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<\/figure>\nIn the 1970s, renowned biology professor Arthur W. Galston introduced<\/a> the concept of ecocide during the Vietnam War, as he protested the U.S. Army\u2019s use of the chemical herbicide \u201cAgent Orange\u201d to destroy vegetation cover and crops aiding enemy forces. Today, fifty years later, the term ecocide<\/em> has gained renewed relevance as environmental destruction accelerates on a global scale. As the impacts of climate change and environmental harm become ever more apparent, the call to recognise ecocide as an international crime grows louder.<\/p>\n On 9 September 2024, Pacific Island nations, namely, Vanuatu, Fiji and Samoa submitted a proposal<\/a> to the UN Secretary-General and the Working Group on Amendments of the Assembly of States Parties (ASP) to amend the Rome Statute of the International Criminal Court (ICC), seeking the recognition of ecocide as an international crime alongside<\/a> crimes against humanity, war crimes, genocide, and aggression.<\/p>\n A similar option was considered in 1991 during the drafting process of the Code of Crimes Against the Peace and Security of Mankind<\/a> that would eventually become<\/a> the Rome Statute: the International Law Commission proposed including a substantive crime of \u201cwillful and severe damage to the environment\u201d in the\u00a0 Draft Code<\/a>. As Bertram<\/a> reminds us, this proposal did not receive enough political support. As a result, the Rome Statute only explicitly addresses the natural environment in relation to Article 8(2)(b)(iv)<\/a> concerning environmental war crimes as an act that is committed that involves \u2018intentionally launching an attack in the knowledge that such attack will cause \u2026 severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated\u2019.<\/p>\n To what extent is this definition terminologically consistent with the above-mentioned proposal by the island states to the Rome Statute? Vanuatu, Fiji and Samoa have put forward a proposal for the ICC to formally recognise ecocide as an international crime, defined<\/a> as: \u2018unlawful 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\u2019.This definition was first introduced in 2021 when a panel of legal experts, convened by the Stop Ecocide International Foundation, proposed<\/a> the normative content of the crime of ecocide.<\/p>\n If successful, this would be the first amendment to the list of crimes over which the ICC has jurisdiction. More importantly, it could enable the prosecution of individuals<\/a> responsible for environmental destruction, including leaders of major polluting corporations and\/or even heads of State (although this opens another debate in international criminal law, see here<\/a> and here<\/a>).<\/p>\n Why should ecocide be an international crime?<\/strong><\/p>\n The need to recognise ecocide as an international crime under the Rome Statute<\/a> arises from the escalating severity of environmental destruction and its serious implications<\/a> for global peace, security, and human rights. Criminalization of ecocide would address significant gaps in international law and show the international community\u2019s commitment to environmental protection by shifting from procedural obligations, like reporting and transparency, to enforceable substantive commitments; holding individuals and corporations accountable rather than focusing solely on state responsibility; strengthening enforcement mechanisms beyond voluntary compliance; and creating a deterrent to prevent environmental destruction, rather than relying on post-damage reparations.<\/p>\n The United Nations has acknowledged<\/a> that environmental degradation can exacerbate conflicts and threaten human security. As Sands argues<\/a>, \u2018the time has come to align international criminal law with the reality of what environmental destruction does to people, ecosystems, and species.\u2019<\/p>\n Current international legal frameworks inadequately address<\/a> large-scale environmental harm, particularly in peacetime. The ICC has not yet prosecuted severe environmental damage during armed conflict, despite its mandate under Article 8(2)(b)(iv). The Rome Statute lacks<\/a> provisions for prosecuting severe environmental damage occurring outside armed conflict. This legal void allows individuals and corporations to cause significant harm without fear of international prosecution. Criminalising ecocide would close this gap, enabling the ICC to hold perpetrators accountable.<\/p>\n The proposal expands prosecution for environmental harm beyond war, shifting from an <\/a>anthropocentric<\/a> to a nature-centric focus, which develops ecosystem protection but poses challenges in enforcement, legal clarity, and development conflicts. In February 2024, ICC Prosecutor Khan announced<\/a> a new policy initiative to boost accountability for environmental crimes under the Rome Statute, signaling the Court\u2019s commitment to addressing environmental harm as a serious international crime. The ICC\u2019s incoming policy will likely increase the likelihood of prosecution for severe environmental damage during armed conflict, possibly beginning with the situation<\/a> in Palestine, where such damage potentially amounts to war crimes.<\/p>\n The ICC has jurisdiction over individuals, but many ecocidal acts involve corporate entities. If ecocide was a crime over which the ICC had jurisdiction, this provision would facilitate<\/a> the prosecution of those in leadership positions of corporations that orchestrate environmental harm, bridging the accountability gap for corporate actions.<\/p>\n Prosecuting ecocide at the ICC would also unlock possibilities for victims to receive<\/a> reparations. Although the ICC\u2019s mandate for reparations is a less examined aspect of the ecocide movement, it holds significant potential. As a result of successful prosecutions, victims could receive compensation for the loss of natural resources, as well as support for reforestation and other environmental recovery efforts. These measures not only provide justice to affected communities but could be used to bolster efforts to restore the environment.