When our laws align themselves with a higher understanding,
then we will have true equality and justice.
Martin Luther King Jr.
During the Vietnam War, the United States (US) began using Agent Orange, a potent herbicide mixture sprayed on tropical trees so that they would lose their thick canopies of tropical leaves that enemy soldiers used for cover or camouflage.Footnote 1 This agent, continuously sprayed all over South Vietnam, gradually caused extensive damage to the ecosystem.Footnote 2 To describe this situation and the harmful effects caused by such herbicides, biologist Arthur W. Galston coined the term ecocideFootnote 3 for the first time at the conference “War Crimes and the American Conscience”, held in Washington in 1970. Remembering the Nuremberg trials, the wilful destruction of an entire people and its culture, and the calling of this crime against humanity genocide, he defined ecocide as “the willful and permanent destruction of the environment in which a people can live in a manner of their own choosing ought similarly to be considered as a crime against humanity, to be designed by the term ecocide”.Footnote 4 Hence, Arthur W. Galston proposed the conclusion of an international agreement to ban ecocide. Swedish Prime Minister Olof Palme also evoked the idea of recognizing ecocide as an international crime in his opening speech at the Stockholm Conference on the Human Environment.Footnote 5
This comment argues that recognizing ecocide as a core international crime is both a legal imperative and a symbolic milestone in international law, marking a crucial step towards aligning international criminal law with environmental protection. Hence, in the following, the comment will briefly outline the historical and legal trajectory of ecocide, which is rooted in the legacy of Nuremberg (I), and has been revived in recent years by legal advocacy efforts and political support (II). The recent development at the International Criminal Court (ICC) on prosecuting environmental crime should not be read as an attempt to undermine the efforts to criminalize ecocide (III). The Ecocide definition proposed in 2021 by the Independent Expert Panel (IEP) is rooted in international humanitarian law (IHL) and developments in the Rome Statute (IV), which demonstrate that ecocide is not only normatively compelling but also increasingly actionable, with legal and political momentum building toward its formal codification. The latter would undoubtedly constitute both a legal revolution and a powerful symbolic act (V). This is confirmed by the great emphasis that this debate is provoking, pushing a growing number of states to recognize ecocide at the national level or jurisdictions increasingly willing to acknowledge the legal personality of natural objects (VI). To conclude, all that corroborates the idea that recognizing ecocide is not merely aspirational, but a logical and necessary extension of existing international legal commitments to protect both humanity and the planet (VII).
I. From genocide to ecocide: a historical legal trajectory
In the very early years, the origin of the term ecocide was closely linked to the experience of the destruction and crimes of World War II and, thus, to the recognized crime of genocide. Ecocide was related to war, and in fact, Richard A. Falk used to refer to “environmental warfare”.Footnote 6 Richard A. Falk carried out the first legal analysis of the term ecocide in 1973, trying to define its contours without arriving at a precise definition.Footnote 7 Following Arthur W. Galston’s idea, he proposed the adoption of an international convention on the crime of ecocide that would apply in wartime and peacetime.Footnote 8 Richard A. Falk’s draft convention defined ecocide as a crime under international law: an act committed with the intent to disrupt or destroy, in whole or in part, a human ecosystem through various means, including the use of weapons of mass destruction, herbicide, bombs, bulldozing equipment, weather modification techniques, and the forcible removal of people and animals.Footnote 9
Following these premises, a small step forwards was made in 1978 with the entry into force of the Convention on Environmental Modification Techniques (ENMOD Convention).Footnote 10 In Article 1, the ENMOD Convention states that “Each State Party to this Convention undertakes not to engage in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party”.Footnote 11 Furthermore, in Article 11 it defines “environmental modification techniques” as “any technique for changing – through the deliberate manipulation of natural processes – the dynamics, composition, or structure of the Earth, including its biota, lithosphere, hydrosphere and atmosphere, or of outer space”.Footnote 12 While the ENMOD Convention is a relevant instrument in that it takes environmental protection into account, its scope was indeed limited exclusively to environmental modification techniques in times of war or other military activities.
