Symposium on Advisory Opinion AO-32/25 on the Climate Emergency and Human Rights: Climate Justice on Trial – Using the Opinion to Advance Criminal Accountability

[Laura Barón-Mendoza is a legal consultant to the Office of the Prosecutor and is part of the core team responsible for drafting the upcoming policy paper on environmental crimes under the Rome Statute. She is also an international law consultant and PhD candidate at McGill University]

The Inter-American Court of Human Rights’ recent Advisory Opinion on Climate Emergency and Human Rights (AO-32/25) marks a milestone in consolidating the link between environmental protection and fundamental rights. The Court affirms in unequivocal terms that humanity faces a genuine climate emergency requiring an urgent, coordinated, and human rights–based response. Beyond its human rights impact, AO-32/25 opens interpretive space for international criminal law, raising a critical question: how can its reasoning advance individual criminal accountability for environmental and climate damage before the International Criminal Court (ICC)? 

This contribution argues that AO-32/25, interpreted alongside Article 21(3) of the Rome Statute, strengthens the case for prosecuting individuals for environmental damage. Although the Advisory Opinion does not address criminal responsibility directly, its reasoning creates momentum in three distinct ways:  by reframing persecution through climate-related harms, by closing accountability gaps for non-state actors, and by building normative support for the recognition of ecocide.

This argument sits within a broader legal ecosystem where multiple international and regional bodies (see the International Tribunal for the Law of the Sea, the International Court of Justice (ICJ), and the African Court on Human and Peoples’ Rights) and the ICC itself through its own draft policy paper on environmental crimes, are testing the capacity of existing frameworks to address environmental damage. Together, these developments point toward an emerging normative order where human rights, environmental law, and international criminal law increasingly operate in dialogue, exerting legal and moral pressure on both states and non-state actors to confront the climate crisis.

Persecution Through Climate Damage

The protections enshrined in the Rome Statute and AO complement one another in expanding the legal basis for prosecuting climate-related damage. While the Rome Statute was drafted with a narrow view of environmental protection, AO elevates the right to a healthy climate as an autonomous human right, complementing the broader right to a healthy environment. This integrated framework underscores how environmental destruction can be prosecuted not merely as collateral harm but as a direct violation of human dignity, equality, and survival.

The Statute itself contains only one explicit reference to the natural environment. Article 8(2)(b)(iv) classifies as a war crime the intentional launching of attacks in international armed conflict that cause “widespread, long-term and severe damage” to the natural environment. Its primary focus thus remains the protection of human life and property. Climate change, however, presents distinct challenges because it is a diffuse, cumulative phenomenon. It raises complex questions of attribution (whether particular damages can be traced back to the conduct of identifiable actors) and causation (whether those acts can be shown to directly result in particular damage). These evidentiary hurdles complicate efforts to frame climate-related damages within the Statute’s existing categories of crimes. Yet Article 21(3) of the Statute, which requires that its provisions be applied and interpreted consistently with internationally recognized human rights, creates interpretive space. 

The AO strengthens that space by recognizing damage to the climate system as a form of environmental damage and elevating the right to a healthy climate to an autonomous human right (paras. 299–300).  While the right to a healthy environment protects access to clean air, water, soil, and ecosystems in general, the right to a healthy climate specifically safeguards a stable and safe climate system, free from dangerous human interference. Individually, it protects each person’s ability to live in a climate system free from dangerous human interference (para. 303). Collectively, it safeguards present and future generations, human and non-human alike, by preserving a climate system essential for well-being and ecological balance in the face of existential threats (para. 302).

Building on this reasoning, actions that foreseeably destabilize the climate, such as large-scale fossil fuel emissions, deforestation, or uncontrolled methane release, can be framed as severe deprivations of a fundamental right. When such actions are deliberately targeted at vulnerable groups, the resulting environmental harm may become an integral component of the criminal act rather than an incidental by-product. This opens a pathway to classify climate-related destruction under existing categories of crimes against humanity, in particular the crime of persecution (para.32-40).

