As climate change accelerates and ecosystems face unprecedented destruction, existing legal frameworks have proven inadequate to prevent or meaningfully deter large-scale environmental harm. Corporations, especially transnational corporations operating across jurisdictions, play a central role in driving deforestation, pollution, biodiversity loss, and greenhouse gas emissions, often with little fear of accountability. While regulatory regimes and civil liability mechanisms have expanded, they have largely failed to constrain corporate decision-making where environmental harm is profitable, foreseeable, and externalized. Against this backdrop, a growing international movement has emerged to recognize ecocide as an international crime, elevating severe environmental destruction to the same normative field as genocide, crimes against humanity, war crimes, and crimes of aggression.
In September 2024, Vanuatu, Samoa and Fiji formally proposed amending the
Rome Statute of the International Criminal Court
(ICC) to include ecocide as its fifth core crime. Proponents argue that criminalizing ecocide at the international level would close accountability gaps, deter catastrophic environmental harm, and transform corporate risk calculations by exposing senior decision-makers to personal criminal liability. In theory, the threat of international prosecution could force corporations to internalize environmental costs that have long been treated as collateral damage. Whether this ambition can be realized in practice remains deeply contested.
This comment asks a narrow, but critical question: will criminalizing ecocide under the
Rome Statute
actually make corporations more environmentally responsible? While the expressive and symbolic appeal of ecocide is compelling, its effectiveness depends on the
ICC’s
ability to detect, prosecute, and convict those most responsible for corporate environmental harm. The
Rome Statute’s exclusive focus on individual criminal liability, combined with the complex, decentralized nature of corporate governance, raises serious doubts about whether senior corporate actors can realistically be held accountable under existing modes of liability. Attribution problems, evidentiary hurdles, and demanding
mens rea
requirements all threaten to undermine ecocide’s deterrent force when applied to corporate conduct.
This comment proceeds in seven parts.
Part I
traces the historical development of ecocide, its proposed legal definition, and surveys its growing adoption at the national level.
Part II
examines how ecocide would fit within the
Rome Statute’s
jurisdictional framework.
Part III
explores the theoretical goals of criminalizing ecocide, specifically its deterrent and expressive functions.
Part IV
situates corporate environmental harm as a central driver of ecological destruction.
Parts V
and
VI
analyze the practical and doctrinal obstacles to building a case of ecocide against corporate leaders. Finally,
Part VII
explores whether extending entity liability to corporations themselves would better serve ecocide’s underlying aims. Ultimately, this comment argues that while criminalizing ecocide under the
Rome Statute
carries significant expressive value, its capacity to meaningfully change corporate behavior is likely to be limited unless international criminal law confronts the structural realities of corporate power and responsibility.
The term “ecocide” was used as early as 1970 at the Conference on War and National Responsibility in Washington.1
In 1972, speaking at the United Nations (U.N.) Stockholm Conference on the Human Environment, the Prime Minister of Sweden explicitly named the Vietnam War an “ecocide” after Agent Orange, a chemical designed to defoliate trees and destroy crops, was sprayed over Vietnam’s forests as part of a military operation.2
Agent Orange stripped bare around 20% of the country’s tropical forests.3
Many never recovered.4
Perhaps for the first time, the
U.N.
Stockholm Conference brought international attention on environmental issues, particularly to environmental degradation and transboundary pollution.5
A Convention on Ecocidal War took place the following year.6
At this convention, an ecocide treaty was proposed by Richard Falk to recognize “that man has consciously and unconsciously inflicted irreparable damage to the environment in times of war and peace.”7
Falk then drafted the
International Convention on the Crime of Ecocide, which focused primarily on ecocide as a war crime.8
Over time, a growing number of academics and legal scholars began to advocate for the criminalization of ecocide as a “Crime Against Peace.” In the 1970s, the Sub-Commission on Prevention of Discrimination and Protection of Minorities proposed the criminalization of ecocide and cultural genocide under the
Genocide Convention.9
Notably, ecocide as a Crime Against Peace was also considered in the drafting of the
Code of Crimes Against the Peace and Security of Mankind, developed by the International Law Commission (ILC).10
Ultimately, a separate crime of ecocide was unilaterally removed by the
ILC’s
then-Chairman, leaving the
ILC
to decide only whether or not to include environmental damage in the context of war crimes.11
It is this
ILC
drafting committee that directly led to the drafting of the
Rome Statute.12
Therefore, the crime of ecocide was excluded from the
Rome Statute.13
The United States, the United Kingdom, and the Netherlands were the only recorded countries who officially opposed the inclusion of ecocide in the
Rome Statute.14
Although the exact reason for their opposition is unclear, some scholars surmised that “nuclear arms played a decisive role.”15
The
Rome Statute
is the foundational treaty that created the
ICC.16
It conferred subject matter jurisdiction to the
ICC
over “the most serious crimes of international concern”: genocide, crimes against humanity, war crimes, crimes of aggression.17
It currently does not include a crime of ecocide. The
Rome Statute
does, however, confer environmental protections in the context of war crimes: “widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.”18
B.
Ecocide Definition
For the purposes of this comment, we use the legal definition of “ecocide” being advanced by the Independent Expert Panel (IEP) convened by Stop Ecocide International.19
Ecocide is defined as unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.20
This definition creates two thresholds for prohibited conduct. First, the act or omission causes, by a substantial likelihood, severe and either widespread or long-term damage to the environment. Second, the act or omission must be unlawful or wanton.
Ecocide creates criminal liability for severe damage with a long-term or widespread impact. Severe damage:
[I]nvolves very serious adverse changes, disruption or harm to any element of the environment, including grave impacts on human life or natural, cultural or economic resources.21
In addition to being severe, the action must also be either widespread or long-term. The impact of the damage must be extended geographically or temporally. Widespread damage:
[E]xtends beyond a limited geographic area, crosses state boundaries, or is suffered by an entire ecosystem or species or many human beings.22
This ensures that ecocide is criminalizing actions that cause transboundary effects, in line with the nature of the environment to transcend arbitrary human borders. Ecocide also criminalizes severe damage that is long-term, meaning “damage which is irreversible or which cannot be redressed through natural recovery within a reasonable time.”23
The international criminal community has an interest in criminalizing actions that cause environmental damage for future generations or for the foreseeable future. Environmental damage does not respect national borders, nor are its effects temporally limited to the present. The effects of environmental degradation ripple into the global environment and into future generations.
In addition to the severity and temporal or reach requirement, the act or omission must be unlawful or wanton. Unlawful means the action is already prohibited by law. The illegality of an action under both international and national law may be considered.24
Even for actions considered legal, wanton actions would be criminalized under ecocide law. Wanton incorporates a balancing test, as it’s a “reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated.”25
This requirement ensures that social benefits are considered when evaluating extent of the damage caused. It recognizes that as human beings who live off the Earth, some damage and degradation is expected and tolerated.
C.
Ecocide in National Jurisdictions
On the domestic level, more countries are considering criminalizing ecocide, or environmental harms of a similar scale. Currently, twelve countries26
criminalize ecocide or comparable environmental harm. France passed a law that criminalized “serious and lasting damage to the health, flora, fauna, or the quality of air, soil, or water.”27
Belgium explicitly defined and criminalized ecocide, with a maximum prison sentence of twenty years.28
Many other countries are advancing similar legislation and the European Union revised its Environmental Crime Directive to include offenses “comparable to ecocide.”29
Additionally, the Council of Europe adopted a convention30
that enabled prosecution of environmental destruction “tantamount to ecocide.”31
While national prosecution under ecocide law is limited, some countries have taken steps in building cases. In Ukraine, the Specialised Environmental Prosecutor’s Office of the Kharkiv Regional Prosecutor’s Office is conducting a pre-trial investigation into high-ranking Russian commanders’ responsibility for the destruction of a dam in the Kharkiv region.32
The destruction of the dam caused uncontrolled water release, damaging the environment and threatening communities located downstream:
The destruction of the Oskil Dam is not just an attack on infrastructure—it’s an attack on entire ecosystems. Holding those responsible for ecocide is essential, not only for justice but to send a clear message: deliberate environmental destruction in war will not go unpunished.33
In France, in what is being called “the
EU’s
first ‘ecocide’ trial,” a criminal investigation was launched after a carcinogenic chemical, over eight hundred times the legal limit, was detected in a resident’s backyard.34
There is a clear growing trend to both criminalize and prosecute ecocide.
II.
