Argument Continued

Creating a new crime, as proposed by the Expert Panel and others, divorces ecocide from the specific requirements of existing crimes, whether that be the conflict nexus noted above, a widespread or systematic attack directed against a civilian population,8 the specific intent of destroying in whole or in part a protected group of people,9 or the use of armed force by a State against the sovereignty, territorial integrity, or political independence of another State.10 Creating a new crime also disentangles ecocide from anthropocentric understandings of harm, enabling the destruction of the environment to be recognized as a harm in its own right.11 This represents an important conceptual shift in international criminal law, furthering the crime’s expressive value by acknowledging environmental destruction as worthy of criminalization independently of its impact on human populations.

III. Ensuring Legality

Defining ecocide faces challenges due to the principle of legality, which mandates that crimes be clearly defined so individuals understand prohibited conduct. This principle is codified in the Rome Statute and includes nullum crimen sine lege, which prevents retroactive punishment.12 In practice, international courts have been flexible around legality when considering universally abhorrent crimes like forced marriage.13 However, this flexibility becomes difficult in cases of environmental harm, where clear prohibitions are lacking.14 International environmental law often leaves balancing economic and environmental needs to national systems, creating uncertainty. Any new ecocide law must therefore navigate the need for clear definitions without inhibiting flexibility to the extent that it undermines any prospect of state acceptance.15

Some past definitions have favored listing specific acts, like crimes against humanity.16 Listing acts provide clarity but risks excluding unforeseeable future harms.17 In contrast, the Expert Panel preferred a more general, formulaic approach. This also has both advantages and disadvantages. On the one hand, it provides flexibility to encompass diverse forms of environmental destruction that may not have been anticipated at the time of drafting. On the other hand, it places significant interpretive burdens on prosecutors and courts to determine what constitutes ecocide in practice. I would suggest that a hybrid approach, combining a general definition with illustrative examples of ecocidal acts (while retaining a residual category for novel forms of harm), might better balance the competing demands of legal certainty and adaptability. Such an approach would provide clearer guidance to potential defendants while maintaining the flexibility necessary to address evolving forms of environmental destruction. Definitions may evolve through real case law, and other sources of law (such as environmental law) can be used to interpret the terms, but drafters should ensure the definition is specific enough to comply with legality requirements. This includes setting a clear gravity threshold and intent, both of which pose further challenges for creating an effective ecocide law.

A. Determining Appropriate Gravity

International criminal law is premised on the idea that individuals should be held criminally liable for crimes that “deeply shock the conscience of humanity.”18 A threshold must therefore be identified that enables accountability while distinguishing ecocide from other, less serious environmental crimes. Previous definitions have drawn from the language of genocide, identifying ecocide as acts which “disrupt or destroy, in whole or in part, a human ecosystem,”19 or used similar thresholds as contained in the Rome Statute’s environmental war crime: “widespread,” “long-term,” and “severe.”20

The appropriate use of “widespread,” “long-term,” and “severe” in any ecocide proposal has attracted differing perspectives. For example, Smith has argued that the conjunctive approach, currently used in Article 8(2)(b)(iv) of the Rome Statute, is too high “to be of any real use in preventing environmental damage in the theatre of war [but] may be just the right standard by which to judge the magnitude of environmental damage amounting to ecocide.”21 In contrast, an Expert Panelist has argued that the conjunctive approach is “appropriate for environmental harm during military attacks [but] too high for ecocide.”22 Instead, the Expert Panel chose to make the criteria disjunctive, shifting from “long-term, widespread and severe” to “severe and either widespread or long-term damage.”23

This approach has been praised for providing a less demanding test for assessing harm.24 However, the Expert Panel definition has received significant critique for requiring “severe and either widespread or long-term damage” to be unlawful or wanton, meaning clearly excessive in relation to the social and economic benefits anticipated. For some, the assumption that ecocide might be acceptable in the name of human progress reflects a similar anthropocentric logic to that which has “weakened international environmental law to date.”25

In response to these critiques, Expert Panelist Voigt highlighted the need for tactical decision-making, arguing that:

[A] definition adopting an exclusively ecocentric approach or an explicit reference to planetary boundaries could perhaps have given a stronger environmental signal but might have been detrimental to the likelihood for being adopted.”26

Others have also defended the choice to introduce some kind of proportionality test, with Robinson arguing that to do otherwise would be to ignore the realities of human impact on the environment and risk over criminalization.27

I would suggest that, at a minimum, the use of “clearly excessive” rather than simply “excessive” should be avoided and that less onerous proportionality tests (such as the concept of “unjustified risk” used in some domestic jurisdictions) should be explored.28 It is worth considering whether there should be levels of harm that are considered ecocidal regardless of the benefit anticipated. There is precedent for such an approach in international humanitarian law. Under Additional Protocol I,29 harm that is widespread, severe, and long-term violates the Protocol regardless of the military benefit anticipated.30 However, I do not argue that an “impact-only” approach should entirely replace a “disproportionality” test. While I see the logic of prohibiting environmental destruction of a certain gravity, there are strong arguments for retaining an element of wrongfulness.

The proportionality test embedded in the Expert Panel definition raises deeper questions about the values we wish to protect through international criminal law. By requiring damage to be “clearly excessive” in relation to anticipated social and economic benefits, the definition implicitly accepts that some level of severe environmental harm is permissible if the benefits are deemed sufficiently great. This utilitarian calculus sits uneasily with the notion that certain ecosystems, species, or natural processes might possess intrinsic value worthy of protection regardless of human benefit. A more robust definition might establish absolute prohibitions for certain categories of harm (such as the complete destruction of unique ecosystems or the extinction of species) while retaining proportionality assessments for less severe impacts. Such a tiered approach would better reflect the reality that not all environmental harms are commensurable or can be meaningfully weighed against economic benefits.

B. Defining Intent

Perhaps no aspect of ecocide’s definition has proven more contentious than the mental element. Criminalizing an environmental harm in the international criminal system brings challenges around determining intent. Domestic environmental crimes are often strict liability offenses; some previous definitions of ecocide have proposed the same.31 A strict liability approach can be defended as being more reflective of the reality of environmental harm. While the destruction of the environment can certainly be used as a tool of war or oppression, it is more often the consequence of the pursuit of other goals, often financial profit. Yet, strict liability is hard to justify in the context of international criminal law, a system designed to signal heavy stigma and apply severe penalties.

The Expert Panel offers a compromise using “wanton,” a mens rea requirement closer to “recklessness” or “dolus eventualis.”32 This creates a complex dual requirement: prosecutors must establish both that the accused had knowledge of the potential environmental harm and that they proceeded despite recognizing this harm would be clearly excessive relative to anticipated benefits. This subjective assessment of benefit and excessiveness introduces significant uncertainty into the prosecutorial process, similar to existing difficulties in proving excessive collateral damage in war crimes.33

It may be that lessons can be learned from international environmental law. Matthew Gillett has argued that concepts such as the precautionary principle might usefully assist courts grappling with the lack of direct intent, by directing focus onto the “knowing assumption of risks and failure to take preventive measures.”34 While some might consider lowering intent to this degree (that is, to something more akin to negligence) inappropriate in international criminal, some precedent exists, for example, in the context of command responsibility.35

The question of omissions deserves particular attention in the context of environmental crimes. Many of the most severe forms of environmental destruction result not from affirmative acts but from failures to prevent foreseeable harm. For instance, a corporation’s failure to implement known pollution controls, a state’s failure to enforce environmental regulations, or a financial institution’s failure to assess environmental risks in its lending practices can all result in catastrophic environmental damage. The Expert Panel definition’s reference to “acts or omissions” acknowledges this reality, but the practical application of omissions liability in international criminal law remains underdeveloped. Establishing when an omission rises to the level of criminal liability requires clear articulation of the duties owed, the foreseeability of harm, and the capacity to prevent it. Without further elaboration of these elements, the omissions component of the definition may prove difficult to operationalize in practice.

A final alternative is to consider varying degrees of intent (such as intentional, reckless, and negligent) with varying levels of penalty. Such an approach has received only limited attention and may be more appropriately applied in domestic contexts than at the ICC.36 A graduated approach to intent would recognize that environmental harms arise from diverse mental states and that the law’s response should be calibrated accordingly. Deliberate environmental destruction motivated by malice or indifference might warrant the harshest penalties, while reckless disregard for environmental consequences might merit intermediate sanctions, and negligent failures to prevent foreseeable harm might trigger lesser but still meaningful accountability. While such gradations are familiar in domestic criminal law, their incorporation into international criminal law would require careful consideration of how different intent standards interact with other elements of the crime.

C. Barriers to Accountability and Repair

Even if a robust definition of ecocide were approved for inclusion in the Rome Statute, the introduction of a new crime, without further changes to the Rome Statute, will encounter barriers to meaningful accountability. I want to flag two here: first, the inability to hold legal persons (corporations) criminally liable, and second, the inability to recognize the natural world as a victim entitled to reparation in its own right.

The ICC’s personal jurisdiction extends only to natural persons, excluding legal persons from its accountability regime.37 Some have argued that this is a strength of the ICC, offering deterrence by raising the stakes for specific individuals rather than corporations.38 However, my concern comes from the ability of corporations to distance themselves from crimes perpetrated in the name of profit.39 A focus on deviant individuals may even lead to trial narratives that “reinstate the business actor into good society,” rehabilitating the corporation while penalizing the individual.40 Furthermore, environmental destruction is frequently the product of corporate decision-making structures that diffuse responsibility across multiple actors, making individualized attribution challenge. Corporate boards, management committees, and operational hierarchies all contribute to decisions that result in environmental harm, yet the Rome Statute’s focus on individual liability struggles to capture this collective dimension of corporate wrongdoing. Without corporate liability, the ecocide framework risks allowing the corporate entities that profit most from environmental destruction to escape accountability.

Turning to matters of repair, the ICC’s ability to award reparations to victims of convicted persons is an often-overlooked benefit of pursuing ecocide through the ICC’s framework. In theory, this ability could facilitate environmentally restorative measures, as well as other forms of reparation to impacted communities. These might involve, for example, compensation for the loss of natural resources, reforestation and other environmental restoration projects, guarantees of non-recurrence, and symbolic measures which recognize what has been lost.41 However, the ICC’s framework also limits recipients of reparations to natural and legal persons, excluding other-than-human natural entities such as animal species, forests, or waterways.42

The question of who can be recognized as a victim of ecocide has profound implications for how we understand the harm itself. If victims are limited to human individuals and communities, then ecocide remains conceptually tethered to an anthropocentric worldview in which environmental destruction matters primarily because of its impact on people. This framing, while politically pragmatic, fails to capture the full moral weight of environmental destruction. The extinction of a species, the destruction of an ancient forest, or the pollution of a river system represents a harm that transcends human interests, touching on questions of intrinsic value, intergenerational responsibility, and our relationship with the non-human world. Expanding the category of victims to include other-than-human natural entities would signal a fundamental shift in how international law conceptualizes environmental harm, recognizing that certain harms are wrongful not merely because of their consequences for human welfare but because they violate the integrity and dignity of the natural world itself. The Expert Panel definition’s silence on this question represents a missed opportunity to advance a more ecocentric understanding of environmental crime.

IV. Conclusion

I consider the campaign to criminalize ecocide to be a potentially valuable endeavor. If the goal of international criminal law is to condemn crimes that shock the conscience of humanity, then there is expressive value in including ecocide on that list. I argue that the strongest version of ecocide would involve the creation of a new international crime detached from the requirements of other core crimes, listing examples of acts while including a residual category to balance foreseeability with flexibility. It would avoid overly onerous cost-benefit analysis, embrace an understanding of intent that includes recklessness and omissions informed by environmental law principles, extend jurisdiction to corporations, and recognize other-than-human natural entities as victims. I am clear-eyed about the likelihood of such changes ever being made to the Rome Statute, given the political and corporate interests at stake in this discussion. It is also obvious that criminalization, even successful criminalization, could only ever represent one limited tool among the many needed to address environmental destruction and climate crisis. Ultimately, I believe a new crime would represent meaningful progress in an imperfect system.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], available online. ↩

2. 2.

   Stop Ecocide Foundation, Independent Expert Panel for the Legal Definition of Ecocide: Commentary and Core Text (Jun. 2021) [hereinafter IEP Definition], available online. ↩

3. 3.

   Rachel Killean & Damien Short, A Critical Defence of the Crime of Ecocide, Envtl. Pol. (Apr. 24, 2025), available online, doi. ↩

4. 4.

   Carsten Stahn, Justice as Message: Expressivist Foundations of International Criminal Justice (OUP, 2020), paywall, doi. ↩

5. 5.

   Richard A. Falk, Environmental Warfare and Ecocide—Facts, Appraisal, and Proposals, 4 Bull. of Peace Proposals 80 (Mar. 1973), paywall, doi. ↩

6. 6.

   Benjamin Whitaker, Special Rapporteur, U.N. Doc. E/CN.4/Sub.2/1985/6, Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide (Jul. 2, 1985), available online. ↩

7. 7.

   Jessica C. Lawrence & Kevin Jon Heller, The Limits of Article 8(2)(b)(iv) of the Rome Statute, the First Ecocentric Environmental War Crime, 20 Geo. Int'l Envtl. L. Rev 61 (2007), available online. ↩

8. 8.

   Rome Statute, supra note 1, at Art. 7. ↩

9. 9.

   Id. Art. 6. ↩

10. 10.

    Id. Art. 8 bis. ↩

11. 11.

    Rachel Killean & Elizabeth Newton, From Ecocide to Ecocentrism: Conceptualizing Environmental Victimhood at the International Criminal Court, 31 IRV 238 (May 2025), available online, doi. ↩

12. 12.

    Rome Statute, supra note 1, at Art. 22. ↩

13. 13.

    Cristopher Tavoa, Critical Evaluation on Ecocide as to Whether or Not It Should Be a Serious Crime Under the Rome Statute of the International Criminal Court, 22 JSPL 164 (Dec. 2020), paywall, earlier version available online. ↩

14. 14.