Persecution under Article 7(1)(h) requires, among other elements, a severe deprivation of fundamental rights, directed at an identifiable group on prohibited grounds, with discriminatory intent. AO-32/25 expands the first element by affirming the right to a healthy climate as a fundamental human right. Acts that undermine this right, thereby severely depriving one or more members of an identifiable group or collectivity of access to a stable and life-sustaining climate system, when directed on prohibited grounds with discriminatory intent, could meet the threshold for persecution.

A concrete illustration makes this clear. Imagine a state-owned company authorizing massive coal-burning projects in Indigenous territories, aware that the resulting emissions will or could devastate local water sources, increase disease rates, and erode cultural survival. Under the framework of AO-32/25, this is not mere environmental mismanagement. It constitutes a deliberate assault on the group’s fundamental rights, opening a pathway for liability under crimes against humanity if other elements of the crimes are also proved. 

Other scenarios could be:

• Climate reprisal: Systematic industrial pollution designed to make a region uninhabitable for political opponents or minority groups could be considered as part of a broader attack against civilians.
• “Sacrifice zones”: Concentrating polluting activities or high-emission projects in lands of marginalized communities, treating them as expendable in ways that erode their long-term habitability.

In each of these scenarios, environmental damage is not incidental; it is weaponized. 

Closing the Accountability Gap for Non-State Actors 

Human rights law has long treated states as the primary duty bearers. Yet in today’s environmental and climate emergency, many non-state actors, such as corporate or armed, control resources, infrastructure, and territory on a scale that rivals or exceeds state capacity.  In some contexts, they exercise environmental governance powers in cooperation with, in parallel to, or in direct conflict with public authorities. This shifting landscape makes the question of their accountability not only urgent but unavoidable.

AO-32/25 takes an important step in this direction by addressing corporate climate and human rights impacts, while offering concrete legal pathways to pierce long-standing barriers to non-state actors’ accountability. Building on its earlier jurisprudence that the duty to guarantee rights includes preventing, investigating, punishing, and remedying violations by private actors, the Court expands this principle into the climate domain (See e.g,  Kaliña and Lokono Peoples v. Suriname, Garífuna Communities of Triunfo de la Cruz,  Punta Piedra v. Honduras, and  La Oroya v. Peru). 

One of the AO’s most consequential moves is its unambiguous affirmation that public and private enterprises bear obligations with respect to climate change and its impacts on human rights (para. 346). It holds that companies must prevent and remedy human rights violations linked to their activities (para. 345), applying the principle of common but differentiated responsibilities to corporate actors (para. 350), a bold innovation in human rights law. This approach recognizes that some companies, due to their size, sector, and historical emissions, shoulder greater duties to mitigate climate damage.

Crucially, the Court underscores that states must enact and enforce legal frameworks that bring corporate misconduct within the reach of investigation, prosecution, and sanction (paras. 345, 349). This duty, to regulate, investigate, punish, and guarantee redress, translates into a powerful bridge to international criminal law. By rooting these measures in human rights obligations, AO-32/25 implicitly supports a broad reading of Article 28 of the Rome Statute on superior responsibility. Such an interpretation could include corporate decision-makers whose actions or omissions enable environmental damage so grave that it amounts to an international crime (para. 82). The interpretive opening is thus clear: corporate leaders, like military commanders, could be held to account where they knew or should have known of such damage and failed to prevent or repress it.

Potential scenarios that could meet this threshold include:

• Authorizing harmful extractive operations: Deliberately approving large-scale mining in protected ecosystems, without regulatory oversight and knowing it will irreversibly damage the environment and undermine the survival of dependent communities.
• Deliberate regulatory evasion: Systematically circumventing environmental laws, through bribery or falsified impact assessments, resulting in toxic contamination of essential water sources.
• Omissions in disaster prevention: Ignoring known safety protocols in hazardous facilities, leading to preventable industrial disasters with mass human and environmental damage.

Yet the opinion is notably silent on the environmental human rights obligations of armed non-state actors (ANSAs), and thus on the environmental and climate crisis in situations of armed conflict or other situations of violence.  