Ecocide Under the
Rome Statute
In September 2024, Vanuatu, Samoa and Fiji proposed the amendment of the
Rome Statute
to criminalize ecocide as the court’s fifth core international crime.35
Criminalizing ecocide under the
Rome Statute
would broaden the
ICC’s
protection of the natural environment to include actions taken during peacetime. Ecocide fits within
Article 5’s
definition of “the most serious crimes of concern to the international community as a whole.” The addition of ecocide to the
Rome Statute
would allow for direct prosecution for applicable actions, rather than relying on war crimes as a proxy.
A.
The
ICC’s
Jurisdiction
The jurisdiction of the
ICC
is governed primarily by
Article 12
of the
Rome Statute. The Court may exercise jurisdiction where the conduct in question occurred on the territory of a State Party to the
Statute,36
or on board a vessel or aircraft registered to a State Party, regardless of the nationality of the alleged perpetrator.37
The
ICC’s
jurisdiction reaches to a non-State party if that non-State Party accepts jurisdiction by an
ad hoc
declaration, thereby treating its territory as if it were party territory for the referred situation.38
The United Nations Security Council, acting under Chapter VII of the Charter of the United Nations, may also refer situations, in the territories of both States Parties and non-States Parties, to the
ICC
Prosecutor.39
The
ICC’s
jurisdiction is limited to natural persons.40
For corporations, this means that they escape entity liability. Instead, by attributing the actions of the corporation onto individuals, corporate leaders may face personal criminal liability. The attribution can come from a theory of indirect perpetration, where a corporate leader may be liable for committing a crime “jointly with another or through another person, regardless of whether that other person is criminally liable.”41
A corporate leader may also face criminal liability for aiding and abetting, or otherwise assisting in the commission of a crime.42
For this mode of liability, there must be a showing of the requisite mental conduct, which is “for the purpose of facilitating the commission of such a crime.”43
Additionally, a corporate leader may face criminal liability under a theory of superior responsibility.44
For a finding of superior responsibility, the law requires that the superior either:
knew, or consciously disregarded information which indicated that the subordinates were committing or about to commit such crimes;45
the activities concerned were within the effective responsibility and control of the superior;46
and
the superior failed to take all necessary and reasonable measures within their power to prevent or repress the actions.47
The application of the theories of individual liability in a corporate context will be further analyzed in
Part V.
III.
Goals of the Criminalization of Ecocide Under the
Rome Statute
A.
Deterrence
The criminalization of ecocide under the
Rome Statute
may have a deterrence effect on actions that lead to grave environmental damage. There are two types of deterrence: specific and general. Specific deterrence refers to the extent to which an individual is deterred from subsequent criminal actions after facing criminal punishment themselves. General deterrence refers to spillover effect: the extent to which other individuals are deterred after the criminal punishment of other individuals. The goal is that the criminalization of ecocide under the
Rome Statute
will lead to both specific and general deterrence by filling the accountability gaps and establishing a much stronger deterrent against major environmental harms. From a corporation ecocide context, Jojo Mehta48
contends that criminalization will be a stronger deterrent than regulatory law, which corporations can navigate or manipulate:
Criminal law forces decision-makers to ask, before signing off on a major project: is this going to create severe harm? And if so, could I be personally criminally liable? That question is a powerful deterrent. It prompts executives to seek alternative approaches or establish clear operational boundaries. Additionally, the accusation of criminal behavior can damage both a leader’s personal reputation and the company’s value. Stock prices can fall immediately. There is a rational deterrence provided by the criminal aspect that simply does not exist in the regulatory sphere.49
The hope is that the threat of significant criminal sanctions will act as a preventative force in corporate decision-making when considering decisions that cause environmental degradation.50
Ecocide laws preemptively force businesses to consider not only human costs, but environmental costs in their decisions.51
The criminalization of ecocide disrupts the corporate “profit-at-all-costs” business strategy by adding environmental costs to the risk calculus, lest they face personal criminal liability.52
The goal is for corporations to consider the environment to reduce the need for prosecutions of ecocide. “In an ideal world, it should not be about the corporate polluter who must pay when or if he is caught, but about the corporation which does not pollute.”53
Theoretically, the criminal prosecution of a corporate individual will also impact the risk calculus of similar business decisions by other corporate actors.54
While the deterrence effect from the criminalization of ecocide is limited, empirical studies on the deterrence effect of environmental regulations offer us some perspective. A study found that environmental monitoring and enforcement activities can produce substantial specific and general deterrence. Following regulator actions, targeted facilities have increased compliance and reduced emissions for several periods.55
The study found that the deterrence spilled over to nearby facilities as well, which increased compliance in response, though the effect was limited to facilities within the same state boundaries as the targeted facility.56
In some cases, enforcement actions even resulted in increased over-compliance, including from previously noncompliant plants.57
If a fine was given to one plant, the impact of it was magnified as it strengthened other plants’ beliefs about the regulators toughness.58
In the year following a fine, there was a two-thirds reduction in the statewide water pollution violation rate, and nearly all of the deterrence was attributable to general deterrence.59
B.
Expressive
Criminalizing ecocide under the
Rome Statute
would also serve expressive functions that go beyond instrumental deterrence by articulating and entrenching a global moral boundary against severe environmental destruction as a matter of international concern. Ecocide would communicate that catastrophic ecological harm constitutes a wrong of the same normative gravity as other core international crimes, thereby recognizing the intrinsic value of the environment and the interdependence of humans and the environment, rather than treating nature as a mere object of property or economic value.60
At the international level, an ecocide amendment would also clarify community membership and obligation. It would mark the protection of the environment as a core commitment of the international community. The hope is that ecocide will not only create legal protections for the environment but also change the global consciousness about what is acceptable practice in the destruction of the environment.61
IV.
Corporation’s Environmental Harm
There is no doubt that corporations contribute significantly to environmental degradation. Corporations generate a substantial portion of the world’s greenhouse gas emissions, deforestation, pollution, biodiversity loss, and ecosystem collapse. Corporate by-products contribute to water pollution.62
The timber, paper, and pulp industries are linked to deforestation, which can lead to species extinctions.63
Leaks and wastes from oil companies have caused land depletion so severe that agriculture, forestry, and fishing is no longer possible in huge areas.64
The Carbon Majors database traced the cumulative historical greenhouse gas emissions from 1854 through 2022. The 2024 Carbon Majors Report found that, historically, just seventy-eight corporate and state producing entities are responsible for over 70% of these global carbon dioxide emissions.65
The report found that investor-owned companies were responsible for 31% of all emissions tracked by the database, with Chevron, ExxonMobil, and
BP, respectively, being the three largest contributors.66
The damage is not limited to just the environment. This environmental damage also puts human lives at risk. Destruction to the environment has the capacity to decrease the human rights of entire communities. For example, the discovery of valuable natural resources can lead to exploitation of land and labor in the area, leading to destabilization, financial turmoil, violence, and repression.67
Corporations may be involved directly in exploitation, indirectly through financial investments that support violent, oppressive regimes, or by hiring security forces that commit heinous crimes against the local population.68
This damage is not merely incidental. It is the direct consequence of decisions made by the boards, executives, and shareholders of corporations. Corporations make decisions, knowing the potentially catastrophic effects those decisions may have on the environment. Exxon’s internal documents prove one example. As early as 1977, Exxon internal documents revealed that scientists had warned Exxon leaders about the global warming effect of increased carbon dioxide in the atmosphere.69
Scientists warned that “some countries would benefit but others would have their agricultural output reduced or destroyed.”70
By 1982, Exxon’s scientists confirmed emerging scientific consensus that the effects to the environment were “potentially catastrophic” and “[o]nce measurable […] might not be reversible.”71
Exxon’s response? Denial. Exxon helped to found the Global Climate Coalition: the world’s largest companies working together to stop governmental efforts to curb fossil fuel emissions.72
Exxon used right wing think tanks, campaign contributions, and its own lobbying, to push a narrative that the science on climate change was too uncertain to require cuts in emissions.73
They fueled climate change denial to continue their business at the expense of the environment.
V.
The Attribution Problem
While this comment advocates for the adoption of the crime of ecocide into the
Rome Statute,
the success of adding the crime of ecocide in changing corporate behavior is dependent on the probability of detection, prosecution, and conviction.74
This may prove to be challenging due to the difficulties in attributing corporate actions to an individual, or group of individuals because of the complex hierarchies of entities and the collective nature of corporate decisions.
A.