    Darryl Robinson, Your Guide to Ecocide: Part 1, Opinio Juris (Jul. 16, 2021), available online. ↩

15. 15.

    Maud Sarliève, Ecocide: Past, Present, and Future Challenges, in Encyclopedia of the UN Sustainable Development Goals: Life on Land 233 (Walter Leal Filho, Anabela Marisa Azul, Luciana Brandli, Amanda Lange Salvia & Tony Wall eds., Nov. 2020), paywall, doi. ↩

16. 16.

    Kathia Martin-Chenut, Laurent Neyret & Camila Perruso, Rumo à internacionalização da proteção penal do meio ambiente: dos ecocrimes ao ecocídio [Towards the internationalization of criminal protection of the environment: from ecocrimes to ecocide], 12 RDI 541 (Dec. 2015) (Braz.), available online, doi. ↩

17. 17.

    Joanna Nicholson, Strengthening the Effectiveness of International Criminal Law Through the Principle of Legality, 17 Int’l Crim. L. Rev. 656 (2017), available online, doi. ↩

18. 18.

    Rome Statute, supra note 1, at Preamble. ↩

19. 19.

    Falk, supra note 5. ↩

20. 20.

    End Ecocide, Ecocide Amendments Proposal (Sep. 2016), available online. ↩

21. 21.

    Tara Smith, Creating a Framework for the Prosecution of Environmental Crimes in International Criminal Law, in The Ashgate Research Companion to International Criminal Law: Critical Perspectives (William A. Schabas, Yvonne McDermott & Niamh Hayes eds., 2013), paywall, doi. ↩

22. 22.

    Christina Voigt, «Ecocide» as an International Crime: Personal Reflections on Options and Choices, EJIL Talk (Jul. 3, 2021), available online. ↩

23. 23.

    IEP Definition, supra note 2, at II(c)(1). ↩

24. 24.

    Liana Georgieva Minkova, The Fifth International Crime: Reflections on the Definition of “Ecocide”, 25 J. Genocide Research 62 (2023), available online, doi. ↩

25. 25.

    Anthony Burke & Danielle Celermajer, Human Progress Is No Excuse to Destroy Nature. A Push to Make ‘Ecocide’ a Global Crime Must Recognise This Fundamental Truth, The Conversation (Aug. 31, 2021), available online. ↩

26. 26.

    Voigt, supra note 22. ↩

27. 27.

    Darryl Robinson, Ecocide: A Call to Discuss Some Hard Conundrums, EJIL Talk (Nov. 28, 2024), available online. ↩

28. 28.

    Rachel Killean & Damien Short, Scoping a Domestic Legal Framework for Ecocide in Scotland, ERCS (Mar. 2024), available online. ↩

29. 29.

    Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 1125 U.N.T.S. 3 (Jun. 8, 1977) [hereinafter Additional Protocol I], available online, archived. ↩

30. 30.

    Id. Art. 55. ↩

31. 31.

    Mark Allan Gray, The International Crime of Ecocide, 26 Cal. W. Int’l L.J. 215 (1996), available online. ↩

32. 32.

    Susana SáCouto & Katherine Cleary, Modes of Liability and the Mental Element: Analyzing the Early Jurisprudence of the International Criminal Court, Am. U. Wash. C. L., WCRO (Sep. 2010), available online. ↩

33. 33.

    Lawrence & Heller, supra note 7. ↩

34. 34.

    Matthew Gillett, Ecocide, Environmental Harm and Framework Integration at the International Criminal Court, 29 Int’l J. of Hum. Rts. 1009 (2025), available online, doi. ↩

35. 35.

    Rome Statute, supra note 1, at Art. 28. ↩

36. 36.

    Darryl Robinson, International Environmental Crimes and Ecocide, in Research Handbook on Environmental Crimes and Criminal Enforcement (Susan Smith & Iina Sahramäki eds., 2024), available online. ↩

37. 37.

    Rome Statute, supra note 1, at Art. 25. ↩

38. 38.

    Marco Colacurci, The Draft Convention Ecocide and the Role for Corporate Remediation. Some Insights from the International Monsanto Tribunal and a Recent Research Proposal, 27 Int’l Crim. L. Rev. 1 (Jan. 2021), paywall, doi. ↩

39. 39.

    David Whyte, Ecocide: Kill the Corporation Before It Kills Us (MUP, Sep. 2020), paywall. ↩

40. 40.

    Joanna Kyriakakis, Ecocide, Evil and the Corporation, in Evil Corporations (Penny Crofts ed., 2024), paywall, doi. ↩

41. 41.

    Rachel Killean, Reparations in the Aftermath of Ecocide, Promise Inst. of Hum. Rts. Symposia (2023), available online. ↩

42. 42.

    Killean & Newton, supra note 11. ↩

43. Suggested Citation for this Comment:

    Rachel Killean, Should Ecocide Be Added to the Rome Statute? Critiquing the Expert Panel’s Proposal, ICC Forum (May 20, 2026), available at https://iccforum.com/ecocide#Killean.

    Suggested Citation for this Issue Generally:

    Should the Crime of “Ecocide” Be Added to The Rome Statute?, ICC Forum (May 20, 2026), available at https://iccforum.com/ecocide.

Argument Continued

Even looking just to international criminal law, recent months have seen a whirlwind of activity to counter environmental harm. Prominent examples include a new policy from the ICC Office of the Prosecutor for how it intends to investigate and prosecute crimes “that are committed by means of or that result in environmental damage,” while simultaneously setting out its plan to “support national efforts to prosecute illegal conduct that has an environmental dimension.”7 At the United Nations, fifty-nine States have now vocalized their openness to adding an environmental crime to the list of crimes against humanity in a forthcoming convention.8 These and similar initiatives reflect intensifying efforts within this area of law to develop and apply its legal framework to questions of environmental damage and destruction. They also complement, rather than compete with, the proposal to add ecocide to the Rome Statute.9

Turning to ecocide, it is starting to garner sustained focus in national and regional jurisdictions,10 with developments so fast moving that it seems futile to summarize them here. We may soon reach the point where consideration can be given to whether domestic criminalization could prompt a “bottom-up approach to international lawmaking,” as has been described in relation to the crystallization of some environmental human rights.11 In the meantime, States Parties to the Rome Statute will continue considering the proposed addition of ecocide as the fifth international crime before the ICC. Since Vanuatu submitted its proposal on September 9, 2024,12 there has been ongoing debate about the merits or feasibility of incorporating ecocide in the Rome Statute, as well as the appropriate or desirable contours of this new crime. These topics already benefit from a rich literature and dedicated advocacy, and are not explored here anew.

This comment focuses on the advisability of adding ecocide to the ICC by suggesting that States Parties should incorporate a fifth international crime only if they will also confer the necessary support for the Court to effectively investigate, prosecute, and adjudicate crimes falling within an expanded mandate. The ICC is already experiencing obstacles as it seeks to pursue allegations of genocide, crimes against humanity, and war crimes (and potentially aggression). Adding a fifth international crime may serve an expressivist function, and thereby have possible deterrent value. That is not inconsequential, but it does not change the fact that the ICC was established for a different purpose, to serve as a court of last resort in order to end impunity for perpetrators of the most serious international crimes.13 Inherent in this purpose is that it must be able to investigate, prosecute, and adjudicate alleged crimes falling within its jurisdiction, and that State cooperation and support is a prerequisite for the fulfilment of these functions.

I. The ICC Is Already Under Strain

In 2024, President Tomoko Akane alerted the world to the potential crippling of the ICC, warning that it was facing down threats to “the very existence of the Court.”14 The “coercive measures, threats, pressure” and “existential threat of sanctions” to which she referred,15 have only increased in number and severity since then. The United States has now sanctioned eight of the eighteen Judges, along with the Prosecutor and both Deputy Prosecutors, developments which “risk undermining ongoing investigations and impeding global efforts to ensure accountability for the gravest crimes of concern to the international community as a whole.”16 In the Russian Federation, the Moscow City Court has convicted eight Judges and the Prosecutor in absentia, imposing prison sentences up to fifteen years in length.17 Thus far, such measures have been directed at individual Court officials, but the ICC itself has also been “threatened with draconian economic sanctions […] as if it was a terrorist organisation.”18 Notwithstanding the existential risk these measures imply or impose, it should be noted that they have been taken by States that are not party to the Rome Statute, and that there is some possibility that the sanctions, convictions, and other opposition will eventually be rescinded without causing lasting repercussions to the Court’s operations.

Conversely, the ICC continues to receive essential support from its 125 States Parties. Yet it cannot be sure of their full cooperation as the Court seeks to discharge its unique mandate to investigate, prosecute, and adjudicate alleged crimes that are already within its jurisdiction. It is this reality, rather than externally imposed sanctions, that counsels against States Parties adding a fifth international crime to the Rome Statute unless they are also prepared to commit the necessary backing for what an expanded mandate will entail. As President Akane has emphasized, “without States’ unconditional support and cooperation, the Court cannot operate” and “[w]ithout adequate resources, the Court will not be able to conduct its proceedings at pre-trial, trial and appeals levels.”19

“Cooperation is one of the most fundamental elements of the Rome Statute system,” a truism observed by then-President Piotr Hofmański in 2023.20 It consists of States Parties performing two fundamental tasks: (i) fulfilling their obligations to support the ICC’s investigations, prosecutions, and adjudication of alleged crimes; and (ii) providing the necessary “political and diplomatic support for the Court” to succeed.21 Without these dual pillars, the ICC is invariably hobbled in its ability to end impunity for the core international crimes under its jurisdiction, as the Court has seen in recent years.

One key obstacle for the ICC continues to be securing the presence of accused persons so that their cases can be prosecuted, defended, and adjudicated. Arrest warrants or surrender requests remain outstanding for thirty-three individuals,22 and perhaps more, as this pertains to those that are “publicly known.”23 This figure has increased steadily over the past years,24 with unexecuted arrest warrants now extending to eleven different situations.25 Outstanding arrest warrants may be a familiar occurrence across international criminal law, but the growing scope of this challenge reflects that, even in relation to the international crimes under its jurisdiction since the Rome Statute entered into force in 2002, the ICC is not receiving the cooperation required to discharge its mandate effectively. Not only have a trio of States Parties recently declined to execute ICC arrest warrants for persons who are sitting Heads of State not party to the Rome Statute,26 but the Court has also seen Italy arrest an alleged prison director wanted by the Court,27 only to return him to his country instead of transferring him to the ICC.28

The news is not all bad. Germany and the Philippines each executed an arrest warrant and transferred the accused person to the Court last year.29 The ICC has expanded its membership to 125 States Parties, the highest number in its history.30 Although Hungary has submitted notice of its forthcoming withdrawal,31 this is so far an isolated instance, and past experience suggests that this may ultimately be offset by new States Parties.32 Nevertheless, the fact remains that the ICC is getting accustomed to seeing more countries decline to execute its arrest warrants and transfer accused persons to its jurisdiction, depriving the Court of its core functions of prosecuting and adjudicating charges in cases before it.

Partially as a result, the Court does not have an abundance of trials and appeals at the moment. Nevertheless, its expected workload, already rather substantial, continues to grow without corresponding budgetary allocations from its States Parties. As of September 2025, the ICC was seized of thirty-eight cases, involving forty-four accused persons, that are in the public domain.33 This is not a perfect indicator of the Court’s workload—there were only a handful of persons in custody,34 limiting the ability to prosecute and adjudicate cases for alleged crimes under its jurisdiction—but it nevertheless reflects activity undertaken to evaluate information, collect evidence, interview witnesses, investigate incriminating and exonerating circumstances, assess possible crimes and grounds of criminal responsibility, prepare applications for arrest warrants, decide on those applications, and take a host of other preliminary steps.35

These thirty-eight cases, involving forty-four accused, are drawn from the sixteen situations currently pending before the Court, which offer limited room for synergy given their divergent locations, backgrounds, languages, and alleged criminality. The scale of work required to adequately investigate, and then potentially prosecute and adjudicate, the crimes already in the Rome Statute across these sixteen situations is immense, spanning Afghanistan, Bangladesh/Myanmar, Burundi, Central African Republic, Côte d’Ivoire, Democratic Republic of the Congo, Georgia, Kenya, Libya, Mali, Palestine, Philippines, Sudan, Uganda, Ukraine, and Venezuela.36 On top of that, as of September 2025, the Office of the Prosecutor had been conducting a second preliminary examination in relation to both Democratic Republic of the Congo and Venezuela, and had opened a preliminary investigation into Belarus/Lithuania.37

While the number of situations, cases, and accused persons before the Court has increased significantly over time, the budgetary allocation from its States Parties shows a more gradual rise, as seen in Figure 1.

This financial backing may also be starting to level off. In allocating funds for 2026, the Assembly of States Parties specifically asked that the Court’s forthcoming budget proposal be “sustainable” and “based on transparent and strict financial assessments and needs-analysis,” with no proposed increases unless they are “demonstrably necessary,” and then only if “all possible steps have been taken to finance such increases through savings and efficiencies.”38 Even inflation is not to be taken into account in preparing the upcoming budget, except in limited circumstances.39

This is not to suggest that States Parties should necessarily allocate more funding to the ICC to pursue the cases already before it. Rather, it reflects the apparent hesitancy of States Parties to provide the Court with funding concomitant with its increased caseload. Expanding the Court’s mandate with a fifth international crime should be expected to augment the scope of its work still further. Before States Parties consider such an amendment, it would seem appropriate to contemplate their ability to provide the necessary funding and other support that will allow the ICC to exercise its jurisdiction in respect of this additional crime as well.

II. Ecocide

The observations above—that the ICC is under strain, not only from external sources but also from a lack of consistent cooperation and foundational support among its States Parties—could apply for any proposal to add a fifth international crime, but they are perhaps of special relevance for the proposed crime of ecocide. Because ecocide would represent an innovation for the ICC, it can be expected to entail an even greater need for State engagement. Put differently, if the ICC has thirty-three outstanding arrest warrants for the long-established international violations of genocide, crimes against humanity, and war crimes, and if States Parties are still declining to execute these arrest warrants at times, greater hesitation to cooperate with respect to the newer crime of ecocide would not be surprising.

