anthropocentric crimes; this causes a major barrier for ecocide to be included as a part of the ICC’s jurisdiction.[18] The “wanton” portion of the proposed definition of ecocide is defined by the IEP as “reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated.”[19] The mens rea of ecocide, including anticipation, is not compatible with the traditional mens rea of knowledge and intent that is required for the other four international crimes; this creates another obstacle for amending the Rome Statute.[20] This characteristic rift has been a central issue in efforts to incorporate ecocide as a fifth international crime.[21] Ecocide’s definition must be narrowed in order to fit more comfortably within the ICC’s jurisdiction.[22]
The ICC attempted to criminalize ecocide through other avenues before this proposition; however, success has been small due to a limited scope of prosecution.[23] There has been several issues with prosecuting ecocide through current international law, including the fact that environmental damage must have occurred during an armed conflict under Article 8(2)(b)(iv).[24] Research shows that environmental damage happens more frequently during times of peace.[25] There is simply too much environmental damage happening outside of the scope of Article 8(2)(b)(iv) in order for the statute to be truly effective in slowing environmental destruction.[26] The language of Article 8(2)(b)(iv)—“severe and either widespread or long-term”—that reappears in the definition of ecocide has been proven a barrier to success for ecocide prosecution, due to the evidentiary standard it creates.[27] For this reason, the definition of ecocide must be narrowed in order to amend the Rome Statute. The high burden of proof for the prosecution, coupled with the ecocentrism of the crime, are simply too different from the other international crimes in the Rome Statute for the ICC to adopt ecocide as part of their jurisdiction. A standardized definition that is sufficiently narrow to fit within a reasonable evidentiary standard would allow for ecocide to be codified as the fifth international crime.
Ecocide is inherently ecocentric and splits from the anthropocentric crimes already within the ICC’s jurisdiction. Therefore, the definition must be narrowed and standardized in order for it to be adopted as the fifth international crime. Current attempts to prosecute ecocide are unsuccessful because the of the wartime limitation. If the mens rea connected with ecocide stays broad and the evidentiary standard remains as it is, it is unlikely that we will see ecocide adopted as an international crime. By shaping the language to be more palatable to prosecutors, ecocide may have a chance of becoming criminalized, which would help create a healthier planet for our generation and generations to come.
[1] June 2021: historic moment as Independent Expert Panel launches definition of ecocide, Stop Ecocide, (June 2021), https://www.stopecocide.earth/legal-definition.
[2] Rome Statutes, Article 5.
[3] June 2021: historic moment as Independent Expert Panel launches definition of ecocide, supra note 1.
[4] Sharma Ritwick, Ecocide as the Fifth International Crime; Is the Rome Statute Compatible with Ecocide?, Völkerrechtsblog, (Jan. 1 2025), https://voelkerrechtsblog.org/ecocide-as-the-fifth-international-crime.
[5] Id.
[6] Giovanni Chiarini, Is Ecocide a Viable International Crime? Ecocide in War and Peace: From the Air Pollution Consequences of the War in Ukraine to Japan & APOS’s Disposal of Fukushima Water into the Ocean, 56 Case W. Res. J. Int’l L. 239 at Section II, (Spring 2024), https://plus.lexis.com/.
[7] June 2021: historic moment as Independent Expert Panel launches definition of ecocide, supra note 1.
[8] June 2021: historic moment as Independent Expert Panel launches definition of ecocide , supranote 1, Article 8(1).
[9] Rome Statutes, supra note 2.
[10] Id.
[11] Id.
[12] Fiona Harvey, Pacific islands submit court proposal for recognition of ecocide as a crime, The Guardian, (Sept. 9, 2024, 2:30 P.M. EDT), https://www.theguardian.com/law/article/2024/sep/09/pacific-islands-ecocide-crime-icc-proposal; Mass destruction of nature reaches International Criminal Court (ICC) as Pacific island states propose recognition of “ecocide” as international crime, Stop Ecocide Foundation, (Sept. 9, 2024).
[13] Rome Statutes, supra note 2 at Section II, Rome Statutes Article 8(2)(b)(iv).
[14] Supra note 4.
[15] Ritwick, supra note 4.
[16] Id.
[17] Id.
[18] Id.
[19] June 2021: historic moment as Independent Expert Panel launches definition of ecocide, supra note 1, at Article 8(1).
[20] Ritwick, supra note 4.
[21] Id.
[22] Id.
[23] Aria Burdon Dasbach, How the ICC is Using International Criminal Law to Prosecute Suspects of Eco Crimes, Legal Planet, (May 1, 2024), https://legal-planet.org/2024/05/01/how-the-icc-is-using-international-criminal-law-to-prosecute-suspects-of-eco-crimes; Ritwick, supra note 4.
[24] Id.
[25] Ritwick, supra note 4.
[26] Id.
[27] Chiarini, supra note 6.