Attribution Under a Theory of Indirect Perpetration
A theory of indirect perpetration for individual criminal responsibility comes from
Article 25(3)(a)
of the
Rome Statute
which states that a person shall be criminally responsible and liable if that person “[c]omits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible.” In most corporate settings, it is not likely that the corporate leaders, the ones making the ultimate decisions, are also the ones committing the actions that lead to environmental damage (e.g. the corporate leaders are not the ones operating the factory that pollutes). For this reason, a theory of indirect perpetration is attractive for corporate leader liability, especially because leaders may still face liability for the actions of employees who do not face liability.
In
Katanga,75
the Court elaborated on the requirements for indirect perpetration, requiring that the organization possess very specific features for its leaders to be considered under this theory of liability. The Court held that for a finding under
Article 25(3)(a)
of the
Rome Statute, the superior need not exercise coercion or deception to dictate the actions of another, because the superior knows that “if a member of the organization refuses to comply, another will usually be available to step in and somehow ensure the execution of the orders issued.”76
In this way, the personal relationship between the superior and the executor are “inconsequential” because “the superior’s orders are automatically executed, at least on account of the interchangeability of the potential physical perpetrators.”77
Additionally, the superior must use at least part of their power to intentionally steer the organization towards the commission of a crime, “without leaving one of the subordinates at liberty to decide whether the crime is to be executed.”78
This mode of liability may, in theory, seem applicable for corporations. In corporations, the executor (be it a factory worker or a middle manager) may seem interchangeable to the corporate leaders. If an employee does not comply, corporations can hire someone else who will. However, indirect perpetration requires tightly controlled hierarchies, like the ones you find in military juntas but not necessarily at corporations. “[U]nlike military juntas which operate through
direction, corporations operate through
delegation.”79
Due to the fragmented hierarchies of corporations, it will be difficult to show that the highest decision-maker, someone important enough to the corporation to actually enact a change, specifically directed an act that caused environmental damage.
B.
Attribution Under a Theory of Aiding and Abetting
Under
Article 25(3)(c)
of the
Rome Statute, a person shall be criminally liable if that person “[f]or the purpose of facilitating the commission of such a crime, aids, abets, or otherwise assists in its commission or its attempted commission, including providing the means for its commission.”80
The Court requires the
actus reus, which can include providing “practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.”81
The greater problem is the “purpose” mens rea
requirement. In the context of ecocide, it will be challenging to establish that an executive facilitated a wanton act for the purpose of committing ecocide, as opposed to a disregard for the environmental damage that may accrue from a corporate action.82
C.
Attribution Under a Theory of Superior Responsibility
Article 28
of the
Rome Statute
offers two ways that a commander and other superiors may be criminally responsible for the actions of a subordinate.
Article 28(1)
provides that a:
[M]iliary commander or person effectively acting as a military commander shall be criminally responsible for crimes […] committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:
[t]hat military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and
[t]hat military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.83
Because this provision is for military commanders or those effectively acting as such, this provision is not applicable to corporations. However, this is the provision which the
ICC
Appeals Chamber evaluated in the
Bemba
case, analyzed below, and serves as a guide for evaluating
Article 28(2),
which uses similar language.
[W]ith respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes […] committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:
[t]he superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;
[t]he crimes concerned activities that were within the effective responsibility and control of the superior; and
[t]he superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.84
In
Bemba,85
the
ICC’s
Appeals Chamber overturned Mr. Bemba’s conviction, finding that the “all necessary and reasonable measures” requirement was not properly established.86
The duty to take all necessary and reasonable measures is:
[I]ntrinsically connected to the extent of a commander’s material ability […] Indeed, a commander cannot be blamed for not having done something he or she had no power to do.87
Commanders are not required to employ every conceivable measure, only what is necessary and reasonable.88
In assessing reasonableness, the Court is required to consider the operational realities on the ground, at the time faced by the commander.89
The Appeals Chamber held that this is not a strict liability requirement. Rather, commanders are permitted to make a cost/benefit analysis when deciding what measures to take, considering their responsibility to prevent and repress subordinates’ crimes.90
The Court is unconcerned with what the commander theoretically might have done.91
Instead, the Prosecution must show that:
[T]he commander did not take specific and concrete measures that were available to him or her and which a reasonably diligent commander in comparable circumstances would have taken.92
In assessing such reasonableness, the Appeals Chamber also found that the Trial Court paid insufficient attention to the fact that Bemba’s ability was constrained by the fact that he was a remote commander for troops operating in a foreign country.93
Applying the
Bemba
ruling to a corporate context, it appears that there will be considerable leeway given to corporate leaders. For transnational corporations, it is likely that the top executives, shareholders, or board members—those who ultimately set the corporation’s agenda and directives—are not residing within the same country where environmental exploitation is occurring. Instead, these top decision makers are likely to be remote and delegating the on-the-grounds operation to a middle manager. The remoteness is compounded by the collective decision-making process of corporations. Whereas militaries have structured, specified hierarchies, corporations often have delegated responsibilities and decisions are seldom made by an individual. This will make it hard to assess what was “reasonable and necessary” because there will be debate as to whose actions we are evaluating, or who bore such responsibility to begin with. Additionally, the cost/benefit analysis that is permitted may leave room for corporations to exploit the law and avoid responsibility. Corporations could hire selective experts to downplay the environmental harm that may result from a corporate plan. Corporations could implement greenwashing tactics to offset the cost/benefit analysis, while the actual environmental harm continues. Corporations could also intentionally diffuse information between top executives so that any one individual maintains plausible deniability.
VI.
Statutory Hurdles
A.
Actus Reus
The required
actus reus
under this definition of ecocide is that the corporate leader committed unlawful or wanton acts. Unlawful actions are unlikely to be attributed to corporations in this context, as corporations will at least try to adhere to the laws of the countries they are operating in.94
Additionally, the consideration of illegality under domestic laws leads to ambiguity and possible inconsistencies in regulating corporate action, as corporate leaders are managing multiple jurisdictions with conflicting legal frameworks on environmental issues.95
If an action was unlawful under a specific domestic law, national jurisdictions may be a more appropriate forum.
A showing that a corporate leader committed a wanton act of environmental damage faces challenges, specifically as wanton is defined as a “reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated.” The additional requirement of a “reckless disregard” may prove unworkable in practice, as ecocide does not remove corporate legal concepts like limited liability and separate legal personality.96
It is rare that one corporate individual has enough information about an environmental consequence to recklessly disregard it. The wanton action would have to be isolated from the corporation and attributable to a particular corporate leader.
Perhaps more significantly, the balancing test ingrained in determining “wanton acts” presents a hurdle in determining the social and economic benefits anticipated, as it is unclear how a company is expected to outline the full social impact of their decisions.97
This is challenging particularly in the context of corporations, that operate in the best interests of their shareholders, not society. Ideally, we want corporations to consider the social impacts of their businesses. However, this definition of ecocide would involve “a complete reconception of the purpose of a company and specifically the role its leaders play in making business decisions.”98
B.
Mens Rea
The
IEP
advances a narrower
mens rea
than the default
mens rea
provided in
Article 30
of the
Rome Statute.
Article 30
reads:
A person has intent where
[i]n relation to conduct, the person means to engage in the conduct and
[i]n relation to the consequences, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.99
Most decisions and commentators have interpreted this to require an awareness that the consequences are of a near certainty.100
The default
mens rea
is applicable “unless otherwise provided,”101
carving out a possibility of requiring a less stringent
mens rea.
The
IEP
proposed a less stringent
mens rea
of recklessness or
dolus eventualis, requiring awareness of a substantial likelihood of severe and either widespread or long-term damage.102
The
IEP
felt that the default
mens rea
would be too narrow and exclude actions that have a high likelihood of the requisite damage to the environment. Indeed, ecocide is often the result of reckless actions taken to further their goals, as opposed to a deliberate targeted environmental destruction.103
Instead, a
mens rea
of recklessness is “sufficiently onerous to ensure that only those persons with significant culpability for grave damage to the environment will be held responsible.”104
But again, while a corporation, like Exxon in the aforementioned illustration, may collectively have requisite
mens rea, a corporate individual will have to be singled out, with that same recklessness being attributed to an individual. But who? The
CEO? The manager of a polluting factory? The shareholders prioritizing profits above all else? It will be evidentiarily challenging to sort through the corporation enough to pin the liability on a single person.
VII.
Would Entity Liability Help?