This is exacerbated by a number of features inherent to the proposed crime of ecocide. Among them is that it would criminalize certain forms of environmental damage, regardless of whether this also caused harm to human beings,40 in line with the desire to incorporate an ecocentric crime to complement the anthropocentric ones over which the ICC already has jurisdiction. Additionally, the proposed definition would allow for ecocide to be perpetrated where there is no damage to the environment, so long as there was “a substantial likelihood” of qualifying damage as a result of unlawful or wanton acts committed with knowledge of the risk.41 Another novelty is that the actual or potential harm need not take place on or near earth, but could extend into the atmosphere or beyond, into outer space.42

These provisions are poised to strike some States Parties as unduly broad, while others are bound to sense a challenge to their perceived national interests. Even should there be some adjustments to the proposed definition, ecocide would be of a different quality to the other crimes in the Rome Statute. While this is precisely the point of seeking to have it added, it should also warrant concern that in addition to not accepting the amendment—as is their prerogative under the Rome Statute43—States Parties might be inclined to reject cooperation requests, refuse to execute arrest warrants, or withhold financial or other support insofar as it pertains to ecocide. Because “[c]ooperation is one of the most fundamental elements of the Rome Statute system,”44 it will be important for States Parties to address and assuage this concern as part of the amendment process.

Adding ecocide to the Rome Statute would “serve an expressive function, conveying a powerful message about the moral and legal limits on behaviour and the gravity of attacks on nature.”45 But it could also amount to no more than “a purely symbolic success,”46 which would be problematic for the ICC. Although there is expressive value in ensuring that the Rome Statute fully enunciates “the most serious crimes of concern to the international community as a whole,”47 this is not among the purposes for which the ICC exists. Rather, it was established as a court of last resort in order to “put an end to impunity for the perpetrators” of such crimes, thereby contributing to their prevention.48 Ensuring that the Court has the means necessary to discharge its principal function should be a focus of States Parties when they consider whether to add ecocide to the Rome Statute.

III. Conclusion

Environmental harm poses an acute threat to human civilization and natural ecosystems around the globe, and there can be little doubt that sustained effort and innovative approaches are needed to forge a durable solution.49 These are already being pursued at the ICC,50 yet more remains to be done. As States Parties consider whether to amend the Rome Statute to incorporate ecocide as its fifth international crime, account should be taken of the realities facing the Court. The ICC is in turmoil, and while current existential threats may pass, its effectiveness has long been hampered by inconsistent State support for its present mandate to end impunity for genocide, crimes against humanity, war crimes, and aggression. Expanding this mandate should be contemplated by States Parties only if they are willing to bolster their collective cooperation with, and backing for, the Court. If the ICC is to be entrusted with the responsibility for investigating, prosecuting, and adjudicating ecocide as a court of last resort, it must be empowered to do so in an effective, timely, and just manner.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], available online. ↩

2. 2.

   G.A. Res. 77/276, UN Doc. A/RES/77/276, Request for an advisory opinion of the International Court of Justice on the obligations of States in respect of climate change, Preamble ¶ 1 (Mar. 29, 2023), available online

   (adopted by consensus, and with 132 co-sponsors). ↩

3. 3.

   Obligations of States in Respect of Climate Change, Advisory Opinion, I.C.J. General List No. 187, ¶ 73 (Jul. 23, 2025) [hereinafter Obligations of States], available online

   (decided unanimously). ↩

4. 4.

   Id. ¶ 456. ↩

5. 5.

   See, e.g., G.A. Res. 77/276, supra note 2, Preamble ¶ 9; Obligations of States, supra note 3, ¶ 72. ↩

6. 6.

   See Obligations of States, supra note 3, ¶ 456

   (“International law […] has an important but ultimately limited role in resolving this problem. A complete solution to this daunting, and self-inflicted, problem requires the contribution of all fields of human knowledge, whether law, science, economics or any other.”). ↩

7. 7.

   Office of the Prosecutor, ICC, Policy on Addressing Environmental Damage Through the Rome Statute 1 (Dec. 2025) [hereinafter Addressing Environmental Damage], available online. ↩

8. 8.

   Christopher Lentz, Towards an Effective and Universal Convention on Crimes Against Humanity, ILA Webinar, 42:00–42:50 (Mar. 23, 2026), video. ↩

9. 9.

   See e.g., UN Sixth Committee, Statement by Vanuatu, 37:00, 38:53–40:41 (Oct. 14, 2025), video. ↩

10. 10.

    See, e.g., Breaking News, Stop Ecocide International, available online (last visited Apr. 1, 2026). ↩

11. 11.

    Danuta Palarczyk, Ecocide Before the International Criminal Court: Simplicity Is Better than an Elaborate Embellishment, 34 Crim. L. Forum 147, 175–76 (Feb. 20, 2023), available online; see also Rachel Killean & Damien Short, A Critical Defence of the Crime of Ecocide, Envtl. Pol. 16 (Apr. 24, 2025), available online, doi.

    (“In addition to creating new avenues towards accountability at a domestic level, these developments may contribute to the momentum needed to see ecocide introduced as an international crime.”). ↩

12. 12.

    See Assembly of States Parties, Proposal Submitted by Vanuatu to Amend the Rome Statute, ICC-ASP/23/26, at Annex II (Dec. 1, 2024) [hereinafter Vanuatu Proposal], available online. ↩

13. 13.

    Rome Statute, supra note 1, at Preamble ¶ 5, Art. 1. ↩

14. 14.

    Tomoko Akane, President of the ICC, Opening Remarks, 23rd Session of the Assembly of States Parties 5 (Dec. 2, 2024), available online. ↩

15. 15.

    Id. at 2, 4. ↩

16. 16.

    Press Release, ASP, Presidency of the Assembly of States Parties Regrets Additional U.S. Sanctions Targeting ICC Elected Officials (Dec. 18, 2025), available online; see also Press Release, ASP, Presidency of the Assembly of States Parties Expresses Deep Concern and Objects to Additional U.S. Sanctions Targeting ICC Elected Officials (Aug. 21, 2025), available online; Press Release, ASP, Presidency of the Assembly of States Parties Expresses Deep Concern and Rejects U.S. Measures Targeting ICC Officials as a Threat to International Justice (Jun. 6, 2025), available online; Press Release, ASP, Statement by the Bureau of the Assembly of States Parties in Support of the Independence and Impartiality of the International Criminal Court (Jan. 23, 2025), available online. ↩

17. 17.

    Press Release, OHCHR, Russia Must End Reprisals and Intimidation of ICC Prosecutor and Judges: UN Special Rapporteurs (Feb. 4, 2026), available online; see also Press Release, ASP, The Presidency of the Assembly of States Parties Rejects the Criminal Proceedings Initiated Against High Officials of the Court (Oct. 10, 2023), available online. ↩

18. 18.

    Akane, supra note 14, at 2–3; see also Anthony Deutsch, Humeyra Pamuk & Stephanie van den Berg, Exclusive: US Could Hit Entire International Criminal Court With Sanctions Soon, Reuters, Sep. 23, 2025, available online. ↩

19. 19.

    Akane, supra note 14, at 4–5. ↩

20. 20.

    Piotr Hofmański, President of the ICC, Remarks at Plenary Session on Cooperation, 22nd Session of the Assembly of States Parties to the Rome Statute 2 (Dec. 8, 2023), available online. ↩

21. 21.

    Id. ↩

22. 22.

    Assembly of States Parties, Resolution on Cooperation, ICC-ASP/24/Res.5, ¶ 2 (Dec. 5, 2025), available online. ↩

23. 23.

    Tomoko Akane, President of the ICC, Presentation of the Court’s Annual Report to the United Nations 4 (Nov. 11, 2025), available online. ↩

24. 24.

    Assembly of States Parties, Resolution on Cooperation, ICC-ASP/23/Res.5, ¶ 2 (Dec. 6, 2024), available online

    (outstanding warrants with respect to thirty individuals);

    Assembly of States Parties, Resolution on Cooperation, ICC-ASP/22/Res.5, ¶ 2 (Dec. 14, 2023), available online

    (sixteen individuals);

    Assembly of States Parties, Cooperation, ICC-ASP/21/Res.3, ¶ 2 (Dec. 9, 2022), available online

    (fourteen individuals);

    Assembly of States Parties, Resolution on Cooperation, ICC-ASP/20/Res.2, ¶ 2 (Dec. 9, 2021), available online

    (twelve individuals). ↩

25. 25.

    G.A., Report of the International Criminal Court, UN Doc. A/80/342, 2–3 (Aug. 18, 2025), available online

    (unexecuted arrest warrants in Afghanistan, Central African Republic, Democratic Republic of the Congo, Georgia, Kenya, Libya, Mali, Palestine, Sudan, Uganda, and Ukraine). ↩

26. 26.

    Situation in Ukraine, ICC-01/22-135, Decision inviting Tajikistan to provide any further submissions on its failure to arrest and surrender Vladimir Vladimirovich Putin, ¶ 8 (ICC PTC II, Nov. 5, 2025), available online; Situation in the State of Palestine, ICC-01/18-462, Finding under article 87(7) of the Statute on Hungary’s non-compliance with the Court’s request to cooperate in the provisional arrest of Benjamin Netanyahu and referral to the Assembly of States Parties, ¶¶ 4–7 (ICC PTC I, Jul. 24, 2025), available online; Situation in Ukraine, ICC-01/22-90, Finding under article 87(7) of the Rome Statute on the non-compliance by Mongolia with the request by the Court to cooperate in the arrest and surrender of Vladimir Vladimirovich Putin and referral to the Assembly of States Parties, ¶¶ 8–9 (ICC PTC II, Oct. 24, 2024), available online. ↩

27. 27.

    Press Release, ICC, Situation in Libya: ICC Arrest Warrant Against Osama Elmasry Njeem for Alleged Crimes Against Humanity and War Crimes (Jan. 22, 2025), available online. ↩

28. 28.

    Situation in Libya, ICC-01/11-209, Decision on Italy’s non-compliance with a request for cooperation, ¶¶ 5–8, 62 (ICC PTC I, Oct. 17, 2025), available online. ↩

29. 29.

    Press Release, ICC, Situation in Libya: Khaled Mohamed Ali El Hishri in ICC Custody (Dec. 1, 2025), available online; Press Release, ICC, Situation in the Philippines: Rodrigo Roa Duterte in ICC Custody (Mar. 12, 2025), available online. ↩

30. 30.

    Akane, supra note 23, at 4. ↩

31. 31.

    U.N. Secretary-General, Depositary Notification, C.N.225.2025.TREATIES-XVIII.10, Rome Statute of the International Criminal Court, Hungary: Withdrawal (Jun. 3, 2025), available online

    (indicating that the withdrawal would take effect on June 2, 2026). ↩

32. 32.

    Christopher Lentz, State Withdrawals of Jurisdiction from an International Adjudicative Body, in The Crisis of Multilateral Legal Order: Causes, Dynamics and Implications 117–19, 122–23 (Lukasz Gruszczynski, Marcin J. Menkes, Veronika Bílková & Paolo Davide Farah eds., 2022), paywall, doi

    (noting that after the withdrawal of Burundi in 2017 and the Philippines in 2019, the number of States Parties to the Rome Statute stabilized at 123, and that withdrawals in international adjudicative bodies have been followed by a greater number of States conferring jurisdiction to those bodies over time). ↩

33. 33.

    Assembly of States Parties, Report on the Activities of the International Criminal Court, ICC-ASP/24/11, ¶¶ 1–2 (Oct. 30, 2025) [hereinafter ASP 2025 Report], available online

    (covering the period from September 16, 2024 through September 15, 2025). ↩

34. 34.

    Id. at Annex

    (five to six persons in custody during the reporting period). ↩

35. 35.

    See, e.g., Rome Statute, supra note 1, at Arts. 53–58. ↩

36. 36.

    ASP 2025 Report, supra note 33, ¶ 2. ↩

37. 37.

    Id. ¶¶ 2, 124–26. ↩

38. 38.

    Assembly of States Parties, Resolution of the Assembly of States Parties on the Proposed Programme Budget for 2026 and Related Policy and Administrative Matters, ICC-ASP/24/Res.4, § D(1) (Dec. 5, 2025), available online. ↩

39. 39.

    Id. § D(10)

    (changes in the salary scales set within the United Nations Common System, or where a contract contains a clear provision indexing price to inflation and then “following negotiations with vendors”). ↩

40. 40.

    Vanuatu Proposal, supra note 12, at Art. 8 ter (1)

    (“For the purpose of this Statute, ‘ecocide’ means 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.”). ↩

41. 41.

    Id. ↩

42. 42.

    Id. Art. 8 ter (2)(e)

    (“ ‘Environment’ means the earth, its biosphere, cryosphere, lithosphere, hydrosphere and atmosphere, as well as outer space.”). ↩

43. 43.

    Rome Statute, supra note 1, at Art. 121(5). ↩

44. 44.

    Hofmański, supra note 20, at 2. ↩

45. 45.

    Matthew Gillett, “Human, all too human”: The Anthropocentricisation of Ecocide, Int’l J. of Hum. Rts. 1, 4 (Sep. 18, 2025), available online, doi. ↩

46. 46.

    Palarczyk, supra note 11, at 206. ↩

47. 47.

    Rome Statute, supra note 1, at Preamble ¶ 4, Art. 5. ↩

48. 48.

    Id. at Preamble ¶ 5. ↩

49. 49.

    See, e.g., Obligations of States, supra note 3, ¶¶ 73, 456. ↩

50. 50.

    See, e.g., Addressing Environmental Damage, supra note 7. ↩

51. Suggested Citation for this Comment:

    Christopher Lentz, State Support for Investigation, Prosecution, and Adjudication: A Prerequisite for Adding a Fifth International Crime to the Rome Statute, ICC Forum (May 20, 2026), available at https://iccforum.com/ecocide#Lentz.

