By Maria Mazurek, International Law and Justice student at Amsterdam University College

International criminal law, with its relatively few material, pragmatic benefits for states from a realist standpoint, has been labelled ‘an exercise in altruism’.[1] It is thus hardly surprising that far-ranging voices within the international community calling for the criminalization of particular conduct outside the domestic sphere are rare – and when they are raised, the cause is generally said to bear that altruistic, momentous worth. Accordingly, legal, academic and political circles are currently seeing a proliferation of the movement insisting on criminalizing ecocide – standing for far-reaching environmental destruction – as a standalone crime in the Rome Statute of the International Criminal Court, 50 years after Arthur Galston coined the term to condemn the use of Agent Orange by the US in Vietnam.[2] Below I offer a compact argument for the desirability of criminalizing ecocide, followed by my engagement with the question of its most appropriate definition.

Criminalizing ecocide in the Rome Statute

Before reviewing the added value of making ecocide the fifth international crime, several limits of this approach should be noted. Introducing a wholly new crime to the Rome Statute is anything but straightforward and, even if actualized, its ultimate legitimacy lies in the number of states ratifying such an amendment. Prosecuting ecocide might, secondly, pose conceptual incompatibilities with the ICC’s individual criminal responsibility doctrine enshrined in Article 25 of the Rome Statute. Environmental degradation is routinely a result of collective action, oftentimes that of large corporations. Establishing who in the structure of such legal persons should hold liability for ecocide, as one scholar expressed, would be a ‘mammoth undertaking in international law-making’.[3] Environmental damage similarly lacks a single-event nature and can often be caused by an aggregate of factors.[4] Consequently, demonstrating the defendant’s guilt through collecting evidence and determining intricate causality between their act and the harm would pose an immensely burdensome enterprise for the prosecutor.[5] Finally, I write bearing in mind international criminal justice must be understood as a last resort and tackle the ‘hard core’ of accepted prohibitions – arguably, not sharply defined in environmental law.[6]

That said, the gains of criminalizing ecocide make it a promising endeavour. Notably, there is currently one provision in the Rome Statute prohibiting environmental damage ‘more by accident than design’.[7] Yet, the constraints of Article 8(2)(b)(iv) – lacking clarifications on actus reus, a high mens rea threshold and, primarily, its sole applicability to armed conflict – suggest the need for a standalone ecocide provision.[8]  – suggest the need for a standalone ecocide provision. This provision would expand the accountability for grave environmental destruction as, domestically, it often goes unpunished due to inadequate, inconsistent, corrupted or unenforced national environmental law.[9] Upon ratification, the need for implementing the Rome Statute and complying with the principle of complementarity would, in turn, strengthen the states’ environmental protection systems through enacting legislation and growing institutional capacities to effectively prosecute ecocidal conduct. According to Darryl Robinson, this would also create a momentum to combat smaller environmental offences.[10] Furthermore, pursuant to the principle of universal jurisdiction, state parties to the ecocide amendment could, theoretically, try ecocide perpetrators regardless of their nationality or the crime’s location – though, agreeably, due to political and economic constraints and lack of precedent, this would be limited to a normative role. Finally, it has been noted that, since environmental harm is often done at the hands of powerful global North actors (with Shell as an example), criminalizing ecocide could contribute to ‘decolonizing’ international law.[11] That gains importance at the time of an Africa-bias legitimacy crisis of the ICC.