Some argue that the lack of corporate criminal responsibility as an entity is a hindrance towards the criminalization of ecocide being effective in the fight against corporate environmental degradation:
By focusing on and indicting individuals within a corporation, the true nature of corporate participation in international criminalities, such as ecocide, is not effectively captured, nor is the organizational wrongdoing effectively addressed.105
Instead, the blame may be deflected to lower-level staff.106
A lower-level employee may become a scapegoat, pleading guilty and serving a term of imprisonment, only to be re-hired or rewarded by the corporation or industry.107
Then, there is no guarantee that corporate policy or culture will change moving forward and the organizational wrongdoing is not effectively addressed.108
Would amending the
Rome Statute
to allow legal persons to face criminal liability increase the efficiency of the criminalization of ecocide influencing corporate behavior?
Corporate criminal responsibility is not a novel concept within international criminal law. Criminal liability for juridical persons, not just natural persons, was considered and rejected for various reasons in original conversations that lead to the
Rome Statute’s
inception.109
The original focus of the
Rome Statute
was to hold natural persons responsible for atrocity crimes.110
Due to a lack, at the time, of national jurisdictions holding corporations liable under criminal law, there were concerns that holding juridical persons liable under the
Rome Statute
would impede complementarity.111
Additionally, criminal liability for juridical persons would add to many governments’ hesitations in ratifying the
Rome Statute
because of the novelty of the concept and fear of consequences from multinational corporations, such as deterring economic investments in that country from those corporations.112
However, there are no conceptual barriers for holding juridical persons criminally liable under international agreements. Corporations, as legal persons, face criminal liability under numerous international criminal laws.113
The Special Tribunal for Lebanon held three
TV
stations in contempt for revealing the confidential names of witnesses, showing that legal persons can be subject to liability under international criminal law.114
The Tribunal justified their ruling by pointing to Lebanese law and “[a] general trend in most countries towards bringing corporate entities to book for their criminal acts or the criminal acts of their officers.”115
Most significantly, the Malabo Protocol explicitly provides for jurisdiction over legal persons: “For the purpose of this Statute, the Court shall have jurisdiction over legal persons, with the exception of States.”116
There are mixed conclusions on whether corporations should face criminal liability. One author argues that, due to the organizational complexity of corporations, prosecutions should focus on the corporation instead of the individual.117
Corporations are made up of a collection of individuals and their actions. Responsibilities are delegated, and orders are not necessarily directed outright. This structure also obscures fault but is the very justification for corporate prosecution “when the corporate form makes it difficult to establish culpability on the part of any particular individual.”118
Ultimately, corporations are benefitting from the collective action of individuals, so the action cannot be separated from the institutional framework in which it occurred.119
Corporations are also better positioned to pay restitution to the victims.120
Through the threat of entity liability, individual accountability could be enhanced and, especially in the context of ecocide, it is a worthy conversation to keep having.121
Conclusion
The proposal to criminalize ecocide under the
Rome Statute
reflects an urgent and morally compelling response to the scale of environmental destruction facing the planet. By recognizing severe and widespread or long-term ecological harm as a core international crime, the international community would articulate a powerful normative judgment: that the deliberate or reckless devastation of the natural world is an offense against humanity itself. As an expressive act, ecocide law has the potential to reshape the global consciousness, elevate environmental protection to a matter of international concern, and signal that catastrophic environmental harm will no longer be treated as a mere regulatory failure.
However, the promise of ecocide as a tool for transforming corporate behavior should not be overstated. This comment has shown that the effectiveness of criminalization under the
Rome Statute
depends on the realistic prospect of enforcement, rather than symbolic condemnation alone. The
ICC’s
exclusive jurisdiction over natural persons, combined with the diffuse and hierarchical nature of corporate decision-making, creates formidable attribution problems. Existing modes of liability (indirect perpetration, aiding and abetting, and superior responsibility) were developed primarily in military and atrocity contexts and fit uneasily within corporate structures characterized by delegation, collective decision-making, and strategic information diffusion. The demanding
actus reus
and
mens rea
requirements of the proposed ecocide definition further narrow the pool of prosecutable conduct, particularly where environmental harm arises from profit-driven recklessness, rather than overt intent.
As a result, the individuals most responsible for corporate environmental destruction may remain insulated from criminal liability. In this sense, criminalizing ecocide under the
Rome Statute
may struggle to deliver the deterrent effect its proponents envision. Without a credible threat of prosecution against those who control corporate strategy, and those who reap its benefits, the rational cost-benefit calculus of corporate decision-making is unlikely to shift in any fundamental way.
This does not mean that the ecocide project is misguided. Rather, it suggests that criminalization under the
Rome Statute
should be understood as a necessary but insufficient step toward corporate environmental accountability. If the international community is serious about curbing corporate-driven ecological destruction, it must confront the structural limitations of individual liability and consider complementary reforms, including the recognition of corporate entity liability or stronger integration with domestic enforcement mechanisms. Absent such reforms, ecocide risks becoming a power symbol with limited practical reach—an important moral statement but one that falls short of making corporations meaningfully more eco-friendly.
Endnotes
— (click the footnote reference number, or ↩ symbol, to return to location in text).
Anja Gauger,
Mai Pouye Rabatel-Fernel,
Louise Kulbicki,
Damien Short
& Polly Higgins,
Hum. Rts. Consortium,
Ecocide is the Missing 5th Crime Against Peace
4 (Jun. 2013),
available
online.
↩
Milena Sterio,
Crimes Against the Environment, Ecocide, and the International Criminal Court,
56
Case W. Res. J. Int’l L.
223, 225 (2024),
available
online.
↩
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.
↩
Stop Ecocide Foundation,
Independent Expert Panel for the Legal Definition of Ecocide: Commentary and Core Text
(Jun. 2021)
[hereinafter
Core Text],
available
online.
↩
Nathalie Colin,
Silvia Van Dyck
& Maximilien Arnoldy,
Ecocide Out of the Woods: Update from Europe and Beyond,
Freshfields
(Jun. 25, 2024),
available
online.
↩
Council of Europe Convention on the Protection of the Environment through Criminal Law
(adopted
May 14, 2025,
opened for signature
Dec. 3, 2025),
available
online.
(The Council of Europe represents forty-six member states. The treaty is now open for signature).
↩
Jojo Mehta,
Criminalizing Ecocide: A Conversation with Stop Ecocide International’s
CEO
Jojo Mehta,
Geo. J. Int’l Aff.
(Dec. 4, 2025),
available
online.
↩
Ethan A. Heller,
Unleashing Ecocide: Conscripting International Prosecutors into the Fight Against Climate Change,
35
Geo. Envtl. L. Rev.
89, 101 (2022),
available
online.
↩
Wayne B. Gray
& Jay P. Shimshack,
The Effectiveness of Environmental Monitoring and Enforcement: A Review of the Empirical Evidence,
5
REEP
1, 28 (2011),
paywall,
doi.
↩
Veronica Threadgill,
Gaping Hole: Darning International Corporate Liability for Environmental Disasters and Human Rights,
4
ONE J
803, 804 (Mar. 2019),
available
online.
↩
Neela Banerjee,
Lisa Song
& David Hasemyer,
Exxon’s Own Research Confirmed Fossil Fuels’ Role in Global Warming Decades Ago,
Inside Climate News,
Sep. 16, 2025,
available
online.
↩
Michael G. Faure
& Katarina Svatikova,
Criminal or Administrative Law to Protect the Environment? Evidence from Western Europe,
24
JEL
253, 285 (Jul. 2012),
paywall,
doi.
↩
Lakshita Magar
& Nikhil Verma,
Closing the Accountability Gap: Corporate Ecocide and the Imperative for International Legal Reform,
Virtuosity Legal
(May 31, 2025),
available
online.
↩
The Prosecutor v. Jean-Pierre Bemba Gombo,
ICC-01/05-01/08 A, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute” (ICC
AC,
Jun. 8, 2018),
available
online,
archived.
↩
Cansu Atılgan Pazvantoğlu,
Ecocide as a Separate Crime Under the
Rome Statute: A Legal Analysis of the Discourse,
55
EPL
57 (May 2025),
available
online,
doi.
↩
See
Convention on Combating Bribery of Foreign Public Officials in International Business Transactions,
art. 2 (adopted
Nov. 21, 1997,
entered into force
Feb. 15, 1999),
OECD,
available
online;
United Nations Convention Against Corruption,
2349
U.N.T.S.
41 at art. 26 (adopted
Oct. 31, 2003,
entered into force
Dec. 14, 2005),
available
online;
United Nations Convention Against Transnational Organized Crime,
2225
U.N.T.S.
