Ecocide as the Fifth International Crime

The international criminal law framework could soon expand to include ‘ecocide’—the arbitrary, severe, and either widespread or long-term destruction of ecosystems. On September 9, 2024, Fiji, Samoa, and Vanuatu submitted a joint proposal to the International Criminal Court (“ICC”) to recognize ecocide as a crime on par with genocide. With the ICC already keen on advancing accountability for environmental crimes under the Rome Statute, this has become a real possibility.

Stop Ecocide International, an organization advocating for the international criminalization of ecocide, has proposed that amending the Rome Statute alone could sufficiently deter States and multinational corporations from engaging in practices that cause large-scale and long-term environmental damage. While this proposal is compelling, it is crucial to assess whether the Rome Statute aligns with the nature and essence of ecocide—a criminal offense that envisions ecosystems and the planet itself as the victims.

This blog examines whether the Rome Statute, which is largely anthropocentric, can adapt to an ecocentric definition of ecocide, and whether an express recognition could pose challenges that may make such a law ineffective.

Ecocide: A Vaguely and Inconsistently Defined Concept

Despite growing attention to ecocide amid escalating environmental crises, the term remains inconsistently defined. The proposal to the ICC adopts the definition from the Independent Expert Panel (“IEP”), convened by the Stop Ecocide Foundation, which describes 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.” However, the use of terms such as “severe,” “widespread” and “long-term,” implies dolus eventualis, making the definition less effective. This is because such terms require a significantly high threshold to prove the knowledge that an act is likely to cause severe, widespread, or long-term damage which is extremely challenging for prosecutors to prove.

It is worth noting here that the use of “long-term damage” in the IEP’s definition mirrors the use of the term “long-term and severe damage to the natural environment,” in Article 8(2)(b)(iv) of the Rome Statute, which already criminalizes environmental damage as a war crime, albeit restricting liability to acts committed during armed conflict. Similarly, “widespread, long-term and severe damage” appears in Articles 35(2) and (55) of the Additional Protocol I of the Geneva Convention, 1977, concerning environmental protection. The IEP’s phrasing of “severe and either widespread or long-term damage,” attempts to strike a balance between conjunctive and disjunctive formulations of damage, yet it fails to adequately lower the threshold for providing damage. This is because it still incorporates terms that have proven problematic in establishing liability under the Rome Statute’s Article 8(2)(b)(iv), thus maintaining a high evidentiary standard. The use of terms such as “clearly excessive” reflects an intent to set a stringent standard, implying that the harm must not only exist but also be disproportionate in relation to the purpose of the act that caused it. In the absence of universally agreed-upon criteria for assessing when such damage is “clearly excessive,” the same vagueness that has hindered prosecutions under Article 8(2)(b)(iv) persists in the IEP definition.

Additionally, while the IEP clarifies “wanton” to mean “reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated,” this term inherently introduces subjectivity into the definition by requiring a comparative analysis of an act’s impact against its anticipated benefits. Determining if the damage is “clearly excessive” to anticipated benefits is an inherently subjective requirement, and if it is subject to the same high threshold of excessiveness as required under Article 8(2)(b)(iv), offenders may easily escape liability. In addition, the term “wanton” inevitably invokes the application of the proportionality test, injecting an undesired element of anthropocentrism into the IEP definition.

The dichotomy between ecocentrism and anthropocentrism is particularly pronounced in criminal law as well as international law, which have largely maintained an anthropocentric focus, placing humans at the centre of moral consideration. For instance, Articles 35(2) and (55) of the Additional Protocol I of the Geneva Convention and Article 1 of the Environmental Modification Convention define environmental damage in terms of injury to State parties. Ecocentrism, on the other hand, asserts the intrinsic value of ecosystems, prioritizing the preservation of the natural world for its own sake, rather than merely for human benefit. In this context, the phrase “social and economic benefits anticipated” in the IEP definition suggests that even if reckless disregard for the environment is likely, certain acts deemed socially and economically beneficial may not constitute ecocide.