General rationales for criminalization offer further insights. First, despite empirical scepticism about the ICC’s deterrent function, some say business owners could be discouraged by being charged with a crime as grave as genocide[12] and there is evidence of a deterrent effect of national criminalisation on environmental harm.[13] On the issue of remedies, Article 75 of the Rome Statute provides a unique opportunity for the payment of reparations to victims of environmental degradation, including compensations to communities for lost natural resources, access to clean water or environmental restoration projects.[14] Yet, I concur with multiple scholars that the principal contribution of criminalizing ecocide would consist in its expressivist, symbolic, communicative role of creating a new discourse platform for the environment.[15] It would communicate to public consciousness that environmental destruction is mala in se, give nature a legal voice, foster an ecocentric culture and declare our well-being is inextricably linked to that of the Earth. Through that, it would serve as a ‘loudspeaker echoing the values of the international community’.[16]

Defining ecocide

Constructing a definition of a new international crime is daunting and, at the outset, I accept Darryl Robinson’s assertion that any final product is bound to be imperfect.[17] Fortunately, I am not starting from square one – my more modest goal lies in situating myself in the lively debate around the 2021 International Panel Definition, which takes ‘ecocide’ to mean ‘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.’[18]

I begin with the definition’s mens rea provision as, bluntly put, I find it the most problematic. In opting for the ‘knowledge that there is a substantial likelihood’ mens rea requirement, the Expert Panel deviated from the Rome Statute’s default approach, as explicitly allowed in Article 30. The deviation does not pose an issue; indeed, there are several precedents of ICC provisions with standards diverging from the default ‘intent and knowledge’ of Article 30, including command responsibility or the age of child soldiers.[19] Broad consensus exists that the complexity of ecocide requires a lowered mens rea as environmental damage is rarely purposeful or intended and known with certainty, but rather considered in terms of risks.[20] The Panel endorsed this view by suggesting a ‘recklessness’ or ‘dolus eventualis’ reading of the mens rea requirement in the Commentary to the Definition.[21] In light of this, I concur with scholars that the choice of the term ‘knowledge’ – conceptually far and setting a higher bar than the other two alternatives – in the actual definition is puzzling, putting it mildly.[22] To remedy this ambiguity and set an explicit lower mens rea threshold which the Panel seemingly had in mind, I echo Kevin Heller in suggesting substituting the term ‘knowledge’ for the least controversial ‘awareness [that there is a substantial likelihood]’.[23]

The actus reus was another element which received considerable attention in academic circles. Initially, I want to commend the Panel’s construction of the ‘severe and either widespread or long-term’ damage threshold as I believe it, together with the elaborations on the terms, clearly reflects the convoluted nature of ecocide and confirms the harm’s severity as its indispensable characteristic. Subsequently, the definition places an act’s wrongfulness on it being either ‘unlawful’ or ‘wanton’, the latter defined as ‘reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated’, thus introducing the hotly contested cost-benefit analysis.[24] Importantly, the ‘unlawful’ criterion would span a modest number of cases since environmental law does not offer a comprehensive set of prohibitions on conduct.[25] The ‘wantonness’ test with an assessment of socioeconomic benefits would then effectively emerge as the criminalizing factor. This has been met with substantial criticism arguing the test reinvites an anthropocentric element to an ecocentric crime and harms the expressivist function of ecocide by communicating the interests of humans are separate from those of the environment.[26] In response to this, Robinson provided a compelling argument for socially valuable activities (such as food, technology and energy production or air travel) which might foreseeably cause environmental harm comparable to that under the scope of ecocide, yet remaining undesirable to replace or avoid.[27] In fact, environmental law itself tends to consider not solely the harm done, but also the benefits, the measures mitigating the impact and factors like eradicating poverty and giving special recognition to developing countries.[28] Moreover, the cost-benefit test reflects a level of realism relevant to the modern-day political and economic climate.[29] Regarding the anthropocentricism charge, such a dimension is, in fact, more in tune with the architecture of the ICC and, thus, holds a legitimacy value.[30] For the above reasons, I find the Expert Panel’s approach to wrongfulness with the ‘wantonness’ balancing test convincing, without the need for modifications.