209 at art. 12 (adopted
Nov. 15, 2000,
entered into force
Sep. 29, 2003),
available
online.
↩
Case against New
TV
S.A.L. and Karma Mohamed Thasin Al Khayat,
STL-14-05/I/CJ, Decision in Proceedings for Contempt with Orders in Lieu of an Indictment
(STL
Contempt Judge,
Jan. 31, 2014),
archived.
↩
Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights,
Art. 46C(1) (2014)
[hereinafter
Malabo Protocol],
available
online.
↩
park2026:
Criminalizing Ecocide: Will Corporations Change?
Introduction
As climate change accelerates and ecosystems face unprecedented destruction, existing legal frameworks have proven inadequate to prevent or meaningfully deter large-scale environmental harm. Corporations, especially transnational corporations operating across jurisdictions, play a central role in driving deforestation, pollution, biodiversity loss, and greenhouse gas emissions, often...(more)
Wangu Gatonye:
I.
Introduction
“Ecocide” was coined in the 1970s through a proposal by Professor Arthur W. Galston, but has only recently gained popularity in legal circles.1
The proposed definition is: “[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.”2
The work that the diverse Independent...(more)
Talia Boyadjian:
Why the
IEPs
Draft Definition of Ecocide Cannot Work as a Core Crime
The concept of
ecocide
has circulated long before current efforts to amend the
Rome Statute,
with domestic and international circles debating it as a proposed legal tool to address human-caused extreme environmental destruction.1
Early formulations data back to the Vietnam War in response to large-scale wartime...(more)
Comment on the Ecocide Question: “Should the crime of “ecocide” be added to the Rome Statute?”
Criminalizing Ecocide: Will Corporations Change?
Introduction
As climate change accelerates and ecosystems face unprecedented destruction, existing legal frameworks have proven inadequate to prevent or meaningfully deter large-scale environmental harm. Corporations, especially transnational corporations operating across jurisdictions, play a central role in driving deforestation, pollution, biodiversity loss, and greenhouse gas emissions, often with little fear of accountability. While regulatory regimes and civil liability mechanisms have expanded, they have largely failed to constrain corporate decision-making where environmental harm is profitable, foreseeable, and externalized. Against this backdrop, a growing international movement has emerged to recognize ecocide as an international crime, elevating severe environmental destruction to the same normative field as genocide, crimes against humanity, war crimes, and crimes of aggression.
In September 2024, Vanuatu, Samoa and Fiji formally proposed amending the Rome Statute of the International Criminal Court (ICC) to include ecocide as its fifth core crime. Proponents argue that criminalizing ecocide at the international level would close accountability gaps, deter catastrophic environmental harm, and transform corporate risk calculations by exposing senior decision-makers to personal criminal liability. In theory, the threat of international prosecution could force corporations to internalize environmental costs that have long been treated as collateral damage. Whether this ambition can be realized in practice remains deeply contested.
This comment asks a narrow, but critical question: will criminalizing ecocide under the Rome Statute actually make corporations more environmentally responsible? While the expressive and symbolic appeal of ecocide is compelling, its effectiveness depends on the ICC’s ability to detect, prosecute, and convict those most responsible for corporate environmental harm. The Rome Statute’s exclusive focus on individual criminal liability, combined with the complex, decentralized nature of corporate governance, raises serious doubts about whether senior corporate actors can realistically be held accountable under existing modes of liability. Attribution problems, evidentiary hurdles, and demanding mens rea requirements all threaten to undermine ecocide’s deterrent force when applied to corporate conduct.
This comment proceeds in seven parts. Part I traces the historical development of ecocide, its proposed legal definition, and surveys its growing adoption at the national level. Part II examines how ecocide would fit within the Rome Statute’s jurisdictional framework. Part III explores the theoretical goals of criminalizing ecocide, specifically its deterrent and expressive functions. Part IV situates corporate environmental harm as a central driver of ecological destruction. Parts V and VI analyze the practical and doctrinal obstacles to building a case of ecocide against corporate leaders. Finally, Part VII explores whether extending entity liability to corporations themselves would better serve ecocide’s underlying aims. Ultimately, this comment argues that while criminalizing ecocide under the Rome Statute carries significant expressive value, its capacity to meaningfully change corporate behavior is likely to be limited unless international criminal law confronts the structural realities of corporate power and responsibility.
I. What is Ecocide?
A. History of Ecocide
The term “ecocide” was used as early as 1970 at the Conference on War and National Responsibility in Washington.1 In 1972, speaking at the United Nations (U.N.) Stockholm Conference on the Human Environment, the Prime Minister of Sweden explicitly named the Vietnam War an “ecocide” after Agent Orange, a chemical designed to defoliate trees and destroy crops, was sprayed over Vietnam’s forests as part of a military operation.2 Agent Orange stripped bare around 20% of the country’s tropical forests.3 Many never recovered.4 Perhaps for the first time, the U.N. Stockholm Conference brought international attention on environmental issues, particularly to environmental degradation and transboundary pollution.5 A Convention on Ecocidal War took place the following year.6 At this convention, an ecocide treaty was proposed by Richard Falk to recognize “that man has consciously and unconsciously inflicted irreparable damage to the environment in times of war and peace.”7 Falk then drafted the International Convention on the Crime of Ecocide, which focused primarily on ecocide as a war crime.8
Over time, a growing number of academics and legal scholars began to advocate for the criminalization of ecocide as a “Crime Against Peace.” In the 1970s, the Sub-Commission on Prevention of Discrimination and Protection of Minorities proposed the criminalization of ecocide and cultural genocide under the Genocide Convention.9 Notably, ecocide as a Crime Against Peace was also considered in the drafting of the Code of Crimes Against the Peace and Security of Mankind, developed by the International Law Commission (ILC).10 Ultimately, a separate crime of ecocide was unilaterally removed by the ILC’s then-Chairman, leaving the ILC to decide only whether or not to include environmental damage in the context of war crimes.11 It is this ILC drafting committee that directly led to the drafting of the Rome Statute.12 Therefore, the crime of ecocide was excluded from the Rome Statute.13 The United States, the United Kingdom, and the Netherlands were the only recorded countries who officially opposed the inclusion of ecocide in the Rome Statute.14 Although the exact reason for their opposition is unclear, some scholars surmised that “nuclear arms played a decisive role.”15
The Rome Statute is the foundational treaty that created the ICC.16 It conferred subject matter jurisdiction to the ICC over “the most serious crimes of international concern”: genocide, crimes against humanity, war crimes, crimes of aggression.17 It currently does not include a crime of ecocide. The Rome Statute does, however, confer environmental protections in the context of war crimes: “widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.”18
B. Ecocide Definition
For the purposes of this comment, we use the legal definition of “ecocide” being advanced by the Independent Expert Panel (IEP) convened by Stop Ecocide International.19 Ecocide is defined as unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.20 This definition creates two thresholds for prohibited conduct. First, the act or omission causes, by a substantial likelihood, severe and either widespread or long-term damage to the environment. Second, the act or omission must be unlawful or wanton.
Ecocide creates criminal liability for severe damage with a long-term or widespread impact. Severe damage:
In addition to being severe, the action must also be either widespread or long-term. The impact of the damage must be extended geographically or temporally. Widespread damage:
This ensures that ecocide is criminalizing actions that cause transboundary effects, in line with the nature of the environment to transcend arbitrary human borders. Ecocide also criminalizes severe damage that is long-term, meaning “damage which is irreversible or which cannot be redressed through natural recovery within a reasonable time.”23 The international criminal community has an interest in criminalizing actions that cause environmental damage for future generations or for the foreseeable future. Environmental damage does not respect national borders, nor are its effects temporally limited to the present. The effects of environmental degradation ripple into the global environment and into future generations.
In addition to the severity and temporal or reach requirement, the act or omission must be unlawful or wanton. Unlawful means the action is already prohibited by law. The illegality of an action under both international and national law may be considered.24 Even for actions considered legal, wanton actions would be criminalized under ecocide law. Wanton incorporates a balancing test, as it’s a “reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated.”25 This requirement ensures that social benefits are considered when evaluating extent of the damage caused. It recognizes that as human beings who live off the Earth, some damage and degradation is expected and tolerated.