Hence, in 1978, the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities proposed adding ecocideFootnote 13 to the Genocide Convention.Footnote 14 This idea was vigorously defended by UN Special Rapporteur Benjamin Whitaker, who in 1985 published a reportFootnote 15 that suggested considering ecocide, ethnocide, and cultural genocide.Footnote 16
Negotiations also began on the first draftFootnote 17 of what would later become the Rome Statute of the International Criminal Court.Footnote 18 Consideration was then given to the idea of including the crime of ecocide in the draft Rome Statute, which contained the international crimes that arose from the Nuremberg Trials: war crimes, crimes against humanity, and genocide. However, the negotiators of the Rome Statute decided to exclude the crime of ecocide from the draft, which was undoubtedly a big gap.
II. The revival of the ecocide debate: 2021–2024 momentum
In recent years, the issue of criminalizing environmental damage has increasingly come to the fore at the national, regional, and global levels. As a result, the idea of including the crime of ecocide within the ICC’s jurisdiction has gained traction. Many civil society organizations and an increasing number of international law scholars and academics have supported it. In 2017, jurist and writer Polly Higgins and Jojo Mehta founded the Stop Ecocide Foundation to facilitate and stimulate the process of recognizing and including the crime of ecocide in the Rome Statute.Footnote 19 Thus, in 2020, the Stop Ecocide Foundation established an international expert panel of 12 experts, led by Philippe Sands and Dior Fall Sow, to develop a legal definition of ecocide.Footnote 20 On 22 June 2021, the IEP published the definition of 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”.Footnote 21
First, it is proposed to add a paragraph 2 bis to the preamble stating that “the environment is daily threatened by severe destruction and deterioration, gravely endangering natural and human systems worldwide”. Furthermore, to add the crime of ecocide to the list of crimes in Article 5 § 1 and to add Article 8ter specifying the meaning of the definition of ecocide.
Based on the IEP’s definition, on 9 September 2024, Pacific Island nations – Vanuatu, Fiji, and Samoa – submitted a proposal to the UN Secretary-General and the Working Group on Amendments of the Assembly of States Parties (ASP) seeking to amend the Rome Statute to recognize ecocide as an international crime alongside genocide, war crimes, crimes against humanity, and aggression.Footnote 22 A similar idea had been considered in 1991 during the drafting of the Code of Crimes Against the Peace and Security of Mankind.Footnote 23 The International Law Commission (ILC) had proposed criminalizing “willful and severe damage to the environment”, but it lacked sufficient political support.Footnote 24 So, the ICC Statute today only mentions environmental harm under Article 8 § 2, b, iv (see below), which criminalizes attacks during war that “would be clearly excessive in relation to the concrete and direct overall military advantage anticipated”.
III. Parallel paths: ICC policy on prosecuting environmental crimes
In April 2023, the ICC Prosecutor announced plans to develop a Policy on Environmental Crimes (the policy), which was later included in the Office’s 2023–2025 Strategic Plan.
The policy development process began in June 2023, led by Special Adviser Kevin J. Heller and Deputy Prosecutor Nazhat Shameem Khan. In February 2024, the ICC launched a public consultation, inviting input from states, organizations, legal experts, and other stakeholders.Footnote 25 Nearly 80 submissions were received, which contributed to informing the drafting process of the policy. Furthermore, the core drafting team also consulted with the United Nations Office on Drugs and Crime (UNODC), the United Nations Environment Programme (UNEP), and the Intergovernmental Panel on Climate Change (IPCC). The policy was drafted between April and November 2024, and the core writing team also incorporated feedback from various ICC divisions and advisers. On 18 December 2024, a draft was released for public consultation, followed by a call for additional revisions.Footnote 26
Regarding ecocide, the policy does not provide much guidance because the Office of the Prosecutor (OTP) must adhere to its mandate, which is structured by the current ICC Statute. Consequently, the prosecution of environmental crimes – the core of the actual OTP’s work – is thus distinct from the proposal to amend the Statute to criminalize ecocide. However, following Article 5 of the ICC Statute, the concept of environmental crimes in this Policy “shall not be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than [the] Statute”.Footnote 27
For this reason, the latest advances on the development of a policy to prosecute environmental crimes should not be seen as the intention of the OTP to undermine efforts to add ecocide as a fifth crime in the Rome Statute. Thus, the OTP’s current work on the prosecution of environmental crimes – of which a detailed analysis of the policy, as well as the reactions from academia, international organizations, and civil society and stakeholders, is beyond the scope of this comment – moves on a parallel and separate track from the proposal to amend the Statute.