    Suggested Citation for this Issue Generally:

    Should the Crime of “Ecocide” Be Added to The Rome Statute?, ICC Forum (May 20, 2026), available at https://iccforum.com/ecocide.

Argument Continued

II. The Proposal of Ecocide

The modern ecocide proposal is most closely associated with the 2021 Independent Expert Panel for the Legal Definition of Ecocide (IEP), convened by the Stop Ecocide Foundation to draft a text suitable for possible incorporation into the Rome Statute. The IEP proposed defining ecocide as unlawful or wanton conduct undertaken with awareness of a substantial likelihood of severe and either widespread or long-term environmental damage.5 This formulation establishes a deliberately high threshold of criminal liability by restricting the offense to damage of exceptional gravity and scale. The requirement of awareness introduces a demanding mental element, distinguishing ecocide from ordinary environmental misconduct, while the unlawfulness or wantonness criterion confines criminalization to conduct warranting penal condemnation.6

The legal rationale for the proposal is equally significant. The IEP deliberately drew on the structure of existing international criminal law, especially Article 8(2)(b)(iv) of the Rome Statute, which criminalizes severe environmental damage in armed conflict. It rejected the premise that comparable devastation is only of international criminal concern when committed during war.7 In this respect, the proposal is simultaneously conservative and innovative: conservative in that it adopts familiar structural elements from the Rome Statute’s existing framework of core crimes, and innovative in that it extends those elements into peacetime contexts, where environmental harm is often cumulative, diffuse, and mediated through complex organizational and industrial processes rather than direct acts of violence.

For international criminal law and environmental protection alike, the relevance of the proposal lies in the accountability gap it seeks to close. Existing treaty regimes already impose duties of prevention, mitigation, adaptation, cooperation, and environmental protection. However, those regimes rarely generate individualized penal responsibility for the decision-makers who persist in authorizing the gravest harms. Ecocide’s attraction is therefore not only punitive. As Higgins, Short, and South argued well before the IEP’s work, the crime aspires to perform a declaratory function by marking severe ecological destruction as conduct that attacks the foundations of collective existence.8 Moreover, the IEP’s definitions of “widespread,” “long-term,” and “environment” are especially significant in a climate context because they are sufficiently broad to encompass systemic harms that extend across ecosystems, climatic systems, and timescales beyond those typically addressed by ordinary regulation.

III. The ICJ Advisory Opinion in Context

The ICJ advisory proceedings were initiated by United Nations General Assembly Resolution 77/276, adopted on March 29, 2023 and transmitted to the Court shortly thereafter.9 The initiative emerged from Pacific Island youth advocacy, was taken up diplomatically by Vanuatu and allied states, and was framed as a juridical response to the widening gap between the existential stakes of climate change and the incrementalism of climate negotiations.10 By the time the draft resolution reached the Assembly floor, it had accumulated 132 co-sponsors and was ultimately adopted by consensus, an outcome that underscored both the political resonance and the legal ambition of the project.11

The legal and political background to the request helps explain why the opinion has direct relevance to ecocide. Climate-vulnerable states and civil-society advocates sought authoritative clarification of existing obligations, especially concerning loss and damage, historical responsibility, intergenerational harm, and the inadequacy of current state responses to climate change.12 In doing so, they invited the Court to articulate whether large-scale environmental destruction resulting from climate change engages fundamental duties owed to the international community as a whole.

This legal strategy has direct implications for the evolving concept of ecocide. Ecocide, as a proposed international crime, centers on the idea that severe, widespread, or long-term environmental destruction should be treated as an offense against humanity or against the international community as a whole. Although the Court was not asked to determine criminal liability, the questions presented implicitly touched the same moral and legal terrain. The opinion helps establish the normative foundation that ecocide advocates have long sought by recognizing that environmental devastation threatens shared global interests, including human rights, ecological stability, and the survival of vulnerable peoples.

A further reason the ICJ opinion matters for ecocide lies in its approach. The Court did not purport to legislate anew. It identified obligations by reading across a broad corpus of applicable international law, including climate treaties, other environmental treaties, human rights law, the law of the sea, and customary principles of prevention and due diligence.13 For criminalization debates, that methodological choice is important because international criminal law seldom emerges from a normative vacuum. It is more often built atop pre-existing primary rules whose content, gravity, and universal significance have been clarified elsewhere.14 From this perspective, the ICJ opinion performs a clarificatory function in relation to climate-related environmental harm by synthesizing dispersed obligations against which the most egregious forms of environmental devastation can be measured and, ultimately, criminalized. This consolidation helps to articulate the seriousness of large-scale environmental destruction within an established legal vocabulary. In this sense, ecocide need not be conceptualized as an entirely novel legal category but may instead be understood as capturing the most extreme conduct that is already widely prohibited under international law.

IV. How the ICJ Advisory Opinion Supports Criminalizing Ecocide

A. Duty to Prevent Severe Environmental Harm

The ICJ’s most immediate contribution to the ecocide debate lies in its elaboration of the duty to prevent serious environmental harm. The Court held that the customary duty to prevent significant harm to the environment applies to the climate system and other parts of the environment and that this duty protects present and future generations alike.15 This reasoning also helps clarify how criminal law may play a preventive rather than purely reactive role in environmental protection. While international criminal law is traditionally understood as responding to completed harm, the logic underpinning ecocide proposals is increasingly anticipatory. It seeks to deter conduct that carries a high risk of severe, widespread, or long-term environmental damage before such damage fully materializes. In that sense, the preventive function already recognized in general international law can be understood as aligned with the rationale of criminalization.

The Court’s elaboration of the duty to prevent serious environmental harm supports the criminalization of ecocide. By definition, ecocide involves harm at or above the level that the ICJ described as legally intolerable. The IEP’s proposed crime requires severe and either widespread or long-term environmental damage. The ICJ’s opinion, by contrast, speaks of preventing “significant” harm as a matter of primary obligation.16 The relationship between these thresholds is clear: conduct grave enough to satisfy the ecocide proposal will almost inevitably constitute an aggravated instance of the very harm states are already bound to prevent. Criminalization would not create a new moral universe. It would individualize and intensify accountability at a level the Court has already recognized.17 The opinion therefore helps to answer a recurrent legality objection—that ecocide lacks a settled predicate wrong—by showing that predicate wrong to be far less indeterminate.

The climate-specific significance becomes clearer when ecocide is understood in its deeper conceptual sense as the destruction of humanity’s ecological home. The term derives from the Greek oikos, referring to the shared environment in which human and non-human life is embedded. Leading scholarship has long argued that the concept is apt for forms of environmental destruction that destabilize the biophysical conditions of life at scale.18 Conduct that significantly contributes to climate change can therefore fall within the conceptual meaning of ecocide when decision-makers engage in unlawful or wanton behavior despite robust scientific knowledge that it creates a substantial likelihood of severe and widespread or long-term damage. The IEP commentary’s expansive treatment of “environment,” “widespread,” and “long-term” reinforces this conclusion, since climatic systems, global ecosystems, and irreversible harms plainly fit the proposal’s architecture.19 Not every emission-intensive act amounts to ecocide. But the ICJ’s insistence on cumulative responsibility, broad material scope, and the legal relevance of fossil-fuel licensing and subsidization makes it far harder to deny that climate-destructive conduct can, in principle, satisfy ecocide’s conceptual core.20

Equally important, the Court rejected the argument that the cumulative and diffuse character of climate-changing conduct defeats prevention duties. It stated instead that the multifaceted nature of climate change does not preclude application of the duty, because states contribute in markedly different ways through activities within their jurisdiction or control.21 This point bears directly on a common objection to ecocide: that climate-related environmental destruction is too collective or distributed to be normatively or legally attributable. The fact that climate change results from a complex interaction of multiple factors does not remove states’ obligations of due diligence to prevent significant environmental harm.22 If preventive duties apply despite fragmented causal contributions, then a fortiori criminal norms can be designed to target individualized contributions to collectively generated environmental risk. On this view, ecocide would not require a complete collapse of causation into a single identifiable perpetrator, but rather a legal framework capable of identifying substantial contributions to a foreseeable and serious environmental harm.

The ICJ gave the prevention duty operational content through due diligence. It reasoned that states must establish national systems that include legislation, administrative procedures, and enforcement mechanisms. They must regulate both public and private operators, pursue deep, rapid, and sustained greenhouse gas reductions, and assess risk in light of the best available science, including through precautionary reasoning and appropriate environmental impact assessment.23 If states are under a continuing obligation to exercise due diligence to avoid foreseeable and significant environmental damage, then criminal law can be seen as one mechanism through which that standard is operationalized. Criminalization could strengthen the preventive duty by attaching individualized responsibility and stigma to conduct that foreseeably contributes to prohibited harm. In this way, criminal law functions ex ante by shaping behavior through the threat of liability, rather than merely ex post through punishment.24

The opinion is especially notable for refusing to detach climate harm from ordinary state policy. The Court made clear that the relevant conduct extends to the full range of human activities contributing to climate change, adding that state failures may include fossil-fuel production and consumption, the granting of exploration licenses, and the provision of fossil-fuel subsidies.25 In other words, the Court did not confine climate obligations to vague aspirations about future decarbonization. This reasoning is significant for the ecocide debate because many ecocide-type acts function as direct contributors to atmospheric carbon accumulation. Activities such as large-scale deforestation, ecosystem destruction, and environmentally reckless extraction practices not only devastate biodiversity but also release substantial greenhouse gas emissions.

B. Duty to Protect Human Rights at Risk of Violation Due to Environmental Destruction

The second major contribution of the ICJ opinion is its refusal to treat environmental harm as analytically separable from human rights harm. The Court stated that climate change may impair the enjoyment of human rights, that a clean, healthy, and sustainable environment is a precondition for the enjoyment of many rights, and that the effective enjoyment of human rights cannot be ensured without protecting the climate system and other parts of the environment.26 From that premise, the Court drew a further conclusion of immediate relevance to ecocide: states must take mitigation and adaptation measures, adopt standards and legislation, and regulate the activities of private actors to guarantee the effective enjoyment of human rights in a climate-altered world.27

Once this step is taken, the criminal law argument becomes more compelling. A substantial body of scholarship shows that human rights institutions increasingly treat criminal law as one of the tools states can use to protect fundamental rights, especially where serious violence or gross abuse would otherwise go unanswered.28 That literature does not suggest that every rights violation must be criminalized. It does, however, explain why criminalization can become appropriate where the protected interests are foundational, the harm is grave, and non-penal enforcement alone proves structurally inadequate.29 If severe environmental destruction foreseeably undermines life, health, home, food security, and basic conditions of dignity, then ecocide can be defended not as a purely environmental crime but as a human rights-protective offense directed at an especially destructive class of conduct.30

At the same time, the ICJ opinion supports a disciplined, not maximalist, version of this argument. Because the Court framed the underlying duties in terms of prevention, regulation, and protection rather than blanket prohibition of all climate-relevant activity, ecocide is best conceived as an accountability mechanism for the gravest harms, not as a substitute for climate policy in general.31 This is consistent with environmental criminal law scholarship, which emphasizes that penal enforcement works best when it sits atop a broader regulatory structure and is reserved for serious misconduct characterized by culpability, avoidance of legal obligations, or indifference to grave risks.32 Properly understood, then, the ICJ’s opinion does not collapse climate governance into criminal law. Instead, it offers a compelling normative basis for using criminal law as a means of addressing the gravest climate-destructive behavior that fits within the current conceptualization of ecocide.

C. Duty to Fulfill Obligations Arising from Multilateral Environmental Agreements

The Court recognized that addressing climate change requires states to fulfill obligations under multilateral environmental agreements (MEAs) in good faith.33 MEAs such as the Paris Agreement, biodiversity conventions, and pollution treaties create a dense web of commitments aimed at collective environmental protection. Courts and advisory bodies have increasingly treated these obligations as binding and interconnected rather than purely aspirational. However, MEAs suffer from a structural enforcement weakness because compliance mechanisms are often soft, relying on reporting, facilitation, or diplomatic pressure rather than coercive sanctions.34 The codification of ecocide would help to bridge this enforcement deficit by creating a hard-law enforcement layer that complements treaty obligations. Furthermore, ecocide could offer a pathway through which states can fulfill their MEA obligations by ensuring that the most severe breaches, particularly those resulting in catastrophic or irreversible damage, can trigger individual accountability. In this way, it would strengthen the practical effectiveness of MEA regimes by adding a deterrent mechanism grounded in criminal responsibility.

V. The Inter-American Court Advisory Opinion in Context

The Inter-American Court’s advisory opinion emerged from a parallel but distinct procedural route. On January 9, 2023, Chile and Colombia submitted a request for an advisory opinion on climate emergency and human rights to the Inter-American Court under Article 64(1) of the American Convention on Human Rights.35 The opinion was thus issued within the inter-American human rights system rather than the universal system. The Court received 260 observations, the highest number in its history, and held public hearings in Barbados in April 2024.36 The scale of participation reflected a widespread perception among states, social movements, academics, and affected communities that the climate emergency had become a foundational human rights question rather than a peripheral environmental issue.37

The central legal questions posed to the Court were broad and were reformulated by the Court in systematic terms. As the Court explained, Chile and Colombia sought interpretation of the general obligations of respect, guarantee, and normative adaptation under the American Convention and, in part, the Protocol of San Salvador, with respect to substantive rights, procedural rights, and the rights of persons in situations of vulnerability in the context of the climate emergency.38 The reformulated questions asked, among other things, about obligations concerning rights to life, health, personal integrity, private and family life, property, residence and movement, housing, water, food, work, social security, culture, education, and a healthy environment, as well as questions of procedural rights and differentiated protection.39 Unlike the ICJ, the Inter-American Court therefore approached climate change from the outset as a rights-saturated field. That framing helps to explain why the opinion aligns even more directly with the logic of ecocide, since it goes beyond identifying environmental obligations and instead constitutionalizes climate protection as a condition of a rights-respecting international order.