C. Ecocide in National Jurisdictions
On the domestic level, more countries are considering criminalizing ecocide, or environmental harms of a similar scale. Currently, twelve countries26 criminalize ecocide or comparable environmental harm. France passed a law that criminalized “serious and lasting damage to the health, flora, fauna, or the quality of air, soil, or water.”27 Belgium explicitly defined and criminalized ecocide, with a maximum prison sentence of twenty years.28 Many other countries are advancing similar legislation and the European Union revised its Environmental Crime Directive to include offenses “comparable to ecocide.”29 Additionally, the Council of Europe adopted a convention30 that enabled prosecution of environmental destruction “tantamount to ecocide.”31
While national prosecution under ecocide law is limited, some countries have taken steps in building cases. In Ukraine, the Specialised Environmental Prosecutor’s Office of the Kharkiv Regional Prosecutor’s Office is conducting a pre-trial investigation into high-ranking Russian commanders’ responsibility for the destruction of a dam in the Kharkiv region.32 The destruction of the dam caused uncontrolled water release, damaging the environment and threatening communities located downstream:
In France, in what is being called “the EU’s first ‘ecocide’ trial,” a criminal investigation was launched after a carcinogenic chemical, over eight hundred times the legal limit, was detected in a resident’s backyard.34 There is a clear growing trend to both criminalize and prosecute ecocide.
II. Ecocide Under the Rome Statute
In September 2024, Vanuatu, Samoa and Fiji proposed the amendment of the Rome Statute to criminalize ecocide as the court’s fifth core international crime.35 Criminalizing ecocide under the Rome Statute would broaden the ICC’s protection of the natural environment to include actions taken during peacetime. Ecocide fits within Article 5’s definition of “the most serious crimes of concern to the international community as a whole.” The addition of ecocide to the Rome Statute would allow for direct prosecution for applicable actions, rather than relying on war crimes as a proxy.
A. The ICC’s Jurisdiction
The jurisdiction of the ICC is governed primarily by Article 12 of the Rome Statute. The Court may exercise jurisdiction where the conduct in question occurred on the territory of a State Party to the Statute,36 or on board a vessel or aircraft registered to a State Party, regardless of the nationality of the alleged perpetrator.37 The ICC’s jurisdiction reaches to a non-State party if that non-State Party accepts jurisdiction by an ad hoc declaration, thereby treating its territory as if it were party territory for the referred situation.38 The United Nations Security Council, acting under Chapter VII of the Charter of the United Nations, may also refer situations, in the territories of both States Parties and non-States Parties, to the ICC Prosecutor.39
The ICC’s jurisdiction is limited to natural persons.40 For corporations, this means that they escape entity liability. Instead, by attributing the actions of the corporation onto individuals, corporate leaders may face personal criminal liability. The attribution can come from a theory of indirect perpetration, where a corporate leader may be liable for committing a crime “jointly with another or through another person, regardless of whether that other person is criminally liable.”41 A corporate leader may also face criminal liability for aiding and abetting, or otherwise assisting in the commission of a crime.42 For this mode of liability, there must be a showing of the requisite mental conduct, which is “for the purpose of facilitating the commission of such a crime.”43 Additionally, a corporate leader may face criminal liability under a theory of superior responsibility.44 For a finding of superior responsibility, the law requires that the superior either:
knew, or consciously disregarded information which indicated that the subordinates were committing or about to commit such crimes;45
the activities concerned were within the effective responsibility and control of the superior;46 and
the superior failed to take all necessary and reasonable measures within their power to prevent or repress the actions.47
The application of the theories of individual liability in a corporate context will be further analyzed in Part V.
III. Goals of the Criminalization of Ecocide Under the Rome Statute
A. Deterrence
The criminalization of ecocide under the Rome Statute may have a deterrence effect on actions that lead to grave environmental damage. There are two types of deterrence: specific and general. Specific deterrence refers to the extent to which an individual is deterred from subsequent criminal actions after facing criminal punishment themselves. General deterrence refers to spillover effect: the extent to which other individuals are deterred after the criminal punishment of other individuals. The goal is that the criminalization of ecocide under the Rome Statute will lead to both specific and general deterrence by filling the accountability gaps and establishing a much stronger deterrent against major environmental harms. From a corporation ecocide context, Jojo Mehta48 contends that criminalization will be a stronger deterrent than regulatory law, which corporations can navigate or manipulate:
The hope is that the threat of significant criminal sanctions will act as a preventative force in corporate decision-making when considering decisions that cause environmental degradation.50 Ecocide laws preemptively force businesses to consider not only human costs, but environmental costs in their decisions.51 The criminalization of ecocide disrupts the corporate “profit-at-all-costs” business strategy by adding environmental costs to the risk calculus, lest they face personal criminal liability.52 The goal is for corporations to consider the environment to reduce the need for prosecutions of ecocide. “In an ideal world, it should not be about the corporate polluter who must pay when or if he is caught, but about the corporation which does not pollute.”53 Theoretically, the criminal prosecution of a corporate individual will also impact the risk calculus of similar business decisions by other corporate actors.54
While the deterrence effect from the criminalization of ecocide is limited, empirical studies on the deterrence effect of environmental regulations offer us some perspective. A study found that environmental monitoring and enforcement activities can produce substantial specific and general deterrence. Following regulator actions, targeted facilities have increased compliance and reduced emissions for several periods.55 The study found that the deterrence spilled over to nearby facilities as well, which increased compliance in response, though the effect was limited to facilities within the same state boundaries as the targeted facility.56 In some cases, enforcement actions even resulted in increased over-compliance, including from previously noncompliant plants.57 If a fine was given to one plant, the impact of it was magnified as it strengthened other plants’ beliefs about the regulators toughness.58 In the year following a fine, there was a two-thirds reduction in the statewide water pollution violation rate, and nearly all of the deterrence was attributable to general deterrence.59
B. Expressive
Criminalizing ecocide under the Rome Statute would also serve expressive functions that go beyond instrumental deterrence by articulating and entrenching a global moral boundary against severe environmental destruction as a matter of international concern. Ecocide would communicate that catastrophic ecological harm constitutes a wrong of the same normative gravity as other core international crimes, thereby recognizing the intrinsic value of the environment and the interdependence of humans and the environment, rather than treating nature as a mere object of property or economic value.60 At the international level, an ecocide amendment would also clarify community membership and obligation. It would mark the protection of the environment as a core commitment of the international community. The hope is that ecocide will not only create legal protections for the environment but also change the global consciousness about what is acceptable practice in the destruction of the environment.61
IV. Corporation’s Environmental Harm
There is no doubt that corporations contribute significantly to environmental degradation. Corporations generate a substantial portion of the world’s greenhouse gas emissions, deforestation, pollution, biodiversity loss, and ecosystem collapse. Corporate by-products contribute to water pollution.62 The timber, paper, and pulp industries are linked to deforestation, which can lead to species extinctions.63 Leaks and wastes from oil companies have caused land depletion so severe that agriculture, forestry, and fishing is no longer possible in huge areas.64 The Carbon Majors database traced the cumulative historical greenhouse gas emissions from 1854 through 2022. The 2024 Carbon Majors Report found that, historically, just seventy-eight corporate and state producing entities are responsible for over 70% of these global carbon dioxide emissions.65 The report found that investor-owned companies were responsible for 31% of all emissions tracked by the database, with Chevron, ExxonMobil, and BP, respectively, being the three largest contributors.66
The damage is not limited to just the environment. This environmental damage also puts human lives at risk. Destruction to the environment has the capacity to decrease the human rights of entire communities. For example, the discovery of valuable natural resources can lead to exploitation of land and labor in the area, leading to destabilization, financial turmoil, violence, and repression.67 Corporations may be involved directly in exploitation, indirectly through financial investments that support violent, oppressive regimes, or by hiring security forces that commit heinous crimes against the local population.68
This damage is not merely incidental. It is the direct consequence of decisions made by the boards, executives, and shareholders of corporations. Corporations make decisions, knowing the potentially catastrophic effects those decisions may have on the environment. Exxon’s internal documents prove one example. As early as 1977, Exxon internal documents revealed that scientists had warned Exxon leaders about the global warming effect of increased carbon dioxide in the atmosphere.69 Scientists warned that “some countries would benefit but others would have their agricultural output reduced or destroyed.”70 By 1982, Exxon’s scientists confirmed emerging scientific consensus that the effects to the environment were “potentially catastrophic” and “[o]nce measurable […] might not be reversible.”71 Exxon’s response? Denial. Exxon helped to found the Global Climate Coalition: the world’s largest companies working together to stop governmental efforts to curb fossil fuel emissions.72 Exxon used right wing think tanks, campaign contributions, and its own lobbying, to push a narrative that the science on climate change was too uncertain to require cuts in emissions.73 They fueled climate change denial to continue their business at the expense of the environment.