This omission is significant in a region where several states grapple with ongoing hostilities and where ANSAs frequently exercise de facto territorial control. In such contexts, they often regulate access to, use of, and management of natural resources, engaging in what has been described as rebel environmental governance (a system of norms, practices, and enforcement mechanisms through which ANSAs rule socio-environmental relationships within the territories they control). Their environmental footprint is deeply ambivalent: on one hand, large-scale deforestation, river contamination from mercury-based illicit mining, and targeted or disproportionate harm to certain communities. On the other hand, occasional actions that directly or indirectly contribute to environmental protection. When prejudicial, such conduct can rise to the level of international crimes, particularly where environmental destruction is weaponized as e.g., coercion, punishment, or a means to force displacement.

Sidestepping this question, the Court not only missed the chance to clarify ANSAs’ direct duties under human rights law (a live debate in legal scholarship) and the derivative implications for state responsibility. It also overlooked the opportunity to explore how international law could engage with such actors to reinforce compliance, thereby advancing civilian protection, environmental integrity, and peacebuilding. AO-32/25 thus leaves a critical gap for future jurisprudence, one that could, by analogy to corporate accountability, extend legal scrutiny to other powerful non-state actors whose environmental governance profoundly shapes rights and ecosystems alike.

Building Momentum for Ecocide 

Embedding climate protection within the human rights framework, AO-32/25 cultivates a legal terrain from which the recognition of ecocide under the Rome Statute could naturally emerge. While the Interamerican Court does not explicitly mention ecocide, its reasoning encourages a central premise: that environmental destruction of sufficient scale and gravity merits recognition as an international crime.

Crucially, the Court’s approach marks an important shift away from a purely anthropocentric lens, which has historically shaped both the Rome Statute and international law more broadly. AO-32/25 embraces an eco-centric vision in which humanity is “just one more manifestation of Nature’s interdependent network” (para. 314), and where climate change is understood not only as a threat to human systems but as a force that “profoundly alters the life cycles, processes and forms that Nature comprises.” While AO-32/25 does not explicitly enshrine rights of nature in the American Convention, it includes the concept implicitly. 

The Court extends the protective reach of the right to a healthy climate to nature itself, grounding it in the life-guaranteeing function of ecosystems (para. 315). In this framing, rivers, forests, and soils are not inert backdrops to human life or objects of ownership or exploitable resources but entities with intrinsic value deserving protection and justice in their own right (para. 280). Extending the protective reach of the right to a healthy climate to ecosystems themselves, grounded in their life-sustaining functions (para. 315), the Court affirms that rivers, forests, and soils are not merely resources for human use but entities with intrinsic value deserving protection and justice in their own right (para. 280). This doctrinal shift acknowledges ecosystems as “complex and interdependent systems” whose disturbance triggers cascading harms across species (para. 279), highlighting the necessity of safeguarding ecological integrity to prevent irreversible, existential damage. Such reasoning mirrors the philosophical foundation of ecocide: that the environment warrants legal protection for its own sake, irrespective of demonstrable harm to humans or property, as the Rome Statute demands today. 

The implications are profound. In a global economy where high-level decision-makers often weigh profits and political advantage above long-term ecological stability, the criminalization of ecocide would shift the calculus. Reckless disregard for severe, lasting environmental damage would no longer be a cost of doing business, but a pathway to criminal liability. AO-32/25 thus positions ecocide not as a distant aspiration but as the logical next frontier in international law. Its call to transcend “the traditional anthropocentric approach” (para. 316) creates a conceptual bridge to criminalizing ecocide, uniting the pro natura and pro persona principles in a single normative arc. In sum, the AO contributes to thinking of prosecuting environmental damage without the need to prove collateral harm to humans or property. It protects the planet’s life-support systems on their own terms.

Conclusion:  A Call to Legal Convergence

The Inter-American Court’s advisory opinion is an invitation to fuse human rights, environmental law, and international criminal law into a coherent system of accountability. Alongside the Rome Statute, it shows how violations of the right to a healthy climate could constitute persecution, how corporate and non-state actors can be held accountable, and how large-scale environmental destruction may lay the groundwork for recognizing ecocide. These three scenarios illustrated the convergence of human rights obligations and international criminal law: each translates environmental damage into legally cognizable acts that threaten fundamental rights while potentially meeting thresholds for international criminal accountability.

As environmental devastation converges with the gravest international crimes, the question is no longer if courts should respond, but how they will work together to close the gaps. AO-32/25 may be remembered as the opening move toward a truly global architecture for environmental and climate justice.