IV. Legal architecture: anchoring ecocide to international law
This section illustrates how the definition of Ecocide is anchored in established principles of IHL (A) and the Rome Statute (B), reflecting a pragmatic approach designed to enhance its acceptability among Member States at the United Nations General Assembly (UNGA). This strategic anchoring acknowledges the importance of building on existing legal norms to facilitate the integration of ecocide into the international criminal law framework.
A. Anchoring ecocide to IHL elements
Articles 35 § 3Footnote 28 and 55Footnote 29 of Additional Protocol I (AP I) to the 1949 Geneva Convention refer to protection against “widespread”, “severe”, and “long-term harm”. Although the definition of ecocide borrows from the same definition of harm, there is a substantial difference between AP I and the definition of ecocide. In the latter, the terms widespread, severe, and long-term are alternatives. It is, therefore, sufficient that one of these requirements is met for the crime of ecocide to qualify. On the other hand, in AP I, these terms are cumulative. This makes the threshold for the crime of ecocide lower than for crimes under AP I. If what has just been said can be considered positive, there is no lack of reflection on the appropriateness of linking ecocide to elements of IHL. Indeed, as noted by Jérôme de Hemptinne, it is somewhat unusual to link ecocide to IHL when the proposed definition of ecocide does not require this crime to be committed in the context of an armed conflict.Footnote 30 The author also notes that damage caused to the environment is already recognized as a war crime in international armed conflict by Article 8 § 2 b, iv, ICC Statute.Footnote 31 As stated by Philippe SandsFootnote 32 and Christina Voigt,Footnote 33 tying the notion of ecocide to elements of the IHL convention, which has been widely ratified, was a conscious decision to make the inclusion of ecocide in the ICC Statute more acceptable to states. This had already occurred in the past for the recognition of the crime against humanity. The latter had to be committed “in execution of or in connection with” a crime against peace or a war crime for the Nuremberg Tribunal to have jurisdiction. With the recognition of the crime against humanity, it would, for the first time, be possible to qualify as international crimes and prosecute atrocities perpetrated against a state’s nationals or its allies, which could qualify as international offences.Footnote 34 The anchoring of the crime against humanity to other international crimes already accepted by the international community facilitated the process of including this crime in Article 6 of the Nuremberg Charter,Footnote 35 thus bypassing the problems related to compliance with the principles of nullum crimen sine lege and state sovereignty. In subsequent developments, the crime against humanity became a recognized and independent international crime. While it is true that the definition of ecocide is generally not linked to a war crime or other crimes in the Rome Statute,Footnote 36 the drafters of the IEP were moved by the same idea: to anchor the crime of ecocide to existing elements of an international crime to facilitate its acceptance and recognition by states.