The opinion also represents an expansion of the Court’s earlier environmental jurisprudence. The Court expressly recalled its prior distinction between rights especially vulnerable to environmental degradation and procedural rights that support better environmental governance, and then applied that distinction to the request before it.40 Rather than treating environmental harm as a niche issue at the margins of human rights law, the Court now recognizes the climate emergency as a structural reality that reshapes how every state obligation under the Convention must be understood. This sense of continuity is particularly significant for the legal case for ecocide. It demonstrates that holding actors strictly accountable for ecological destruction is not a sudden or isolated legal leap, but the logical culmination of an increasingly deep jurisprudence that binds together environmental integrity, human dignity, and the legitimate exercise of public authority.

VI. How the Inter-American Court Advisory Opinion Supports Criminalizing Ecocide

A. Obligation to Respect, Protect, and Progressively Realize Human Rights (Including Economic, Social, and Cultural Rights)

The Inter-American Court began by restating the state obligation in relation to climate change. States must respect rights by abstaining from conduct that worsens the danger; they must guarantee rights by organizing the apparatus of government to prevent third-party harms; and they must adopt measures for the progressive realization of economic, social, cultural, and environmental rights using the maximum of available resources.41 The Court was explicit that, in the context of a climate emergency, states must not take regressive measures, slow or truncate measures necessary to protect rights from climate impacts, or obstruct the circulation of truthful and complete information relevant to those protections.42 It further held that, because reliable information already demonstrates the gravity and urgency of climate harms, states are bound to act with “enhanced due diligence.”43

Moreover, the Court reaffirmed that states must prevent violations in the private sphere when they know, or ought to know, of a real and immediate risk and have reasonable possibilities of prevention.44 It then translated that general principle into climate-specific obligations, including the requirement that states must adopt measures to reduce risks arising from degradation of the global climate system and from patterns of exposure and vulnerability, while also adapting domestic law to ensure respect, guarantee, and progressive realization of rights in the climate emergency.45 Progressive realization, in the Court’s account, is not a weak or indefinite aspiration. It is linked to resource allocation, non-discrimination, cooperation, and concrete institutional adaptation, particularly for vulnerable persons and communities.46

Recognizing ecocide as an international crime would not exhaust these duties, but it would supply a potent legal pathway for enforcing them at the point where environmental harm becomes exceptionally grave. The Court’s reasoning already points in that direction by insisting that the climate emergency engages the obligation to regulate private actors, adapt domestic law, and mobilize state capacity against known catastrophic risks.47 Ecocide would translate that logic into a penal norm directed at the most serious cases in which decision-makers, whether public officials or corporate leaders, persist in authorizing conduct despite knowledge of a substantial likelihood of devastating environmental harm. In that sense, ecocide would operationalize the obligation to protect rather than compete with it.48

B. Right to a Healthy Climate

The Inter-American Court’s opinion is especially important because it expressly articulates a right to a healthy climate. The Court held that this right derives from the right to a healthy environment and protects, in the specific context of the climate emergency, the global climate system as a component directly affected by anthropogenic interference.49 It emphasized that the right has both individual and collective dimensions. In the individual sphere it protects each person’s development within a climate system free from dangerous interference, while in the collective sphere it safeguards present and future humanity and nature.50 The Court also linked the right to a healthy climate with the need to protect nature and its components, to respect planetary limits, and to orient law toward genuinely sustainable development.51

Two features of this reasoning are especially relevant to ecocide. First, the Court incorporates equity and the protection of future generations into the substance of the right itself, rather than treating them as aspirational policy considerations.52 Second, it recognizes that nature and its components may be treated as rights holders whose long-term integrity must be preserved before existential harm becomes irreversible.53 This is a major normative development. A perennial debate in ecocide scholarship concerns whether the crime should remain anthropocentric or more openly embrace ecocentric values.54 While the Inter-American Court does not settle that debate, it clearly shifts the normative terrain towards a more ecological conception of legal protection. This shift provides a compelling doctrinal foundation for operationalizing the right to a healthy climate through the kind of ecologically aligned criminal law that some scholars have envisioned.55

Criminalizing ecocide could operationalize these obligations in ways that ordinary regulation often cannot. The Court held that, by virtue of the right to a healthy climate, states must protect the global climate system by mitigating greenhouse gas emissions, adopting a human rights-based mitigation strategy, regulating corporate behavior, supervising and enforcing compliance, and assessing the climate impacts of projects and activities.56 An ecocide offense would sharpen these duties by attaching the possibility of criminal liability to the most egregious breaches of the right. This shift supports both deterrence and practical implementation. Broad rights are often criticized for being under-enforced, as they lack clear addressees and strong sanctions. Ecocide would help bridge that gap by identifying the actors, conduct, and culpability thresholds necessary to translate the right to a healthy climate into concrete implementation.57

C. Obligation Not to Cause Irreversible Environmental Harm (Jus Cogens Dimension)

Perhaps the most ambitious part of the Inter-American Court’s opinion is the Court’s treatment of irreversible environmental harm. The Court reasoned that the prohibition of anthropogenic conduct causing irreversible damage to ecosystems and the common climate has a jus cogens dimension because it implicates the universal value of the conditions necessary for life on a habitable planet.58 Even if read cautiously, the doctrinal significance of this reasoning is profound. The Court is not stating that irreversible environmental destruction is bad policy or an ordinary treaty breach. It is locating the prohibition near the apex of the normative hierarchy in international law. That conclusion greatly strengthens the case for criminal law as part of the appropriate response to irreversible environmental harm. Historically, peremptory norms have often been associated with the strongest forms of legal condemnation, including penal repression, universal concern, and duties of cooperation.59 Environmental criminal law scholarship also supports the more modest proposition that criminal law contributes to prevention not only through deterrence but through denunciation, incapacitation, and the retributive acknowledgment of wrongdoing that administrative penalties often understate.60 If the prohibition of irreversible ecological destruction is properly understood as having jus cogens status, ecocide becomes more defensible as a criminal mechanism designed to prevent that very category of existential harm.

Finally, by giving irreversible environmental harm a jus cogens dimension and linking climate protection to duties of cooperation, the Inter-American Court weakens the claim that criminalization would be an illegitimate penal overreach into a field supposedly reserved for soft governance and managerial regulation.61 When a court characterizes the relevant wrong as a threat to the conditions of life on a habitable planet, it strengthens the case for transnationally coordinated enforcement, including robust domestic penal legislation and, eventually, international criminal codification. Criminal law is not the only translation of that reasoning, but it is one of the most intelligible, precisely because criminal law remains the legal form through which communities most clearly denounce conduct that places the basic terms of coexistence in jeopardy.62

D. Obligations Derived From Other Human Rights

The Inter-American Court’s opinion also deepens the case for ecocide by mapping the climate emergency across a wide constellation of substantive rights. The Court linked environmental degradation to the rights to life, personal integrity, and health; to private and family life; to residence and movement; to water and food; to work and social security; to culture; and to education.63 In doing so, it rejected a compartmentalized vision of climate harm. On this account, the climate emergency is not a discrete environmental externality that occasionally spills into rights law. It is a cross-cutting condition that destabilizes bodies, homes, livelihoods, social reproduction, community continuity, and the transmission of culture and knowledge.64 This integrated view of harm closely matches the intuition behind ecocide, namely that some forms of environmental destruction are not isolated infractions but systemic attacks on the material basis of multiple rights at once.65

The rights-specific passages of the opinion make that point concrete. The Court held that states have specific duties to protect life, personal integrity, and health from the risks of extreme weather, heat, disease, and disaster, including by strengthening health-system resilience.66 It required states to preserve private and family life in the face of climate-induced displacement and to protect family unity in mobility contexts.67 It emphasized that residence and movement are threatened by climate-driven mobility and that states must cooperate across local, national, and regional levels to protect persons displaced or at risk of displacement.68 It also underscored that water and food security are jeopardized by climate impacts on watersheds, soils, oceans, and agricultural systems; that work and social security are affected by changing labor conditions and livelihood loss; that cultural heritage and cultural life face direct and indirect destruction; and that education is harmed both directly through disasters and indirectly through effects on subsistence, health, water, and energy.69

When environmental destruction threatens multiple rights simultaneously, criminalization becomes easier to justify as a mode of human rights protection. The human rights literature on criminal law is relevant here, as it makes a case for penalization where rights are at stake and explains why legal systems sometimes require forceful responses to serious structural harms. Pinto and Kamber demonstrate how human rights bodies have increasingly pressed states towards criminalization, prosecution, and punishment in contexts where grave abuses would otherwise be normalized or rendered invisible.70 Sikkink and Kim, in turn, argue that human rights prosecutions can have wider norm-shaping and deterrent effects by signaling that certain abuses are intolerable and by changing expectations around elite accountability.71 If the gravest environmental destruction foreseeably produces mass deprivations of life, health, home, subsistence, mobility, culture, and education, a strong case exists for placing it within the same general family of normatively aggravated wrongs.

Criminalizing ecocide therefore offers a powerful legal pathway for safeguarding these interconnected rights, provided the offense is tightly drafted and limited to the gravest cases. It would not criminalize climate change in the abstract. Instead, it would target serious unlawful or wanton acts committed with knowledge of a substantial likelihood of catastrophic environmental damage, where the resulting rights violations are also grave and foreseeable.72 Penal norms can restructure incentives within corporations and bureaucracies, foreground duties of foresight and caution, and provide victims and affected communities with a language of blame commensurate with the scale of harm endured.73 The Inter-American Court’s opinion strengthens this pathway precisely by showing how environmental devastation cascades through the entire architecture of rights.

VII. Conclusion

Taken separately, the ICJ and Inter-American Court advisory opinions operate in different doctrinal idioms. The ICJ clarifies the content of states’ obligations under general international law and the legal consequences of their breach, while the Inter-American Court elaborates a rights-based constitutional order for the climate emergency. This order encompasses enhanced due diligence, domestic legal adaptation, a right to a healthy climate, protection for future generations and nature, and a prohibition on irreversible harm with a jus cogens dimension. Taken together, however, the opinions advance efforts to criminalize ecocide by making it increasingly untenable to treat the gravest ecological destruction as mere policy failure. They identify such destruction as a breach of settled duties of prevention, a source of state responsibility, a threat to the enjoyment of a wide range of human rights, and—in its irreversible forms—a wrong of the highest normative order.74

For this reason, the two opinions deepen the normative foundations for defending a crime of ecocide. They do not remove every objection; questions of legality, causation, and institutional design remain real and central to the debate. Yet the terms of argument have changed. Ecocide can now be defended not only as a moral aspiration or a rhetorical provocation, but as a logical extension of authoritative judicial reasoning about severe environmental harm, climate-related human rights protection, and the legal necessity of confronting conduct that endangers humanity’s ecological home. In this sense, the 2025 advisory opinions do not complete the work of criminalizing ecocide. But they make that work far harder to dismiss.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   See Frédéric Mégret, The Problem of an International Criminal Law of the Environment, 36 Colum. J. Envtl. L. 195, 198–206 (2011), paywall, earlier version (2010) online, download; Anastacia Greene, The Campaign to Make Ecocide an International Crime: Quixotic Quest or Moral Imperative?, 30 Fordham Envtl. L. Rev. 1, 3–11 (2019), available online; Liana Georgieva Minkova, The Fifth International Crime: Reflections on the Definition of “Ecocide”, 25 J. Genocide Research 62, 64–70 (2023), available online, doi. ↩

2. 2.

   Matthew Gillett, Ecocide, Environmental Harm and Framework Integration at the International Criminal Court, 29 Int’l J. of Hum. Rts. 1009, 1010–16 (2025), available online, doi; Rob D. White, Criminological Perspectives on Climate Change, Violence and Ecocide, 3 Current Climate Change Rep. 243, 243–48 (Dec. 2017), paywall, doi. ↩

3. 3.

   Obligations of States in Respect of Climate Change, Advisory Opinion, I.C.J. General List No. 187, 405–06 (Jul. 23, 2025) [hereinafter Obligations of States], available online. ↩

4. 4.

   Climate Emergency and Human Rights, Advisory Opinion, OC-32/25, Inter-Am. Ct. H.R., 27–28 (May 29, 2025) [hereinafter Climate Emergency and Human Rights], available online. ↩

5. 5.

   Stop Ecocide Foundation, Independent Expert Panel for the Legal Definition of Ecocide: Commentary and Core Text 5–6 (Jun. 2021) [hereinafter IEP Definition], available online. ↩

6. 6.

   Id. at 5–11; Minkova, supra note 1, at 64–71. ↩

7. 7.

   IEP Definition, supra note 5, at 2, 5–6. ↩

8. 8.

   Polly Higgins, Damien Short & Nigel South, Protecting the Planet: A Proposal for a Law of Ecocide, 59 Crim. L. & Soc. Change 251, 252–57 (Apr. 2013), available online, doi. ↩

9. 9.

   G.A. Res. 77/276, UN Doc. A/RES/77/276, Request for an advisory opinion of the International Court of Justice on the obligations of States in respect of climate change (Mar. 29, 2023), available online. ↩

10. 10.

    Margaretha Wewerinke-Singh, Jorge E. Viñuales & Julian Aguon, The Role of Advocates in the Conception of Advisory Opinion Requests, 117 Am. J. Int’l L. Unbound 277, 277–80 (Dec. 2023), available online, doi. ↩

11. 11.

    Obligations of States, supra note 3, at 1. ↩

12. 12.

    Wewerinke-Singh, Viñuales & Aguon, supra note 10. ↩

13. 13.

    Obligations of States, supra note 3, at 98–100, 309–15, 404. ↩

14. 14.

    See Mégret, supra note 1; Gillett, supra note 2. ↩

15. 15.

    Obligations of States, supra note 3, at 155, 182, 273. ↩

16. 16.

    IEP Definition, supra note 5, at 273, 280–85. ↩

17. 17.

    See Gillett, supra note 2; Greene, supra note 1. ↩

18. 18.