V. The Attribution Problem
While this comment advocates for the adoption of the crime of ecocide into the Rome Statute, the success of adding the crime of ecocide in changing corporate behavior is dependent on the probability of detection, prosecution, and conviction.74 This may prove to be challenging due to the difficulties in attributing corporate actions to an individual, or group of individuals because of the complex hierarchies of entities and the collective nature of corporate decisions.
A. Attribution Under a Theory of Indirect Perpetration
A theory of indirect perpetration for individual criminal responsibility comes from Article 25(3)(a) of the Rome Statute which states that a person shall be criminally responsible and liable if that person “[c]omits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible.” In most corporate settings, it is not likely that the corporate leaders, the ones making the ultimate decisions, are also the ones committing the actions that lead to environmental damage (e.g. the corporate leaders are not the ones operating the factory that pollutes). For this reason, a theory of indirect perpetration is attractive for corporate leader liability, especially because leaders may still face liability for the actions of employees who do not face liability.
In Katanga,75 the Court elaborated on the requirements for indirect perpetration, requiring that the organization possess very specific features for its leaders to be considered under this theory of liability. The Court held that for a finding under Article 25(3)(a) of the Rome Statute, the superior need not exercise coercion or deception to dictate the actions of another, because the superior knows that “if a member of the organization refuses to comply, another will usually be available to step in and somehow ensure the execution of the orders issued.”76 In this way, the personal relationship between the superior and the executor are “inconsequential” because “the superior’s orders are automatically executed, at least on account of the interchangeability of the potential physical perpetrators.”77 Additionally, the superior must use at least part of their power to intentionally steer the organization towards the commission of a crime, “without leaving one of the subordinates at liberty to decide whether the crime is to be executed.”78
This mode of liability may, in theory, seem applicable for corporations. In corporations, the executor (be it a factory worker or a middle manager) may seem interchangeable to the corporate leaders. If an employee does not comply, corporations can hire someone else who will. However, indirect perpetration requires tightly controlled hierarchies, like the ones you find in military juntas but not necessarily at corporations. “[U]nlike military juntas which operate through direction, corporations operate through delegation.”79 Due to the fragmented hierarchies of corporations, it will be difficult to show that the highest decision-maker, someone important enough to the corporation to actually enact a change, specifically directed an act that caused environmental damage.
B. Attribution Under a Theory of Aiding and Abetting
Under Article 25(3)(c) of the Rome Statute, a person shall be criminally liable if that person “[f]or the purpose of facilitating the commission of such a crime, aids, abets, or otherwise assists in its commission or its attempted commission, including providing the means for its commission.”80 The Court requires the actus reus, which can include providing “practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.”81 The greater problem is the “purpose” mens rea requirement. In the context of ecocide, it will be challenging to establish that an executive facilitated a wanton act for the purpose of committing ecocide, as opposed to a disregard for the environmental damage that may accrue from a corporate action.82
C. Attribution Under a Theory of Superior Responsibility
Article 28 of the Rome Statute offers two ways that a commander and other superiors may be criminally responsible for the actions of a subordinate. Article 28(1) provides that a:
Because this provision is for military commanders or those effectively acting as such, this provision is not applicable to corporations. However, this is the provision which the ICC Appeals Chamber evaluated in the Bemba case, analyzed below, and serves as a guide for evaluating Article 28(2), which uses similar language.
Article 28(2) provides that:
In Bemba,85 the ICC’s Appeals Chamber overturned Mr. Bemba’s conviction, finding that the “all necessary and reasonable measures” requirement was not properly established.86 The duty to take all necessary and reasonable measures is:
Commanders are not required to employ every conceivable measure, only what is necessary and reasonable.88 In assessing reasonableness, the Court is required to consider the operational realities on the ground, at the time faced by the commander.89 The Appeals Chamber held that this is not a strict liability requirement. Rather, commanders are permitted to make a cost/benefit analysis when deciding what measures to take, considering their responsibility to prevent and repress subordinates’ crimes.90 The Court is unconcerned with what the commander theoretically might have done.91 Instead, the Prosecution must show that:
In assessing such reasonableness, the Appeals Chamber also found that the Trial Court paid insufficient attention to the fact that Bemba’s ability was constrained by the fact that he was a remote commander for troops operating in a foreign country.93
Applying the Bemba ruling to a corporate context, it appears that there will be considerable leeway given to corporate leaders. For transnational corporations, it is likely that the top executives, shareholders, or board members—those who ultimately set the corporation’s agenda and directives—are not residing within the same country where environmental exploitation is occurring. Instead, these top decision makers are likely to be remote and delegating the on-the-grounds operation to a middle manager. The remoteness is compounded by the collective decision-making process of corporations. Whereas militaries have structured, specified hierarchies, corporations often have delegated responsibilities and decisions are seldom made by an individual. This will make it hard to assess what was “reasonable and necessary” because there will be debate as to whose actions we are evaluating, or who bore such responsibility to begin with. Additionally, the cost/benefit analysis that is permitted may leave room for corporations to exploit the law and avoid responsibility. Corporations could hire selective experts to downplay the environmental harm that may result from a corporate plan. Corporations could implement greenwashing tactics to offset the cost/benefit analysis, while the actual environmental harm continues. Corporations could also intentionally diffuse information between top executives so that any one individual maintains plausible deniability.
VI. Statutory Hurdles
A. Actus Reus
The required actus reus under this definition of ecocide is that the corporate leader committed unlawful or wanton acts. Unlawful actions are unlikely to be attributed to corporations in this context, as corporations will at least try to adhere to the laws of the countries they are operating in.94 Additionally, the consideration of illegality under domestic laws leads to ambiguity and possible inconsistencies in regulating corporate action, as corporate leaders are managing multiple jurisdictions with conflicting legal frameworks on environmental issues.95 If an action was unlawful under a specific domestic law, national jurisdictions may be a more appropriate forum.
A showing that a corporate leader committed a wanton act of environmental damage faces challenges, specifically as wanton is defined as a “reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated.” The additional requirement of a “reckless disregard” may prove unworkable in practice, as ecocide does not remove corporate legal concepts like limited liability and separate legal personality.96 It is rare that one corporate individual has enough information about an environmental consequence to recklessly disregard it. The wanton action would have to be isolated from the corporation and attributable to a particular corporate leader.
Perhaps more significantly, the balancing test ingrained in determining “wanton acts” presents a hurdle in determining the social and economic benefits anticipated, as it is unclear how a company is expected to outline the full social impact of their decisions.97 This is challenging particularly in the context of corporations, that operate in the best interests of their shareholders, not society. Ideally, we want corporations to consider the social impacts of their businesses. However, this definition of ecocide would involve “a complete reconception of the purpose of a company and specifically the role its leaders play in making business decisions.”98
B. Mens Rea
The IEP advances a narrower mens rea than the default mens rea provided in Article 30 of the Rome Statute. Article 30 reads:
Most decisions and commentators have interpreted this to require an awareness that the consequences are of a near certainty.100 The default mens rea is applicable “unless otherwise provided,”101 carving out a possibility of requiring a less stringent mens rea.
The IEP proposed a less stringent mens rea of recklessness or dolus eventualis, requiring awareness of a substantial likelihood of severe and either widespread or long-term damage.102 The IEP felt that the default mens rea would be too narrow and exclude actions that have a high likelihood of the requisite damage to the environment. Indeed, ecocide is often the result of reckless actions taken to further their goals, as opposed to a deliberate targeted environmental destruction.103 Instead, a mens rea of recklessness is “sufficiently onerous to ensure that only those persons with significant culpability for grave damage to the environment will be held responsible.”104 But again, while a corporation, like Exxon in the aforementioned illustration, may collectively have requisite mens rea, a corporate individual will have to be singled out, with that same recklessness being attributed to an individual. But who? The CEO? The manager of a polluting factory? The shareholders prioritizing profits above all else? It will be evidentiarily challenging to sort through the corporation enough to pin the liability on a single person.