B. Anchoring ecocide to elements of the Rome Statute
According to Article 8 § 2, a, iv of the ICC Statute, in the context of war crimes, the harm must “be clearly excessive in relation to the concrete and direct overall military advantage”. Articles 35 § 3 and 55 AP I did not provide this proportionality test. It is difficult to apply because it sets tensions between states in balancing the protection of the environment against safeguarding their strategic socioeconomic interests. This proportionality test is taken from the definition of ecocide, whereby “wanton damage” “must be clearly excessive in relation to the social and economic benefits anticipated”. Kevin J. Heller has pointed out that this parallelism would not be applicable in practice since the wantonness requirement would present critical issues related to the test that inhere in the cost-benefit analysis and the subjective nature of “reckless disregard”.Footnote 37 Moreover, other scholars point out the parallelism between Article 30 of the ICC Statute and the intentional element of the definition of ecocide, “knowledge of substantial likelihood”, which excludes the applicability of serious “negligence”.Footnote 38
Finally, the definition of ecocide incorporates the principle of individual criminal liability as provided in Article 25 § 1 of the ICC Statute. While this is positive, excluding corporate liability from the definition represents a shortcoming since, for example, multinational corporations cannot be directly sanctioned or obliged to repair the environmental damage they cause.Footnote 39
Christina Voigt attempted to respond directly to these criticisms, not denying the weaknesses and shortcomings of the ecocide definition but explaining that the IEP needed to be guided by a realistic and pragmatic approach to maximize the chances of adoption.Footnote 40 Philippe Sands has repeatedly stated that he is aware of the shortcomings of the definition and that, following contingencies imposed by the ICC regime, the definition is restrictive. In addition to the supposed structural shortcomings,Footnote 41 the definition is, for example, insufficient when viewed from the perspective of scientists studying the environment, climate change, or the more daring environmental protection activists.Footnote 42 However, it represents an essential first step towards accepting and recognizing the definition of the crime of ecocide, which is now no longer a question of itself but a question of when it will be adopted.Footnote 43
V. Beyond codification: ecocide as a legal and symbolic revolution
Just as it was in the past for the recognition of crimes against humanity, the recognition of the crime of ecocide, notwithstanding the many critical remarks made above,Footnote 44 would represent a real legal revolution. Some scholars have tried to explain its significance by advancing several considerations:
• Non-anthropocentric nature: Ecocide would be the first international crime with a non-anthropocentric focus, emphasizing serious and widespread or long-term environmental damage. Despite the debates,Footnote 45 the primary objective is to protect the environment,Footnote 46 with indirect human benefits, without compromising the ecocentric focus.
• Unorthodox drafting process: The privately organized IEP from civil society drafted the definition of ecocide, which contrasts with the processes of the ILC and the Sixth Committee of the UNGA. Although the IEP’s work lacks formal UN procedures, it is crucial to stimulate serious reflection within UN bodies.
• Revolutionary alignment between International Environmental Law (IEL) and International Criminal Law (ICL): On this point, Jorge E. Viñuales notes that the adoption of ecocide as a crime would align IEL and ICL, with the latter having the role of clarifying the elements and actus reus of ecocide.Footnote 47 This alignment aims to criminalize only serious acts that damage the environment while allowing sustainable economic activities, reflecting the essence of criminal law to minimize human freedom.
• Positive implications for global peace, security, and respect of human rights: The United Nations Environmental Programme (UNEP) has explored the positive implications of new laws in combating the planetary crisis.Footnote 48 In this sense, criminalizing ecocide would fill key gaps in international law, allowing a move beyond procedural requirements (such as reporting and transparency) to introduce enforceable legal obligations that hold individuals and corporations accountable, not just states. Stimulating this shift towards strengthening enforcement mechanisms would ensure more effective action to prevent environmental harm rather than relying on post-damage reparations. This issue is being increasingly recognized, which confirms Philippe Sands’ assumption that ICL should develop to better align with the reality of what environmental destruction does to people, ecosystems, and species.Footnote 49 Indeed, it must be recognized that the legal frameworks available today are inadequate because they do not contain rules for addressing large-scale environmental harm during peacetime. Despite the provision of Article 8 § 2, b, iv, of the Rome Statute, the ICC is not yet prosecuting environmental crimes during armed conflicts. Criminalizing ecocide would represent a substantial contribution to filling this legal gap.