    Higgins, Short & South, supra note 8; White, supra note 2. ↩

19. 19.

    IEP Definition, supra note 5, at 7–11. ↩

20. 20.

    Obligations of States, supra note 3, at 94–95, 279, 427–30. ↩

21. 21.

    Id. at 279. ↩

22. 22.

    Id. at 279, 427–29. ↩

23. 23.

    Id. at 280–85, 291–97. ↩

24. 24.

    Ying Xie & Michael G. Faure, A Criminal Law Shield for Nature, 55 ELR 10543 (Sep. 2025), available online, archived. ↩

25. 25.

    Obligations of States, supra note 3, at 94–95, 427. ↩

26. 26.

    Id. at 376, 393, 403. ↩

27. 27.

    Id. at 403. ↩

28. 28.

    See Mattia Pinto, Awakening the Leviathan Through Human Rights Law—How Human Rights Bodies Trigger the Application of Criminal Law, 34 Utrecht J. Int’l and Eur. L. 161, 161–67 (Nov. 2018), available online, doi; Krešimir Kamber, Substantive and Procedural Criminal-Law Protection of Human Rights in Practical Legal Reasoning, Presented at Positive Obligations Under the ECHR and the Criminal Law: Towards a Coercive Human Rights Law? Ghent, Belgium, 1–7 (2018), available online, archived. ↩

29. 29.

    Pinto, supra note 28, at 161, 170–79. ↩

30. 30.

    Obligations of States, supra note 3, at 393, 403; Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics 11–24 (Sep. 2011), paywall. ↩

31. 31.

    Obligations of States, supra note 3, at 280–85, 403; Kellie Toole, Phillipa McCormack, Daan van Uhm, Marie Beillevert, Claire Williams & Phillip Cassey, Using the Criminal Law to Protect the Environment: Possibilities and Problems, 7 People and Nature 3057, 3058–66 (Nov. 2025), available online, doi. ↩

32. 32.

    See David M. Uhlmann, Environmental Crime Comes of Age: The Evolution of Criminal Enforcement in the Environmental Regulatory Scheme, 2009 Utah L. Rev. 1223, 1231–45 (Jan. 2009), available online, doi; Michael G. Faure & Katarina Svatikova, Criminal or Administrative Law to Protect the Environment? Evidence from Western Europe, 24 JEL 253, 283–86 (May 2012), paywall, archived, doi. ↩

33. 33.

    Obligations of States, supra note 3, at 316–68. ↩

34. 34.

    Martin Hedemann-Robinson, Implementation Shortcomings and International Reaction, in Enforcement of International Environmental Law: Challenges and Responses at the International Level (2019), paywall. ↩

35. 35.

    Climate Emergency and Human Rights, supra note 4. ↩

36. 36.

    Nancy Hernández López, President of the Inter-Am. Ct. H.R., Message for 166th Session of the Court in Barbados (Apr. 2024), available online.

    Climate Emergency and Human Rights, supra note 4, at 1–9. ↩

37. 37.

    Climate Emergency and Human Rights, supra note 4, at 1–9. ↩

38. 38.

    Id. ↩

39. 39.

    Id. ↩

40. 40.

    Id. ↩

41. 41.

    Id. ↩

42. 42.

    Id. ↩

43. 43.

    Id. ↩

44. 44.

    Id. ↩

45. 45.

    Id. ↩

46. 46.

    Id. ↩

47. 47.

    Id. ↩

48. 48.

    See Pinto, supra note 28, at 171–79; Kamber, supra note 28, at 7–12. ↩

49. 49.

    Climate Emergency and Human Rights, supra note 4, at 297, 303. ↩

50. 50.

    Id. at 303, 314–16. ↩

51. 51.

    Id. at 279, 314–16. ↩

52. 52.

    Id. ↩

53. 53.

    Id. at 279, 314–16. ↩

54. 54.

    See Rob D. White, Ecocentrism and Criminal Justice, 22 Theoretical Criminology 342, 344–56 (Aug. 2018), paywall, doi; Minkova, supra note 1, at 71–80. ↩

55. 55.

    Rosemary Mwanza, The Right to a Healthy Environment as a Catalyst for the Codification of the Crime of Ecocide, 117 Am. J. Int’l L. Unbound 189 (2023), available online, doi. ↩

56. 56.

    Climate Emergency and Human Rights, supra note 4, ¶ 10. ↩

57. 57.

    See Gillett, supra note 2, at 1027–35; Kellie Toole et al., supra note 31, at 3058–66. ↩

58. 58.

    Climate Emergency and Human Rights, supra note 4, at 87–94. ↩

59. 59.

    See Payam Akhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?, 95 Am. J. Int’l L. 7, 9–17 (Jan. 2001), paywall, doi. ↩

60. 60.

    See Uhlmann, supra note 32; Michael M. O’Hear, Sentencing the Green-Collar Offender: Punishment, Culpability, and Environmental Crime, 95 J. Crim. L. & Criminology 133, 146–54 (2004), available online; Yingyi Situ & David Emmons, Environmental Crime: The Criminal Justice System’s Role in Protecting the Environment 1–15 (2000), paywall. ↩

61. 61.

    Climate Emergency and Human Rights, supra note 4, at 287–94. ↩

62. 62.

    See Akhavan, supra note 59, at 9–17; Sikkink, supra note 30. ↩

63. 63.

    Climate Emergency and Human Rights, supra note 4, at 400–02, 404, 415, 432, 435, 441, 448–52, 454–57. ↩

64. 64.

    Id. at 400–57. ↩

65. 65.

    See Higgins, Short & South, supra note 8; White, supra note 2, at 243–48. ↩

66. 66.

    Climate Emergency and Human Rights, supra note 4, at 400–02. ↩

67. 67.

    Id. at 403–05. ↩

68. 68.

    Id. at 415, 432. ↩

69. 69.

    Id. at 435, 441, 448–52, 454–57. ↩

70. 70.

    Pinto, supra note 28, 161–79; Kamber, supra note 28, 1–12. ↩

71. 71.

    Sikkink, supra note 30; Hunjoon Kim & Kathryn Sikkink, Explaining the Deterrence Effect of Human Rights Prosecutions for Transitional Countries, 54 Int’l Stud. Q. 939, 939–49 (Dec. 2010), paywall, doi. ↩

72. 72.

    IEP Definition, supra note 5, at 5–11. ↩

73. 73.

    See Uhlmann, supra note 32, at 1238–52; Situ & Emmons, supra note 60, at 1–15; Kellie Toole et al., supra note 31, at 3058–66. ↩

74. 74.

    Obligations of States, supra note 3, at 94–100, 273–97, 403, 427–30; Climate Emergency and Human Rights, supra note 4, at 233, 244–46, 287–316. ↩

75. Suggested Citation for this Comment:

    Rosemary Mwanza, The International Court of Justice and Inter-American Court of Human Rights Climate Advisory Opinions Strengthen the Case for Criminalizing Ecocide, ICC Forum (May 20, 2026), available at https://iccforum.com/ecocide#Mwanza.

    Suggested Citation for this Issue Generally:

    Should the Crime of “Ecocide” Be Added to The Rome Statute?, ICC Forum (May 20, 2026), available at https://iccforum.com/ecocide.

Argument Continued

III. Why the Rome Statute?

The International Criminal Court (ICC) is a compromised institution from an African perspective.8 The perception of selective prosecution is not imaginary. For years, all situations under investigation were African. The African Union has repeatedly expressed concern, and several African states have either withdrawn or threatened withdrawal.9 These grievances are legitimate and foreshadow how any new crime added to the Rome Statute will be received.

Why then should ecocide be added to this institution? The answer lies in pragmatism rather than endorsement or idealism. The current geopolitical climate is hostile to new multilateral instruments. Great power competition, treaty fatigue, and funding constraints among competing state priorities make the negotiation of a standalone ecocide treaty extremely difficult.10 The ratification threshold problem compounds this. How many states would need to ratify a new treaty before it carries any meaning? The ICC took years to move from concept to operation. A new environmental crimes tribunal or standalone ecocide convention would face similar delays, assuming it could achieve sufficient ratification at all.

The alternatives have already been tested and found wanting. The draft Crimes Against Humanity Treaty has stalled for years despite addressing crimes that enjoy near-universal condemnation.11 Regional instruments like the Council of Europe Convention on Environmental Crimes cannot achieve global reach.12 The December 2024 proposal by Vanuatu, Fiji, Samoa, and subsequently the DRC to add ecocide to the Rome Statute13 indicates a recognition by Global South states themselves that the existing institution offers the most viable path, and their choice of forum is instructive.

The Rome Statute’s infrastructure already exists. Its 125 states parties,14 prosecutorial mechanisms, complementarity regime, and enforcement architecture would take decades to replicate.15 The practical question is therefore not whether the ICC is ideal but whether it is better than the alternatives. For ecocide, the alternatives appear to be indefinite delay or no international criminalization at all.

African states therefore face a strategic choice. They can disengage from the ecocide debate and allow the definition to be crafted without their input. Or they can engage actively to shape how ecocide is defined, ensuring that the crime reflects Global South realities rather than Western preoccupations alone. Disengagement cedes the institution to others. Engagement offers the possibility of influence over the definition that will govern how environmental crimes are prosecuted for decades to come.

IV. The Problem with Current Definitions

Albeit ambitious, the central difficulty with existing proposals to define ecocide lies in their failure to distinguish between who causes environmental harm and who is criminally responsible for it, and in the failure to make room for legitimate developmental activities. The Independent Expert Panel defines ecocide as:

[U]nlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment.”16

The Vanuatu proposal adopts a closely related formulation.17 Both definitions share a structural flaw that becomes apparent when applied to real cases in the Global South.

Under these definitions, those who physically carry out environmentally destructive acts appear as the most obvious candidates for prosecution. In Ghana’s galamsey crisis, this would place the 1.1 million artisanal miners at the center of criminal liability. They dig the pits, operate the machinery, and release mercury into rivers. They plainly cause severe and widespread environmental damage and do so with direct knowledge of its effects. On the face of the proposed definitions, they satisfy both the conduct and mental state requirements of ecocide.

Yet prosecuting these individuals would represent injustice. These miners are not environmental criminals in any meaningful moral or political sense. They are economically marginalized people operating under conditions of structural constraint.18 Many were displaced from farming by earlier environmental degradation or have no viable economic alternatives.19 They destroy their own environment not from reckless disregard but from desperate need. They are simultaneously perpetrators and victims of environmental harm. Criminal law that treats desperation-driven survival activity as equivalent to profit-driven environmental destruction fundamentally misunderstands how environmental harm is produced in contexts of deep inequality.

The true architects of environmental destruction risk remaining legally peripheral under current definitions. Corporations, politically connected elites, and foreign investors organize, finance, and profit from environmentally destructive operations but rarely perform the acts that cause immediate harm.20 Their involvement is mediated through contractors, informal networks, and shell entities. Their knowledge is diffuse but real. Their control is structural rather than physical. Under ecocide definitions focused narrowly on acts causing environmental damage, their distance from the site of harm may complicate attribution of criminal responsibility.

This is a problem of definition. Criminal law definitions determine patterns of visibility and invisibility.21 A definition that centers environmental harm in isolation from questions of power, benefit, and social context risks criminalizing those who act from desperation while insulating those who design and profit from environmental exploitation.

The Rome Statute’s existing framework could reach these architects, but only with an appropriate definition.22 Article 25 extends liability beyond direct perpetrators to those who order, solicit, aid, abet, or otherwise contribute to crimes.23 A corporate executive who finances a mining operation knowing it will poison rivers may incur criminal responsibility even without operating mining equipment. A politically connected elite who shields illegal operations from enforcement aids and abets ecocide. The complementarity regime reinforces this. States that criminalize only the visible poor while protecting politically connected elites would demonstrate an unwillingness to genuinely address ecocide. But these possibilities depend on a definition that makes the conduct of organizers and financiers visible as ecocide in the first place.

This definitional failure is also evident in its failure to make room for legitimate development activities. The IEP and Vanuatu proposals adopt predominantly ecocentric approaches, treating environmental harm as a self-contained legal interest largely detached from social, economic, and developmental context. Definitions determine enforcement patterns. A definition that abstracts environmental harm from human impact reorders suspicion, casting development-related activity as inherently dangerous and treating environmentally destructive conduct as presumptively criminal regardless of who benefits, who suffers, and who exercises control.

Under the IEP’s wantonness standard, conduct may be criminal even where it is lawful domestically, economically necessary, and socially embedded, provided it is deemed to show reckless disregard for environmental harm.24 This creates serious risk that large-scale infrastructure projects, mineral extraction, energy development, and agricultural expansion in developing states become subject to international criminal scrutiny while comparable historical conduct in industrialized states remains legally irrelevant. Criminal law, which ought to be the sharpest and most restrained instrument of international governance, becomes instead a tool of temporal selectivity.

Many Global South economies remain structurally dependent on extractive industries and land-intensive development.25 These activities often carry environmental costs, but they also finance public services, employment, and industrialization pathways that wealthier states have already traversed. A definition that treats environmental harm in isolation risks criminalizing the very strategies through which states seek to escape poverty while ignoring the historical environmental destruction that underwrote Northern prosperity.26 In international criminal law, where criminal liability is imposed prospectively and selectively, this dynamic produces injustice.

The pattern also reflects questions about who defines international crimes. International criminal law has never been politically neutral.27 Colonial powers shaped the laws of war. Industrial powers played decisive roles in articulating crimes against humanity. Today, largely post-industrial states and transnational advocacy networks dominate discourse on environmental criminalization. Each expansion of international criminal law reflects prevailing power relations, determining which harms become legally visible and which are normalized or forgotten.

Ecocide definitions that abstract environmental harm from both developmental context and questions of responsibility risk reproducing this pattern under new normative vocabulary. They frame environmental protection as absolute while relegating development to a secondary, justificatory role. In practice, this treats Global South development as something that must constantly defend itself before international tribunals while Northern consumption patterns and historical emissions remain structurally insulated from comparable scrutiny. The same abstraction that makes the 1.1 million galamsey miners appear as environmental criminals while obscuring the corporations that exploit them also makes contemporary African industrialization appear suspect while erasing Europe’s coal-powered rise.