<\/p>\n Additionally, through the doctrine<\/a> of universal jurisdiction, member States that recognise ecocide as a crime could prosecute<\/a> offenders within their national legal systems. This would allow States to hold individuals accountable, regardless of their nationality or where the crime took place.<\/p>\n Beyond legal considerations, there is a moral obligation to protect<\/a> the environment for present and future generations. The concept of intergenerational equity emphasises<\/a> our responsibility to preserve the planet\u2019s health. Criminalising ecocide would reflect the international community\u2019s ethical commitment to intergenerational equity<\/a>, ensuring that severe environmental harm is faced with appropriate legal consequences.<\/p>\n The challenge of jus cogens<\/strong><\/p>\n The guidelines of the Working Group on Amendments require<\/a> States to assess whether the crime in question qualifies as one of the most serious human rights violations of global concern. This threshold is a high one. The other listed crimes over which the ICC has jurisdiction align with jus cogens<\/em> (peremptory norms) of international law.<\/p>\n In comparison to genocide, which is defined in the standalone Convention on the Prevention and Punishment of the Crime of Genocide<\/a> (Genocide Convention) and shares some conceptual similarities with ecocide, it is important to note that ecocide has not been recognised as existing under customary international law, that is, it is not binding on States without international treaty obligations. In Reservation to Genocide Convention, <\/em>the International Court of Justice (ICJ) recognised<\/a> that \u2018the principles underlying the Convention are principles which are recognised by civilised nations as binding on states, even without any conventional obligation\u2019. Furthermore, in Armed Activities on the Territory of the Congo<\/em> (Democratic Republic of the Congo v Uganda<\/em>), the ICJ affirmed<\/a> that the prohibition of genocide constitutes a norm of jus cogens<\/em>, which the Court reaffirmed<\/a> later in its Application of the Genocide Convention<\/em><\/a> (Bosnia and Herzegovina v. Serbia and Montenegro<\/em>) judgment. Other categories of jus cogens<\/em> codified in the Rome Statute \u2013 such as war crimes, crimes against humanity, and the crime of aggression \u2013 have similarly had their jus cogens<\/em> status established through ICJ decisions (see here<\/a>, here<\/a>, and here<\/a>).<\/p>\n As ecocide is not recognised in customary international law and established case law, let alone not a jus cogens<\/em> norm, it will struggle to coexist with other international crimes in the Rome Statute, which had already been regarded as jus cogens<\/em> norms long before the Statute\u2019s adoption.<\/p>\n The challenge of ratione personae<\/strong><\/p>\n A significant portion of acts falling under the proposed definition of ecocide are committed by corporations<\/a>. This presents a ratione personae<\/em> challenge for the ICC, as its current jurisdiction does not extend to legal persons.<\/p>\n Since international criminal law only applies to individuals, the ICC has jurisdiction exclusively over individuals. However, there is a way to cover individuals leading corporations. Article 25(3)(c) of the Rome Statute establishes individual criminal responsibility for facilitating a crime where an individual assists in the attempted commission of a crime, including providing the means for its commission. This could be applied to find individuals leading corporations committing ecocide liable under international criminal law.<\/p>\n The current proposal to amend the Rome Statute to cover ecocide involves extending the ICC\u2019s jurisdiction to legal persons and thus is of particular interest to answering the ratione personae <\/em>challenge for the ICC. However, such an amendment may not be necessary. Article 25(3)(d) of the Rome Statute stipulates that individual criminal responsibility is incurred when an individual intentionally contributes to the commission of a crime within the ICC`s jurisdiction committed by \u2018a group of persons acting with a common purpose\u2019. Hence, as Andrew Clapham noted<\/a>, \u2018the concept of criminalising the individual participation in a crime committed by a collective entity is therefore present and operative in the Statute of ICC\u2026\u2019. It can be assumed that this article of the Statute will be relevant if ecocide is recognised as an international crime, and to some extent, it will help address the gap in the Court\u2019s jurisdiction over legal entities.<\/p>\n In conclusion, recognition of ecocide as a Rome Statute crime is an important step toward safeguarding our environment, ensuring justice for affected communities such as indigenous peoples and those in conflict zones, and holding powerful actors like corporations and governments accountable for environmental destruction. Such criminalisation would be significant progress towards addressing the legal gaps that allow individuals and corporations to evade responsibility for large-scale environmental harm. It would also become a pathway for victims to receive reparations and promote sustainable development by deterring destructive practices. In the coming days, as delegations from Rome Statute parties convene<\/a> in The Hague, we urge them to use this opportunity to engage in meaningful discussions on ecocide and to commit to voting for its recognition as an international crime next year, given procedural timing constraints preventing a vote this time. As the world faces a triple planetary crisis<\/a>, it is important that international law evolves to protect the planet and future generations.<\/p>\n