• Structural deficits in ICL: Ecocide addresses two structural issues in ICL. It applies in peace and conflict, challenging the prevailing bias towards criminality during armed conflicts.Footnote 50 It also prompts reflection on the exclusion of corporate crime in the Rome Statute, with the provision that companies or states may be the main perpetrators.Footnote 51
• Ratione personae jurisdiction: Many acts of ecocide are committed by corporations, posing a challenge for the ICC, which currently lacks jurisdiction over legal persons. However, ICL applies to individuals, meaning corporate leaders could still be held accountable under existing provisions of the Rome Statute. Indeed, Article 25 § 3 (c) allows for individual criminal responsibility if a person aids or facilitates a crime, which could apply to corporate executives who enable ecocide. Additionally, Article 25 § 3 (d) holds individuals accountable when they contribute to crimes committed by a group of persons acting with a common purpose. On this point, Andrew Clapham notes that including Article 25 § 3 (d) in the ICC Statute allows us to assume that the concept of collective entity is present in the ICC Statute.Footnote 52 Building on that, scholars such as Naima Fifita, Kevin J. Keller, Kate Mackintosh, Rebecca Hamilton, and the UN Special Rapporteur on toxics and human rights Marcos Orellana, point out that this article will be substantially operationalized should ecocide be recognized as an international crime because it will help in filling the gap of ICC’s jurisdiction over legal persons.Footnote 53 This would be a substantial improvement, considering that a relevant part of the crimes which would be persecuted under the definition of ecocide are committed by corporations.Footnote 54
As some scholars have pointed out, the symbolic power of an international crime, including ecocide, has a deterrent effect, influencing actors’ decisions before they are adopted, or they may incur prosecution.Footnote 55 The proposed definition of ecocide may already cause corporate actors to rethink their business models, anticipating potential future prosecutions.
Furthermore, Philippe Sands and Jaqueline Peel point out that ecocide represents a significant step towards recognizing the unity and interdependence of the natural environment, challenging the historical fragmentation of international law.Footnote 56 Public international law has traditionally divided the environment among sovereign states, conflicting with its inherent interconnectedness. The crime of ecocide represents an advance in respect, protection, and recognition of the fundamental interdependence between the environment and humanity.Footnote 57
Paola Gaeta has rightly observed that the legal definition of ecocide is revolutionary and symbolic.Footnote 58 It is revolutionary because it incorporates an eco-centric perspective into the ICL and emphasizes the need to criminalize corporate conduct. Conceptually, it balances environmental and criminal law, potentially strengthening environmental protections. The innovative drafting of the IEP may serve as a model for future civil society actions. Furthermore, the definition of ecocide is symbolic, as it compares it to genocide, which is the “crime of crimes” and reflects global values through criminal law. Philippe Sands, concurring with Paola Gaeta’s remarks, acknowledges that the legal and political campaign for ratification is long. Still, it is essential that ecocide, with the work of the IEP, has become firmly rooted in the international community’s agenda, ensuring continued discussions that will undoubtedly lead to positive developments, regardless of whether ecocide becomes the fifth international crime, is codified in a convention, or evolves into customary law.Footnote 59
VI. Legal developments beyond international legal recognition
As stated by the IEP members, the International Court of Justice’s jurisprudence has been crucial in stimulating the path now being taken towards the legal understanding of the crime of ecocide. In the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons of 1996, the ICJ recognized that “the environment is under daily threat”. It affirmed that “environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including unborn generations”, and further confirmed that “the general obligation of States” to ensure the protection of the environment forms a part of the corpus of international law.Footnote 60 This Advisory Opinion (AO) led to several significant developments in international environmental law. Thanks to this AO, the debate on ecocide gradually gained momentum to the extent that the IEP made it the basis of its work, so much so that it proposed to include an extract from it in the preamble of the Rome Statute.