This critique is not an argument against environmental protection, nor is it a rejection of ecocide as an international crime. It is an argument about precision and effectiveness. Criminal law that is perceived as unfair or selectively burdensome invites resistance and strategic non-compliance and does not deter harmful conduct. A definition of ecocide that Global South states experience as hostile to their developmental trajectories and that criminalizes desperate populations while protecting powerful actors will not be enforced domestically, will not be supported politically, and will ultimately fail to protect the environments it seeks to safeguard.

If ecocide is to be added to the Rome Statute, its definition must confront the real drivers of environmental destruction rather than indulge in moral abstraction. It must distinguish between environmentally destructive exploitation organized from positions of power and development-oriented activity carried out under conditions of constraint. It must recognize that those who physically cause environmental harm are not necessarily those most responsible for it. It must avoid temporal selectivity that criminalizes present conduct in poor countries while treating past conduct in wealthy countries as irrelevant. Without these distinctions, the crime of ecocide risks becoming another mechanism through which international law disciplines the Global South while leaving the structural drivers of global environmental harm intact.

V. The Hybrid Definition

A hybrid approach bridges anthropocentric and ecocentric paradigms while addressing legitimate development concerns. In recent work with Enam Korkor Antonio and Mordechai Nyamekye, we proposed the following definition:

Ecocide means intentionally or recklessly committing acts or omissions that cause severe and either widespread or long-term damage to the natural environment, where such damage (a) substantially disrupts essential ecological functions, biodiversity, or ecosystem services, and (b) results in, or creates a substantial likelihood of, serious harm to human health, safety, livelihood, or fundamental rights, including those of present and future generations.

This definition shall not apply to acts conducted under legally authorized, scientifically validated sustainable management practices, provided such acts include measures to prevent, mitigate, and remediate environmental harm.28

Requiring both environmental damage and human impact ensures that development activities benefiting communities are not criminalized. Only exploitation that actually damages the populations it claims to serve crosses the threshold into criminal conduct. The exemption clause for legally authorized, scientifically validated sustainable management practices provides positive guidance on permissible conduct rather than merely negative prohibition. States and corporations can understand what is permissible, addressing concerns about legal certainty.

The argument may be made that the proposed exemption risks abuse, particularly in contexts marked by regulatory capture or weak governance. This concern is legitimate and underscores the need for careful drafting. Legal authorization obtained through corruption, coercion, or systematic regulatory failure should not shield conduct from criminal scrutiny. Similarly, scientific validation must be understood as compliance with internationally recognized standards rather than domestically convenient assessments. The exemption must be narrow enough to prevent abuse while broad enough to protect legitimate development activity.

Implementation will require enhanced environmental expertise at the ICC. Global South states should insist on meaningful representation in its development. Environmental assessment involves judgment calls about severity and what constitutes recovery, and these judgments reflect assumptions about acceptable environmental conditions. If Northern experts dominate, Northern assumptions will dominate. Ghana’s galamsey crisis illustrates this. International assessments focus primarily on mercury contamination and forest loss. Ghanaian environmental scientists also emphasize destruction of cocoa farms, loss of millennia-old topsoil, disruption of seasonal fishing patterns, and contamination of sacred groves that anchor community identity. Ecocide prosecution requires expertise that recognizes all dimensions of environmental destruction.

The hybrid definition advanced here is not presented as a final or exhaustive solution. Rather, it offers a principled starting point for serious and inclusive discussion. Its purpose is to shift the ecocide debate away from abstract moralism and toward a framework capable of attracting broad support while delivering meaningful environmental protection.

VI. Conclusion

Ecocide should be added to the Rome Statute. Whether that addition advances justice or reproduces inequality depends entirely on how the crime is defined.

Ghana’s galamsey crisis illustrates what is at stake. The 1.1 million people visibly destroying rivers and forests are not environmental criminals in any meaningful moral sense. They are economically marginalized actors exploited by those who organize environmental destruction for profit. An ecocide definition that cannot distinguish between these groups will either criminalize poverty or leave exploitation unprosecuted. Current proposals fail this test.

An ecocide crime defined through Western priorities without regard for development realities risks entrenching power asymmetries in international law. It would subject Global South development activities to intensified scrutiny while leaving industrialized states insulated from accountability for the environmental destruction that enabled their prosperity. Worse, it would risk prosecuting desperate artisanal miners while corporate executives, foreign financiers, and politically connected elites who design and profit from environmental destruction remain beyond reach. That outcome would represent environmental injustice, not environmental protection.

African and other developing states should therefore engage actively in shaping the definition of ecocide rather than opposing criminalization or accepting frameworks designed without their input. The ICC’s legitimacy in Africa, already strained, depends in part on demonstrating that it can serve African interests rather than merely discipline African conduct. An ecocide definition that protects development while addressing genuine environmental destruction would mark a meaningful step toward a more legitimate and inclusive international criminal law.

The hybrid definition proposed here offers such a framework. It distinguishes between those who organize environmental destruction from positions of power and those who carry it out under structural constraint. It requires both severe environmental damage and demonstrable human harm, ensuring that prosecution targets exploitation that actually injures communities rather than development activity that serves them. It provides legal certainty through a narrowly framed sustainable development exemption, rather than treating all resource extraction as presumptively criminal.

Environmental protection and development justice are inseparable. So too are environmental protection and economic justice. A properly designed ecocide crime advances all three. An improperly designed crime sacrifices the vulnerable to protect the powerful while failing to protect the environments where harm is most severe. Global South states must engage to ensure the former rather than accept the latter. The stakes are too high for disengagement.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], available online. ↩

2. 2.

   Stop Ecocide Foundation, Independent Expert Panel for the Legal Definition of Ecocide: Commentary and Core Text (Jun. 2021) [hereinafter IEP Definition], available online. ↩

3. 3.

   Assembly of States Parties, Proposal Submitted by Vanuatu to Amend the Rome Statute, ICC-ASP/23/26 at Annex II (Dec. 1, 2024) [hereinafter Vanuatu Proposal], available online. ↩

4. 4.

   Enoch Yeleliere, Samuel Cobbina & Abudu Duwiejuah, Review of Ghana’s Water Resources: The Quality and Management with Particular Focus on Freshwater Resources, 8 Applied Water Science 93 (2018), available online, doi. ↩

5. 5.

   Abena Obiri-Yeboah, Emmanuel Kwesi Nyantakyi, Abdul Rahim Mohammed, Saeed Ibn Idris Kofi Yeboah, Martin Kyereh Domfeh & Ebenezer Abokyi, Assessing Potential Health Effect of Lead and Mercury and the Impact of Illegal Mining Activities in the Bonsa River, Tarkwa Nsuaem, Ghana, 13 Sci. Afr. (2021), available online, doi. ↩

6. 6.

   Ghana: On Our Way to Participatory Reform in the Artisanal and Small-Scale Mining Sector, IIED, available online (last visited Mar. 24, 2026); Ghana’s Government Focuses on Reforming Small Scale Mining, Oxford Business Group, available online (last visited Mar. 24, 2026). ↩

7. 7.

   Celeste Cedillo & Juan Antonio Le Clercq, Green Impunity: Measuring Ecojustice, Institutional Capacities and Policy Design as an Approach to Environmental Security, in Handbook of Security and the Environment 115 (Ashok Swain, Joakim Öjendal & Anders Jägerskog eds., May 21, 2021), paywall, doi. ↩

8. 8.

   Jean-Baptiste Jeangène Vilmer, The African Union and the International Criminal Court: Counteracting the Crisis, 92 Int’l Aff. 1319 (Nov. 4, 2016), paywall, doi. ↩

9. 9.

   Brendon J. Cannon, Dominic R. Pkalya & Bosire Maragia, The International Criminal Court and Africa: Contextualizing the Anti-ICC Narrative, 2 AJICJ 6 (Nov. 30, 2016), available online, doi. ↩

10. 10.

    Benedict Abrahamson Chigara & Chidebe Matthew Nwankwo, “To be or not to be?” The African Union and its Member States Parties’ Participation as High Contracting States Parties to the Rome Statute of the International Criminal Court, 33 NJHR 243 (2015), available online, doi. ↩

11. 11.

    International Law Commission, U.N. Doc. A/74/10, Draft Articles on Prevention and Punishment of Crimes Against Humanity (2019), available online; Charles C. Jalloh, The International Law Commission’s First Draft Convention on Crimes Against Humanity: Codification, Progressive Development, or Both?, 52 Case W. Res. J. Int’l L. 331 (2020), available online. ↩

12. 12.

    Council of Europe, Explanatory Report to the Council of Europe Convention on the Protection of the Environment through Criminal Law, CETS No. 228 (Strasbourg, Dec. 3, 2025), available online. ↩

13. 13.

    Vanuatu Proposal, supra note 3. ↩

14. 14.

    The States Parties to the Rome Statute, ICC, available online (last visited Mar. 24, 2026). ↩

15. 15.

    Office of the Prosecutor, ICC, Policy on Addressing Environmental Damage through the Rome Statute (Dec. 2025) [hereinafter Addressing Environmental Damage], available online. ↩

16. 16.

    IEP Definition, supra note 2. ↩

17. 17.

    Vanuatu Proposal, supra note 3; see also Odo Tevi, Permanent Representative of Vanuatu to the U.N., Proposal—Independent Crime of Ecocide (Nov. 2024), available online. ↩

18. 18.

    The literature calls artisanal mining a “poverty alleviating strategy.” See The World Bank, Strategy for African Mining, Technical Paper No. 181 (Mar. 31, 1993), available online; see also African Union, Africa Mining Vision (Feb. 2009), available online. ↩

19. 19.

    Brandon Marc Finn, Adam Simon & Joshua Newell, Decarbonization and Social Justice: The Case for Artisanal and Small-Scale Mining, 117 ERSS 103733 (Nov. 2024), paywall, doi. ↩

20. 20.

    Victor Jupp, Pamela Davies & Peter Francis, The Features of Invisible Crimes, in Invisible Crimes 3 (Pamela Davies, Peter Francis & Victor Jupp eds., 1999), paywall. ↩

21. 21.

    Randle C. DeFalco, Invisible Atrocities: The Aesthetic Biases of International Criminal Justice 63-98 (CUP, Mar. 10, 2022), paywall, doi. ↩

22. 22.

    Addressing Environmental Damage, supra note 15. ↩

23. 23.

    Gerhard Werle, Individual Criminal Responsibility in Article 25 ICC Statute, 5 J. Int’l Crim. Just. 953 (Sep. 1, 2007), available online, doi. ↩

24. 24.

    Matthew Gillett, A Tale of Two Definitions: Fortifying Four Key Elements of the Proposed Crime of Ecocide (Part I), Opinio Juris (Jun. 20, 2023), available online. ↩

25. 25.

    Gary McMahon & Susana Moreira, The World Bank, The Contribution of the Mining Sector to Socioeconomic and Human Development, Extractive Industries for Development Series No. 30 (Jun. 12, 2014), available online, doi. ↩

26. 26.

    C. Russell H. Shearer, International Environmental Law and Development in Developing Nations: Agenda Setting, Articulation, and Institutional Participation, 7 Tul. Envtl. L.J. 391 (1994), available online. ↩

27. 27.

    Tim Murithi, Is the International Criminal Court a Political Institution?, ICC Forum (Jun. 19, 2025), available online. ↩

28. 28.

    For the full article, together with the justifications provided for this definition, see Enam Korkor Antonio, Daniel Adjin Odonkor & Mordechai Nyamekye, Beyond Environmental Harm: Redefining Ecocide to Address Global South Realities Through Ghana’s Illegal Mining Crisis, Int’l J. of Hum. Rts. 1 (Oct. 2025), paywall, slide deck available online, doi. ↩

29. Suggested Citation for this Comment:

    Daniel Adjin Odonkor, Ecocide Should Be Added to the Rome Statute with a Definition That Protects the Development of the Global South, ICC Forum (May 20, 2026), available at https://iccforum.com/ecocide#Odonkor.

    Suggested Citation for this Issue Generally:

    Should the Crime of “Ecocide” Be Added to The Rome Statute?, ICC Forum (May 20, 2026), available at https://iccforum.com/ecocide.

Argument Continued

II. Ecocide’s Origins in War and Its Expansion Beyond War

The history of the concept helps explain why. Ecocide first emerged in response to wartime environmental devastation, especially the United States’ use of herbicides during the Vietnam War. In its early legal life, it was closely associated with methods of warfare and with efforts to condemn extreme environmental destruction in conflict. Richard Falk’s 1973 draft convention reflected that setting.12 In that original register, ecocide was much closer to international humanitarian law than to contemporary international environmental law. Its first normative home was concern with wartime excess, not the regulation of peacetime industrial or extractive activity.14

That origin matters because it helps explain the structure of the Rome Statute itself. When the Statute was negotiated, environmental destruction entered only in a narrow and specifically wartime form through Article 8(2)(b)(iv). That provision criminalizes intentionally launching an attack in the knowledge that it will cause widespread, long-term, and severe damage to the natural environment that is clearly excessive in relation to the concrete and direct overall military advantage anticipated in the context of an international armed conflict. Environmental harm is thus recognized, but only as an excess in the conduct of hostilities. The provision does not protect the environment as an autonomous value; it protects it through a distinctly humanitarian and proportionality-based frame.

As I argued elsewhere, that structure reflected a deeper value choice. Mass environmental damage was conceptualized primarily through interstate war, even after the development of modern international environmental law. The result was legal prioritization: military considerations and the logic of international humanitarian law retained primacy over norms aimed more directly at environmental protection.16 The uneasy interaction of legal orders was present from the start.