Finally, bearing in mind the principles of legality and strict construction (Article 22(2) of the Rome Statute) raised to new dimensions in international criminal justice, and given that the Panel’s definition lacks any substantive account of possible actus reus, I suggest the definition could benefit from a non-exhaustive list of criminalized conduct. Such an addition would follow the precedent of the Rome Statute’s Articles on the core four crimes and avoid the criticism of ‘catch-all’ provisions previously raised concerning crimes against humanity.[31] As already mentioned, environmental law generally does not have an established list of grave prohibitions on offer, yet itemizing acts of far-reaching concern could be sufficient, if concluded with a ‘residual’ clause. As an example, grave destruction of ecosystems (for instance potentially covering the deforestation of the Amazon) could fall under such acts. The list from the UCLA Promise Institute Definition of Ecocide,[32] drawing from significant environmental law treaties, provides an instrumental source in this regard. Ultimately, I appreciate that both definitions base ecocide on an endangerment rationale which criminalizes conduct without the need to await the materialization of environmental harm.[33]

‘The earth is not dying, it is being killed’[34] – the urgency of the irreversible environmental destruction makes criminalizing ecocide in the Rome Statute an appealing notion. The message would appear clear: the international community can no longer stand idle when grave harm is inflicted upon the planet. That said, my analysis has taken for granted that criminal accountability is just one pathway to addressing environmental harm, which involves intricate conversations in political, social, cultural and a plethora of other fields.

[1] Kenneth Anderson, ‘The Rise of International Criminal Law: Intended and Unintended Consequences’ (2009) 20 EJIL 331, 333.

[2] Emma O’Brien, ‘An International Crime of “Ecocide”: What’s the Story?’ (EJIL: Talk!, 11 June2021) <https://www.ejiltalk.org/an-international-crime-of-ecocide-whats-the-story/> accessed 23 March 2023.

[3] Mrinalini Shinde, ‘Opinion: The New Legal Definition of “Ecocide” Could Be a Gamechanger for the Environmental Movement’ (Climate Tracker, 25 June 2021) <https://climatetracker.org/new-legal-definition-ecocide-gamechanger-environment/> accessed 23 March 2023.

[4] Frédéric Mégret, ‘The Problem of an International Criminal Law of the Environment’ (2011) 36 Columbia Journal of Environmental Law 195, 222.

[5] Eliana Cusato, ‘Beyond Symbolism: Problems and Prospects with Prosecuting Environmental Destruction before the ICC’ (2017) 15 JICJ 491, 503.

[6] Darryl Robinson, ‘Ecocide — Puzzles and Possibilities’ (2022) 20 JICJ 313, 322.

[7] Anthony Leibler, ‘Deliberate Wartime Environmental Damage: New Challenges for International Law’ (1992) 23 California Western International Law Journal 67, 132.

[8] Kevin Heller and Jessica Lawrence, ‘The Limits of Article 8(2)(B)(Iv) of the Rome Statute, the First Ecocentric Environmental War Crime’ (2007) 20 GIERL 61.

[9] Robinson, ‘Ecocide — Puzzles and Possibilities’ (n 6) 317.

[10] Ibid, 325.

[11] Tim Lindgren, ‘Ecocide, Genocide and the Disregard of Alternative Life-Systems’ (2018) 22 The International Journal of Human Rights 525.

[12] Stop Ecocide International, ‘Making Ecocide a Crime’ (Stop Ecocide 2014) <https://www.stopecocide.earth/making-ecocide-a-crime> accessed 23 March 2023.

[13] Susan Smith, ‘Changing Corporate Environmental Behaviour: Criminal Prosecutions as a Tool of Environmental Policy’ in Robyn Eckersley (ed), Markets, the State and the Environment (Palgrave 1995).

[14] Rachel Killean, ‘Could Criminalising Ecocide Increase Accountability for Environmental Harm in Conflicts?’ (Conflict and Environment Observatory 22 April 2021) <https://ceobs.org/could-criminalising-ecocide-increase-accountability-for-environmental-harm-in-conflicts/> accessed 23 March 2023.