The process of recognizing the crime of ecocide is still ongoing, but more and more states have adopted national laws recognizing it. It was Vietnam, whose ecosystem was being progressively destroyed by the US during the war, that first identified the crime of ecocide.Footnote 61 The number of states adopting national laws recognizing the crime of ecocide is gradually increasing. At the European level, for example, France was the first country to recognize ecocide in 2021,Footnote 62 and draft laws have been presented and are being considered in Belgium and the Netherlands.Footnote 63 In Latin America, in June 2023, an “Ecocide Bill” was proposed in Brazil,Footnote 64 which, if adopted, would enable Brazil to join Ecuador.Footnote 65 In North America, an amendment to the Federal Criminal Code was proposed on 30 July 2023 to recognize ecocide based on the proposal made by the IEP.Footnote 66
In 1972, Christopher Stones wrote:
It is not inevitable, nor wise, that natural objects should have no rights to seek redress on their behalf. There is no answer to say that streams and forests cannot have standing because streams and forests cannot speak. Corporations cannot speak either, nor can states, estates, infants, incompetents, municipalities, or universities. Lawyers speak for them as they customarily do for ordinary citizens with legal problems. One ought, I think, to handle the legal problems of natural objects as one does the problems of legal incompetents – human beings who have become vegetables. If a human being shows signs of becoming senile and has affairs that he is de jure incompetent to manage, those concerned with his well-being make such a showing to the court, and someone is designated by the court with authority to manage the incompetent’s affairs. The guardian … then represents the incompetent in his legal affairs. Courts make similar appointments when a corporation has become “incompetent” – they appoint a trustee in bankruptcy or reorganization to oversee its affairs and speak for it in court when necessary.Footnote 67
In the 1970s, Christopher Stones’ purpose was only a mirage. Nowadays, more jurisdictions recognize the legal personality of natural objects (such as watercourses, lakes, forests, and natural parks).Footnote 68 Granting legal personality to natural objects means recognizing that they have certain rights and interests, like those given to natural persons or legal entities. In practice, it means treating them as a subject of law with the capacity to act legally and enjoy legal protections, which gives them legal standing. These initiatives, although few and ill-defined (with standards that can vary significantly between countries and without clear global rules), are associated with the idea of strengthening environmental protection and supporting rights and nature conservation.
Finally, the reflection on the relationship between the recognition of ecocide as a crime and decolonization issues is also of great relevance. Philippe Sands illustrates this point by explaining why and how ecocide relates, for instance, to the long-standing issue of the Chagos Islands.Footnote 69
VII. Conclusion
The anchoring of the definition to elements of IHL and ICC reflects a pragmatic strategy aimed at maximizing acceptance by UNGA Member States. The decision to link ecocide to established IHL and ICC concepts was guided by an awareness of the need to facilitate the inclusion of this new crime in the international legal framework.
Although the IEP’s definition is criticized for alleged scientific gaps and weaknesses, it represents a significant step towards the global recognition of the crime of ecocide. Its symbolic power extends beyond the mere legal perspective, contributing to effective pre-deterrence and consolidating ecocide as a significant global issue.
The proposed amendments to the Rome Statute, including the addition of the crime of ecocide, are part of a development process aimed at aligning international environmental and criminal laws. While the shortcomings of the definition are recognized,Footnote 70 as well as some scholars’ critical analysis and reflection on an “imbroglio” new crime,Footnote 71 its adoption would represent a far-reaching legal revolution, paving the way for a new era of international accountability for serious and systematic environmental damage.
The discussion on ecocide has already influenced the legal landscape at the national level, with several states adopting national laws recognizing the crime of ecocide. This, along with the growing trend of granting legal personality to natural objects in various jurisdictions, suggests a paradigm shift in environmental protection.
The recognition of ecocide as a crime would represent a legal and symbolic revolution, paving the way for a non-anthropocentric perspective and promoting the unity and interdependence of the environment and humanity. This will better ensure justice for affected communities and mark significant progress in closing legal gaps, enabling individuals and private actors to be held accountable for large-scale environmental harm. It would also facilitate the creation of pathways for victims to seek reparations and encourage sustainable development by discouraging harmful practices. This is necessary, and it is a matter of when it will happen.Footnote 72 Indeed, the debate is already catalysing significant legal developments, suggesting this possible avenue in the future landscape of international law.
Acknowledgements
The author sincerely appreciates the insightful and constructive comments and recommendations from the two anonymous reviewers, as well as Dr Nilüfer ORAL, Director of the CIL-NUS, and Rashmi RAMAN.
Funding Statement
None.
Competing Interests
The author declares no competing interests.
Vincenzo ELIA is research associate at the Centre for International Law, National University of Singapore and PhD Candidate in International Law and European Union Law at the University of Geneva and Alma Mater Studiorum – University of Bologna.
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