The Time to Criminalize Ecocide is Here, But a Fifth International Crime Could Hurt the Very System From Which it Draws Power and Legitimacy

[Roberta Chardulo Andrade, PhD, is a T32 Postdoctoral Research Fellow at the Penn State College of Medicine, and she is interested in topics that lie at the intersection of international law, international relations, and planetary health.]

[Funding statement: This publication was supported by the Health Resources and Services Administration (HRSA) of the U.S. Department of Health and Human Services (HHS) as part of the award T32HP42015 totaling $583,852 with 17% financed with non-governmental sources. The contents are those of the author and do not necessarily represent the official views of, nor an endorsement, by HRSA, HHS, or the U.S. Government. For more information, please visit HRSA.gov.]

On September 11, 2023, during his opening speech at the 54th session of the United Nations Human Rights Council, Volker Turk, UN High Commissioner for Human Rights, stressed the need to hold accountable those responsible for egregious environmental harm. Recognizing the decade-long push by some states and civil society groups to criminalize ecocide at the international level, he stated, “I welcome consideration of this and other measures to expand accountability for environmental damage, both at the national and international level.”

Turk’s statement, in addition to a growing number of countries seeking to criminalize ecocide nationally, appears to place us one step closer to making ecocide the fifth international crime, alongside genocide, war crimes, crimes against humanity, and the crime of aggression. In light of current worldwide environmental catastrophes, including severe wildfires in Maui and Canada, glaciers and ice caps melting at alarming rates, and masses of dead dolphins washing ashore in the Black Sea, to name a few, this seems a welcome and reassuring development.

However, criminalizing ecocide at the international level runs the risk of inadvertently weakening the very system from which the concept would draw its legitimacy—namely, the system of international law. This is a bold claim and requires us to look at international law from a political vantage point—that is, as integral to international politics—whilst still paying attention to the detail of the law.

Amending the Rome Statute of the International Criminal Court

Legally formalizing the notion that mass environmental harm is an international criminal offense draws on the regulatory power of international criminal law to proscribe certain acts and to hold accountable those who do commit such acts. This imposes limits on the sovereignty that states and individuals within states have traditionally enjoyed over the use of their own natural environment.

In the case of the crime of ecocide, advocates have proposed a formal amendment to Article 5 of the Rome Statute that would allow the ICC to exercise jurisdiction over cases of ecocide. Pursuant to Article 121 of the Rome Statute, amendment proposals are to be approved by consensus, but where consensus cannot be reached, proposals must be supported by a two-thirds majority of States Parties. Furthermore, an amendment to Article 5 is only to come into force for those States Parties that have expressly accepted it by means of an instrument of ratification or acceptance.

As is the case of many multilateral treaties, the amendment provisions in the Rome Statute seem cumbersome at best (as highlighted here and here) and create significant political hurdles that need to be overcome if ecocide is to be placed under the jurisdiction of the ICC. Not surprisingly, some commentators have suggested that proposals to criminalize ecocide carry, by and large, symbolic value. But, if we are to take the campaign to criminalize ecocide seriously, we should consider, even if hypothetically, some practical ramifications of the concept being fully instantiated into the system of international law.

Successfully Amending the Rome Statute Does Equal Universal Support for Ecocide

One of the main ideas driving the movement to legally formalize ecocide as an international crime is that doing so would formally mark an international shift in consciousness about “the value of the natural world and its worthiness of protection.” This would categorically affirm that mass environmental destruction will not be tolerated any longer.

The problem with this line of thinking is that embedding a crime of ecocide in the Rome Statute does not necessarily signal universal acceptance of the concept, most basically because ICC membership is not universal. A number of countries that have the power to stymie efforts to combat mass environmental destruction via international criminal law are not parties to the Rome Statute, including the United States, India, China, and Russia, as well as several countries in Southeast Asia.

It is true that some of these countries have recognized the seriousness of severe environmental destruction at the national level (see, for example, Russia’s Criminal Code and Vietnam’s Penal Code, both of which criminalize in some form massive environmental destruction). But their non-acceptance of ICC jurisdiction gives us enough reason to believe that these countries would at least be weary of accepting that their nationals be prosecuted for environmental crimes at an international court.

Beyond the issue of universality, even if an amendment to the Rome Statute is successful, it would, in any case, only apply to those States Parties that have expressly accepted it. As Kevin J. Heller has noted, “[a]s with the aggression amendments, the states most likely to commit ecocide would simply decline to accept the ecocide amendment.” One effect of this would likely be the further fragmentation of an already weakened system of international criminal law.

Seeking a Universal Definition of Ecocide

Embedding ecocide in the Rome Statute would require states to agree on a definition of the term, which is naturally easier said than done. (The most recent international definition of ecocide, proposed in 2021 by the Independent Expert Panel for the Legal Definition of Ecocide [IEP], has indeed been widely criticized, with scholars and commentators arguing that it is not adequately ecocentric, in some respects not straightforward enough, and deeply flawed.)