Later advocacy transformed the picture but did not resolve the tension. Polly Higgins and others sought to reconceptualize ecocide as a crime against peace, capable of applying also in peacetime and directed not only against human beings but against the environment and other species more broadly. Rachel Killean has recently shown how ecocide’s relationship with war has therefore evolved rather than disappeared: the concept moved outward from wartime destruction toward a broader concern with extractivism, corporate harm, and ecological crisis, yet it still bears the marks of its conflict-related origins.18 Daniel Bertram makes a similar point when he describes ecocide as having become a “catch-all term to denounce various forms of environmental violence and destruction,” even though its genealogy lies in a scientist-driven campaign against herbicidal warfare in Vietnam.20

III. The 2021 Definition and the Problem of Ambiguity

The Independent Expert Panel’s 2021 definition21 reflects this mixed lineage. It defines ecocide as:

[U]nlawful 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.

The draft is often praised for its pragmatism and political viability. But it also crystallizes the tensions that have marked ecocide from the beginning. It speaks in the idiom of international criminal law, borrows conceptual architecture from international humanitarian law, and pursues normative ambitions associated with international environmental law.

Several recent interventions make this difficulty plain. Jérôme de Hemptinne argues that the proposed definition is ambiguous precisely because it borrows from international humanitarian law in order to maximize its chances of state acceptance, while masking the fact that ecocide still lacks clear status as an international crime under customary or conventional international law. On that view, the use of terms such as “severe,” “widespread,” and “long-term” is not innocent. It anchors a novel offense in categories already familiar to states, even if those categories sit uneasily with a crime not limited to armed conflict.23 Christina Voigt, writing from the perspective of an Independent Expert Panel member, largely confirms that pragmatism. She explains that the definition was shaped by realism, precedent, deference to existing Rome Statute crimes, environmental integrity, and legal effectiveness. The resulting text was therefore not the most ecocentric definition imaginable, but the one thought to have at least some prospect of political support.25

Darryl Robinson perhaps best captures the core doctrinal dilemma. The problem is not simply that environmental destruction is difficult to define. It is that international criminal law and international environmental law organize wrongfulness differently. Environmental law often relies on authorization, mitigation, due diligence, and calibrated balancing rather than on fixed and absolute prohibitions of the sort more familiar to atrocity law. Robinson therefore describes the central challenge as one of “puzzles and possibilities”: how to identify wrongful and internationally punishable environmental conduct while preserving the relative clarity and predictability demanded by criminal law. No simple solution fully squares that circle. Approaches based on domestic illegality, balancing, environmental principles, or mixed models all carry real difficulties.27

IV. Wantonness, Anthropocentrism, and the Identity of the Crime

The most revealing fault line lies in the notion of “wanton” conduct. Under the proposed definition, wantonness means reckless disregard for damage that would be clearly excessive in relation to the social and economic benefits anticipated. This may have been intended as a workable compromise. Yet it also imports into the core of the crime a balancing exercise that many advocates hoped ecocide would transcend. As the introductory chapter to Ecocide: Criminalising Serious Harm against the Environment notes, the requirement draws from the environmental law principle of sustainable development and therefore involves a balancing act between expected environmental damage and anticipated social and economic benefits.29 Viewed from another perspective, the plain reading of wantonness contrasts the causation of mass environmental harm with the objective of economic development, effectively rendering the latter a potential shield from criminal culpability.31

This is not a merely technical problem. It goes to the identity of the crime. If ecocide is genuinely ecocentric, then nature must be protected at least partly for its inherent value. But if liability depends on a cost-benefit calculus framed in human terms, the offense remains structurally anthropocentric. A related critique is that the notion of wantonness may hinder ecocide’s development into a genuinely ecocentric crime, while also bringing to the fore practical and applicability problems where the underlying conduct is otherwise lawful.33 Killean and Short, while defending ecocide in principle, likewise question “overly onerous cost-benefit analysis” and seek a more “robust articulation” of the crime.35

V. The Institutional Problem: Can the International Criminal Court Accommodate Ecocide?

The difficulty deepens once ecocide is placed inside the institutional architecture of the International Criminal Court. International criminal law is not simply a language of condemnation; it is a discipline of delimited criminalization, legality, and stigma. It operates as an ultimum refugium, especially in light of complementarity and the Court’s limited capacity. Danuta Palarczyk presses the critique further by arguing that the Court’s human-centric foundations make it structurally difficult for it to produce environmentally satisfactory results through a new ecocide crime alone. Her alternative is not abandonment of environmental accountability, but a more modest effort to maximize the environmental potential of the existing Rome Statute framework, especially through more resourceful use of war crimes provisions and a greener reading of Articles 21(3) and 7(1)(h).37 Whether or not one agrees with that prescription in full, it usefully reinforces the point that ecocide is not merely a missing provision waiting to be inserted into an otherwise stable architecture.

Matthew Gillett’s recent work shows why this matters. He argues that the Court’s present normative framework is overwhelmingly anthropocentric and that proceedings concerning environmental harm, including any future ecocide cases, will require the Court to draw on law external to the Rome Statute, including international environmental law, international humanitarian law, and international human rights law. Yet Article 21 of the Rome Statute does not clearly explain how such sources are to be incorporated, and the Court’s practice remains underdeveloped. His proposal of “framework integration” is, in essence, an attempt to solve the problem ecocide exposes most sharply: the Court cannot adjudicate environmental harm coherently without clarifying how these bodies of law are to interact.39 That insight supports caution rather than defeatism. Ecocide is not merely a new offense; it is a test case for the coherence of international law across its subfields.

VI. Armed Conflict, Existing Crimes, and the Destruction of the Nova Kakhovka Dam as a Test Case

The war-peace divide illustrates the problem vividly. A major impetus behind ecocide advocacy is dissatisfaction with the narrowness of Article 8(2)(b)(iv) of the Rome Statute. As has been illustrated, that provision’s cumulative threshold, together with the military advantage balancing test, makes it extremely difficult to apply in practice.41 The destruction of the Nova Kakhovka dam may present one of the strongest recent examples of wartime environmental devastation, and yet even there the doctrinal obstacles remain formidable: whether the conduct qualifies as an “attack,” whether the environmental threshold is satisfied, and how international humanitarian legal rules on dangerous forces, proportionality, precautions, occupation, and environmental protection apply.43 Killean is right to emphasize that ecocide’s expansion beyond war does not itself resolve these wartime problems; it partly sidesteps them.45

At the same time, ecocide’s expansion beyond war has usefully intensified pressure on existing law. The choice is not a binary one between creating a new crime and making more ambitious use of the Rome Statute’s current provisions. Still, that development does not remove the need to ask whether ecocide would contribute something normatively and institutionally distinct.

VII. International and Domestic Legal Orders

The interaction between international and domestic legal orders further complicates the picture. Domestic ecocide laws, including Ukraine’s, may offer more direct pathways in particular cases. At the same time, they reveal how plural and context-specific ecocide already is. Killean and Short rightly stress the importance of domestic criminalization, interim non-binding measures, and “legal humility” about what criminalization can achieve. Their point is not that ecocide lacks value, but that it should be seen as one tool among many rather than as a singular legal solution.47 That observation is especially important now that domestic initiatives in places such as Belgium and broader regional developments in Europe are proceeding alongside the Rome Statute debate.49

This pluralism is not necessarily a weakness. It may instead reveal that ecocide is developing across multiple legal orders before it is stabilized in any one of them. But that fact only strengthens the central point of this comment: if ecocide is to become a coherent international crime, its underlying normative foundations must be made clearer than they presently are.

VIII. Conclusion

For all these reasons, ecocide should be understood not as a settled institutional answer but as a contested normative project. Daniel Bertram has suggested that its value may lie less in demonstrable utility than in a stubborn politics of hope under conditions of ecological precarity. Indeed, hope can be politically generative, yet criminal law cannot rest on hope alone. The more ecocide is asked to do at once, such as to deter, stigmatize, express solidarity, transform environmental governance, compensate for the Court’s limitations, and respond to climate injustice, the greater the need to specify what kind of crime it is and what institutional work it can realistically perform.51

My conclusion is therefore qualified but clear. Ecocide may ultimately deserve inclusion in the Rome Statute. But the debate should move beyond whether severe environmental harm is sufficiently grave and instead ask what kind of legal wrong ecocide is meant to be. Is it fundamentally a crime against peace, a crime against ecosystems as such, an atrocity against humans mediated through environmental destruction, or some hybrid of these? How should the Court integrate international environmental law, international humanitarian law, and human rights law when adjudicating it? Should the offense retain a cost-benefit balancing logic at all? And can a concept whose origins lie in wartime devastation be transformed into a coherent peacetime crime without losing sight of its historical roots?

Until those questions are answered more directly, the project of ecocide will remain both compelling and fragile. Its promise lies not in obscuring the tensions among legal orders, but in clarifying them. Only then can ecocide become something more than a morally resonant label. It can emerge as a legally credible crime, grounded in principle and capable of operating coherently at the intersection of international humanitarian law, international criminal law, and international environmental law.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. †.

   This comment stems from a research project implemented in the framework of the H.F.R.I. “3rd Call and Management and Implementation Guide for H.F.R.I. Research Projects to Support Faculty Members and Researchers” (Project No. 25584). ↩

2. 1.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], available online. ↩

3. 2.

   Stop Ecocide Foundation, Independent Expert Panel for the Legal Definition of Ecocide: Commentary and Core Text (Jun. 2021) [hereinafter IEP Definition], available online. ↩

4. 3.

   Darryl Robinson, Ecocide—Puzzles and Possibilities, 20 J. Int’l Crim. Just. 313, 313–16 (2022), available online; Christina Voigt, «Ecocide» as an International Crime: Personal Reflections on Options and Choices, EJIL Talk (Jul. 3, 2021), available online. ↩

5. 4.

   Laura Burgers, Merle Kooijman, Stavros Evdokimos Pantazopoulos & Christophe Paulussen, Ecocide: Analysing the Compatibility of the Crime of Seriously Harming the Environment with International Criminal Law, in Ecocide: Criminalising Serious Harm against the Environment (Laura Burgers, Merle Kooijman & Christophe Paulussen eds., Apr. 2026), paywall; Rachel Killean & Damien Short, A Critical Defence of the Crime of Ecocide, Envtl. Pol. 1, 2–4 (Apr. 24, 2025), available online, doi. ↩

6. 5.

   Assembly of States Parties, Proposal Submitted by Vanuatu to Amend the Rome Statute, ICC-ASP/23/26 at Annex II (Dec. 1, 2024), available online. ↩

7. 6.

   Daniel Bertram, Should Ecocide be an International Crime? It’s Time for States to Decide, EJIL Talk (Sep. 12, 2024), available online. ↩

8. 7.

   Rebecca Hamilton, Why Criminalize Ecocide? Experts Weigh In, Just Security (Sep. 23, 2024), available online; Daniel Bertram, quoted in Hamilton, supra note 7. ↩

9. 8.

   Richard A. Falk, Environmental Warfare and Ecocide—Facts, Appraisal, and Proposals, 4 Bull. of Peace Proposals 80 (Mar. 1973), paywall, doi. ↩

10. 9.

    Rachel Killean, Ecocide’s Evolving Relationship with War, EAS 1, 3–4 (2025), available online, doi; Falk, supra note 8. ↩

11. 10.

    Matina Papadaki & Stavros Evdokimos Pantazopoulos, Capturing Tensions: Defining Ecocide at the Crossroads of Legal Orders, paper presented at the 2024 ESIL Research Fora, Revisiting Interactions between Legal Orders, University of Cyprus, Nicosia, Apr. 18–19, 2024, program available online. ↩

12. 11.

    Killean, supra note 9, at 1–3. ↩

13. 12.

    Bertram, supra note 6. ↩

14. 13.

    IEP Definition, supra note 2. ↩

15. 14.

    Jérôme de Hemptinne, Ecocide: an Ambiguous Crime?, EJIL Talk (Aug. 29, 2022), available online. ↩

16. 15.

    Voigt, supra note 3. ↩

17. 16.

    Robinson, supra note 3, at 314–16, 329–45. ↩

18. 17.

    Burgers et al., supra note 4, at 7–8. ↩

19. 18.

    Papadaki & Pantazopoulos, supra note 10, at 4–5. ↩

20. 19.

    Burgers et al., supra note 4, at 7–8. ↩

21. 20.

    Killean & Short, supra note 4, at 2–4, 15–16. ↩

22. 21.

    Danuta Palarczyk, Ecocide Before the International Criminal Court: Simplicity Is Better Than an Elaborate Embellishment, 34 Crim. L. Forum 147, 149–51 (Feb. 20, 2023), available online. ↩

23. 22.

    See Matthew Gillett, Ecocide, Environmental Harm and Framework Integration at the International Criminal Court, 29 Int’l J. of Hum. Rts. 1009 (2024), available online, doi at https://doi.org/10.1080/13642987.2024.2433660. ↩

24. 23.

    Rachel Killean, Legal Accountability for Environmental Destruction in Ukraine, CEOBS (Mar. 7, 2022), available online; Stavros Evdokimos Pantazopoulos, Reflections on the Destruction of the Nova Kakhovka Dam from an International Law Perspective, Policy Paper No. 140/2023, ELIAMEP 1, 8–11 (Jun. 29, 2023), available online. ↩

25. 24.

    Pantazopoulos, supra note 23, at 8–11. ↩

26. 25.

    Killean, supra note 9. ↩

27. 26.

    Killean & Short, supra note 4, at 15–16. ↩

28. 27.

    Bertram, supra note 6; Killean, supra note 9, at 15–18. ↩

29. 28.

    See Bertram, supra note 7. ↩

30. Suggested Citation for this Comment:

    Stavros Evdokimos Pantazopoulos, Ecocide’s Promise Depends on Clarifying Its Normative Foundations Across International Humanitarian, Criminal, and Environmental Law, ICC Forum (May 20, 2026), available at https://iccforum.com/ecocide#Pantazopoulos.

    Suggested Citation for this Issue Generally:

    Should the Crime of “Ecocide” Be Added to The Rome Statute?, ICC Forum (May 20, 2026), available at https://iccforum.com/ecocide.