[15] Cusato, ‘Beyond Symbolism: Problems and Prospects with Prosecuting Environmental Destruction before the ICC’ (n 5); Liana Minkova, ‘The Fifth International Crime: Reflections on the Definition of “Ecocide”’ (2023) 25 Journal of Genocide Research 62; Marina Aksenova, ‘Symbolism as a Constraint on International Criminal Law’ (2017) 30 Leiden Journal of International Law 475.

[16] Immi Tallgren, ‘Sensibility and Sense of International Criminal Law’ (2002) 13 EJIL 561, 592.

[17] Darryl Robinson, ‘Your Guide to Ecocide – Part 2: The Hard Part’ (Opinio Iuris 16 July 2021) <https://opiniojuris.org/2021/07/16/your-guide-to-ecocide-part-2-the-hard-part/> accessed 24 March 2023.

[18] Stop Ecocide International, ‘Legal Definition of Ecocide’ (Stop Ecocide 2021) <https://www.stopecocide.earth/legal-definition> accessed 24 March 2023.

[19] Anastacia Greene, ‘Mens Rea and the Proposed Legal Definition of Ecocide’ (Völkerrechtsblog 7 July 2021) <https://voelkerrechtsblog.org/mens-rea-and-the-proposed-legal-definition-of-ecocide/> accessed 24 March 2023.

[20] Minkova, ‘The Fifth International Crime: Reflections on the Definition of “Ecocide”’ (n 15) 65.

[21] Stop Ecocide International, ‘Legal Definition of Ecocide’ (n 18).

[22] Kai Ambos, ‘Protecting the Environment through International Criminal Law?’ (EJIL: Talk!, 29 June 2021) <https://www.ejiltalk.org/protecting-the-environment-through-international-criminal-law/> accessed 24 March 2023; Kevin Heller, ‘Skeptical Thoughts on the Proposed Crime of “Ecocide” (That Isn’t)’ (Opinio Juris, 23 June2021) <https://opiniojuris.org/2021/06/23/skeptical-thoughts-on-the-proposed-crime-of-ecocide-that-isnt/> accessed 24 March 2023; Minkova, ‘The Fifth International Crime: Reflections on the Definition of “Ecocide”’ (n 15); Robinson, ‘Ecocide — Puzzles and Possibilities’ (n 6).

[23] Heller, ‘Skeptical Thoughts on the Proposed Crime of “Ecocide” (That Isn’t)’ (n 22).

[24] Stop Ecocide International, ‘Legal Definition of Ecocide’ (n 18).

[25] Kevin Heller, ‘Ecocide and Anthropocentric Cost-Benefit Analysis’ (Opinio Juris, 26 June 2021) <http://opiniojuris.org/2021/06/26/ecocide-and-anthropocentric-cost-benefit-analysis/> accessed 24 March 2023.

[26] Ambos, ‘Protecting the Environment through International Criminal Law?’ (n 22); Minkova, ‘The Fifth International Crime: Reflections on the Definition of “Ecocide”’ (n 15).

[27] Robinson, ‘Ecocide — Puzzles and Possibilities’ (n 6).

[28] Ibid, 325.

[29] Christina Voigt, ‘“Ecocide” as an International Crime: Personal Reflections on Options and Choices’ (EJIL: Talk!, 3 July2021) <https://www.ejiltalk.org/ecocide-as-an-international-crime-personal-reflections-on-options-and-choices/> accessed 24 March 2023.

[30] Natascha Kersting, ‘On Symbolism and Beyond: Defining Ecocide’ (Völkerrechtsblog, 8 July 2021) <https://voelkerrechtsblog.org/on-symbolism-and-beyond/> accessed 24 March 2023.

[31] Ibid.

[32] Promise Institute for Human Rights (UCLA) Group of Experts, ‘Proposed Definition of Ecocide’ (9 April 2021).

[33] Robinson, ‘Ecocide — Puzzles and Possibilities’ (n 6) 332.

[34] Utah Phillips as cited in Naomi Klein, No Logo: No Space, No Choice, No Jobs (Flamingo 2009) 325.