Is Ecocentrism Compatible with the Conception of Mens Rea Under the Rome Statute?

The current definition of ecocide is misaligned with the requirements of the Rome Statute. Unlike the four existing anthropocentric crimes, prosecuting ecocide would require the ICC to establish mens rea in causing environmental damage, and the traditional anthropocentric concepts of intent and knowledge that define mens rea under international criminal law are not compatible with ecocide. For instance, Article 30 mandates intent and knowledge to establish mens rea, but proving that a party was fully aware of the environmental harm their actions would cause is often challenging. The IEP’s proposed definition of ecocide includes “wanton acts,” or actions with a “reckless disregard for damage,” suggesting that ecocide also encompasses unintentional acts where the offender should have known the likely consequences. If adopted in this form, ecocide would be incompatible with Article 30, which limits mens rea to cases involving both intent and knowledge. Under Article 30, intent is established only if the person is aware of the consequences of their actions in the ordinary course of events, thereby excluding negligence entirely. This difference renders the IEP’s definition of ecocide incompatible with Article 30.

Moreover, the word “knowledge” in this definition implies awareness of the environmental impact of the impugned action since Article 30 defines this word as “awareness that a circumstance exists or a consequence will occur in the ordinary course of events.” Therefore, since knowledge is a component of mens rea, the prosecution would have to establish this awareness to prove liability. Although “awareness” is itself ambiguous, in The Prosecutor v. Jean-Pierre Bemba Gombo, the ICC interpreted “awareness” to require practical or virtual certainty that harm would occur. Applying this standard to ecocide imposes a heavy burden on the prosecution, particularly given the complexities involved in proving causation for environmental harm. For example, proving that a perpetrator not only intended to discharge toxic waste, but was also virtually certain of the resulting environmental harm is challenging. This makes traditional mens rea standards impractical for ecocide.

Hence, an ecocentrist conception of environmental crime seems incompatible with the principles of international criminal law. This is especially true as prosecuting ecocide necessitates establishing mens rea as a conditio sine qua non under Article 30. In consequence, ecocide’s inclusion in the Rome Statute poses multiple challenges that may be counterproductive in addressing the climate crisis.

The Way Forward

The Rome Statute is ill-suited to the prosecution of environmental crimes, and the inclusion of ecocide alongside crimes such as genocide risks rendering it a legal anomaly. Given its ecocentric requirements, it may be difficult to harmoniously interpret existing anthropocentric provisions with the proposed crime of ecocide. Hence, as suggested by Wouters, promoting and refining domestic criminal legislation allowing ecocide prosecutions may offer a more effective first step before pursuing international criminal law. The European Union’s Directive on environmental protection via domestic criminal law is a welcome move in this direction.

Another key priority is to establish a quantifiable definition of ecocide that includes specific thresholds for harm. Parameters such as the geographic extent of damage, irreversibility, the use of weapons of mass destruction, chemical herbicides, large-scale deforestation machinery, etc., should be clearly defined, as suggested by Richard A. Falk in his 1973 proposal. While an open-ended definition allows for the prosecution of future types of mass environmental harm not yet anticipated, experience with Article 8(2)(b)(iv) of the Rome Statute indicates that well-defined harm parameters would strengthen enforcement and enhance the law’s deterrent effect.

Until there is international consensus on a uniform definition of ecocide, the ICC could interpret Article 8(2)(b)(iv) of the Rome Statute more flexibly by adopting an ecocentric approach. In other words, what may not have been considered “severe and either widespread or long-term damage” to the environment in the past could now qualify, given advancements in the scientific understanding of environmental threats. One step towards attributing criminal liability to such acts under the Rome Statute would be a liberal interpretation of the phrase “unless otherwise provided” in Article 30, which is currently applied only in exceptional cases where there are no specific rules on ascertaining mens rea in the other provisions of the Rome Statute or customary international law. This shift could help strengthen the ICC’s ability to address ecocide within its current mandate.