So, even if ICC member states were to support ecocide in principle, they may very well have different views on the specific acts that should be criminalized in practice. Of course, this could be addressed by “watering down” the definition of ecocide so that securing widespread agreement among members of the ICC becomes more realistic. This “lowest common denominator” approach is, indeed, commonly adopted to secure support for multilateral environmental agreements. However, not only does this not guarantee compliance with the rules in question, but it usually results in agreements that are weak at best in their capacity to address the problem they were created to solve.

I cannot, of course, suggest with any certainty that this will be the fate of proposals to criminalize ecocide. But, considering that out of 123 ICC members, only a small number of states have expressed overt support for the concept, it would not be far-fetched to suggest that the limits imposed on states by legally formalizing a new crime of ecocide will likely go well beyond what states are currently willing to accept and that widespread agreement would likely be reached at the expense of a stronger definition. On the other hand, the fact that the current definition still allows for a cost-benefit analysis of the environmental harm, no matter how extensive, leads us to think that the definition, as it is, has already been significantly watered down.

This does not inspire much hope as to the likelihood of securing widespread support among states for a crime of ecocide, certainly not within a short enough timeframe and with a robust enough definition to make the decisive and timely impact on efforts to halt mass environmental destruction. Indeed, as Panel co-chair Professor Philippe Sands commented, a positive outcome of this process would simply be non-rejection by states of the notion that the time has come for states to reflect on the idea of ecocide. Such a weak outcome would certainly highlight the extent to which the creation of new international law is influenced by the political preferences of states, as opposed to it being an a-political process that, if complied with, would actually solve the problems it was created to solve.

Preserving the (Symbolic) Power of International Law

Striking a balance between a definition of ecocide that has enough force and one that is widely supported by the international community of states is a difficult task, and I am not the first to commend the efforts of ecocide advocates (and the IEP) in seeking that balance. Moreover, I too believe that a shift in international consciousness, which recognizes that “[h]uman progress is no excuse to destroy nature,” is not only desirable but necessary if we are to prevent catastrophic environmental destruction to our planet.

But efforts to criminalize ecocide should be approached with caution so that they do not inadvertently undermine the system that ecocide would ultimately draw its power from—that is, the system of international law. From a political vantage point, the power of international law rests not so much on what it does or does not allow states to do but rather in a few assumptions about the normative ideal, or ideology, of international law—or, in other words, what international law ought to be.

These assumptions or principles include, inter alia, that international law treats all states equally, that it is possible to distinguish clearly between legal and illegal behavior, that the rules of international law are compulsory, and that international law is ultimately distinguishable from, and superior to, politics. While it is all too easy to think of instances when these principles proved not to be necessarily true, the nature of an ideology requires that members of a community—in this case, the international community of states—communicate on the assumption that these principles are true. This is what has been called the political obligation of states towards international law. As the primary medium of communication between states in the post-Second World War era, states and non-state actors have often sought to gain legitimacy for their foreign policy preferences and normative proposals by associating them with the idea of international law and seeking to embed them in the international legal system.

Criminalizing ecocide in the Rome Statute is a case in point: not only would it impose tangible limitations on the freedom of states and their nationals to exploit the Earth’s environment, but it would have the important (symbolic) effect of “convey[ing] a message to the broader international audience that harming the environment is wrong and punishable.” (This is, indeed, argued to be a key function of international criminal law.) But drawing on the (symbolic) power of international law is only effective if international law is perceived to have power, and efforts that lead to the fragmentation of international law or that highlight the extent to which international law-making is inherently intertwined with politics run the risk of weakening—not strengthening—the ideal of what international law ought to be.

The Bath Water Needs to Go, but We Must Keep the Baby

To be clear, I am not suggesting that proposals to criminalize ecocide are not worthwhile. Instead, I am seeking to draw attention to the broader political implications that may result from embedding ecocide in the system of international law. In doing so, I am highlighting that, while it is imperative that we find ways to stop mass environmental destruction, we must be careful not to do so in a way that weakens the very system from which the crime of ecocide would draw its regulatory power and legitimacy.

It is often the case that new legal norms proposed by non-governmental organizations or civil society groups contain far more idealistic rules than what many states are willing to accept (the Responsibility to Protect norm is a case in point, albeit it is not legally binding). And in an international system where states are not only diverse but also juggling several competing national and international interests, some level of fragmentation and politicization when new international legal norms are negotiated is likely inevitable.

But as the ecocide debate proceeds—and it certainly is (see here, here, and here)—we must keep in mind that the system of international law is much more than a symbolic repository of wishful thinking and good intentions. Instead, it is an autonomous system with power in its own right, and in order for it to remain powerful so as to give a concept like ecocide the legitimacy and sway it needs, the principles underpinning the ideology of international law need to appear—and to be perceived by the international community of states—as being true.