VII. Would Entity Liability Help?
Some argue that the lack of corporate criminal responsibility as an entity is a hindrance towards the criminalization of ecocide being effective in the fight against corporate environmental degradation:
Instead, the blame may be deflected to lower-level staff.106 A lower-level employee may become a scapegoat, pleading guilty and serving a term of imprisonment, only to be re-hired or rewarded by the corporation or industry.107 Then, there is no guarantee that corporate policy or culture will change moving forward and the organizational wrongdoing is not effectively addressed.108 Would amending the Rome Statute to allow legal persons to face criminal liability increase the efficiency of the criminalization of ecocide influencing corporate behavior?
Corporate criminal responsibility is not a novel concept within international criminal law. Criminal liability for juridical persons, not just natural persons, was considered and rejected for various reasons in original conversations that lead to the Rome Statute’s inception.109 The original focus of the Rome Statute was to hold natural persons responsible for atrocity crimes.110 Due to a lack, at the time, of national jurisdictions holding corporations liable under criminal law, there were concerns that holding juridical persons liable under the Rome Statute would impede complementarity.111 Additionally, criminal liability for juridical persons would add to many governments’ hesitations in ratifying the Rome Statute because of the novelty of the concept and fear of consequences from multinational corporations, such as deterring economic investments in that country from those corporations.112
However, there are no conceptual barriers for holding juridical persons criminally liable under international agreements. Corporations, as legal persons, face criminal liability under numerous international criminal laws.113 The Special Tribunal for Lebanon held three TV stations in contempt for revealing the confidential names of witnesses, showing that legal persons can be subject to liability under international criminal law.114 The Tribunal justified their ruling by pointing to Lebanese law and “[a] general trend in most countries towards bringing corporate entities to book for their criminal acts or the criminal acts of their officers.”115 Most significantly, the Malabo Protocol explicitly provides for jurisdiction over legal persons: “For the purpose of this Statute, the Court shall have jurisdiction over legal persons, with the exception of States.”116
There are mixed conclusions on whether corporations should face criminal liability. One author argues that, due to the organizational complexity of corporations, prosecutions should focus on the corporation instead of the individual.117 Corporations are made up of a collection of individuals and their actions. Responsibilities are delegated, and orders are not necessarily directed outright. This structure also obscures fault but is the very justification for corporate prosecution “when the corporate form makes it difficult to establish culpability on the part of any particular individual.”118 Ultimately, corporations are benefitting from the collective action of individuals, so the action cannot be separated from the institutional framework in which it occurred.119 Corporations are also better positioned to pay restitution to the victims.120 Through the threat of entity liability, individual accountability could be enhanced and, especially in the context of ecocide, it is a worthy conversation to keep having.121
Conclusion
The proposal to criminalize ecocide under the Rome Statute reflects an urgent and morally compelling response to the scale of environmental destruction facing the planet. By recognizing severe and widespread or long-term ecological harm as a core international crime, the international community would articulate a powerful normative judgment: that the deliberate or reckless devastation of the natural world is an offense against humanity itself. As an expressive act, ecocide law has the potential to reshape the global consciousness, elevate environmental protection to a matter of international concern, and signal that catastrophic environmental harm will no longer be treated as a mere regulatory failure.
However, the promise of ecocide as a tool for transforming corporate behavior should not be overstated. This comment has shown that the effectiveness of criminalization under the Rome Statute depends on the realistic prospect of enforcement, rather than symbolic condemnation alone. The ICC’s exclusive jurisdiction over natural persons, combined with the diffuse and hierarchical nature of corporate decision-making, creates formidable attribution problems. Existing modes of liability (indirect perpetration, aiding and abetting, and superior responsibility) were developed primarily in military and atrocity contexts and fit uneasily within corporate structures characterized by delegation, collective decision-making, and strategic information diffusion. The demanding actus reus and mens rea requirements of the proposed ecocide definition further narrow the pool of prosecutable conduct, particularly where environmental harm arises from profit-driven recklessness, rather than overt intent.
As a result, the individuals most responsible for corporate environmental destruction may remain insulated from criminal liability. In this sense, criminalizing ecocide under the Rome Statute may struggle to deliver the deterrent effect its proponents envision. Without a credible threat of prosecution against those who control corporate strategy, and those who reap its benefits, the rational cost-benefit calculus of corporate decision-making is unlikely to shift in any fundamental way.
This does not mean that the ecocide project is misguided. Rather, it suggests that criminalization under the Rome Statute should be understood as a necessary but insufficient step toward corporate environmental accountability. If the international community is serious about curbing corporate-driven ecological destruction, it must confront the structural limitations of individual liability and consider complementary reforms, including the recognition of corporate entity liability or stronger integration with domestic enforcement mechanisms. Absent such reforms, ecocide risks becoming a power symbol with limited practical reach—an important moral statement but one that falls short of making corporations meaningfully more eco-friendly.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
Anja Gauger, Mai Pouye Rabatel-Fernel, Louise Kulbicki, Damien Short & Polly Higgins, Hum. Rts. Consortium, Ecocide is the Missing 5th Crime Against Peace 4 (Jun. 2013), available online. ↩
Jojo Mehta, Ecocide Law: The Next Big Moral and Legal Shift, Stop Ecocide International (Jun. 23, 2025), available online. ↩
Id. ↩
Id. ↩
Gauger et al., supra note 1, at 5. ↩
Milena Sterio, Crimes Against the Environment, Ecocide, and the International Criminal Court, 56 Case W. Res. J. Int’l L. 223, 225 (2024), available online. ↩
Richard A. Falk, Environmental Warfare and Ecocide: Facts, Appraisal, and Proposals, 4 Bull. of Peace Proposals 80, 93 (Dec. 1973), paywall, doi. ↩
Sterio, supra note 6, at 225. ↩
Id. at 225–26. ↩
Id. at 226. ↩
Id. ↩
Id. ↩
Id. ↩
Id. ↩
Id. ↩
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. ↩
Id. Art. 5. ↩
Id. Art. 8(2)(b)(iv). ↩
Stop Ecocide International is a non-profit organization composed of legal scholars whose mission is to advocate for the recognition of a ecocide. ↩
Stop Ecocide Foundation, Independent Expert Panel for the Legal Definition of Ecocide: Commentary and Core Text (Jun. 2021) [hereinafter Core Text], available online. ↩
Id. ↩
Id. ↩
Id. ↩
Id. ↩
Id. ↩
Joanna Gill & Noah Anthony Enahoro, Ecocide: Should Destroying Nature be an International Crime?, Context, Dec. 13, 2024, available online.
(From earliest adopters to latest: Vietnam, Russia, Kyrgyzstan, Kazakhstan, Tajikistan, Belarus, Georgia, Ukraine, Moldova, Armenia, France, Belgium). ↩
Nathalie Colin, Silvia Van Dyck & Maximilien Arnoldy, Ecocide Out of the Woods: Update from Europe and Beyond, Freshfields (Jun. 25, 2024), available online. ↩
Id. ↩
Mehta, supra note 2. ↩
Council of Europe Convention on the Protection of the Environment through Criminal Law (adopted May 14, 2025, opened for signature Dec. 3, 2025), available online.
(The Council of Europe represents forty-six member states. The treaty is now open for signature). ↩
Mehta, supra note 2. ↩
Ukraine Issues Notices of Suspicion to Two Russian High-Ranking Commanders for Ecocide and Other War Crimes, GRC (Feb. 27, 2025), available online. ↩
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Monica Pinna, The EU’s First “Ecocide” Trial? Toxic Chemicals Found in French Homes, EuroNews, Dec. 21, 2022, available online. ↩
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The States Parties to the Rome Statute, ASP, available online (last visited Jan. 11, 2026).
(As of January 2026, 125 countries are State Parties to the Rome Statute). ↩
Rome Statute, supra note 16, at Art. 12(2)(a). ↩
Id. Art. 12(3). ↩
Id. Art. 13(b). ↩
Id. Art. 25(1). ↩
Id. Art. 25(3)(a). ↩
Id. Art. 25(3)(c). ↩
Id. ↩
Id. Art. 28. ↩
Id. Art. 28(2)(a). ↩
Id. Art. 28(2)(b). ↩
Id. Art. 28(2)(c). ↩
Jojo Mehta is the Co-Founder and Chief Executive of Stop Ecocide International. ↩
Jojo Mehta, Criminalizing Ecocide: A Conversation with Stop Ecocide International’s CEO Jojo Mehta, Geo. J. Int’l Aff. (Dec. 4, 2025), available online. ↩
Kristin Vala Ragnarsdóttir & Eleanor Sharpston, Scientists, Lawyers Unite Behind Ecocide Law, The Ecologist (Dec. 20, 2023), available online. ↩
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Vanessa Schwegler, The Disposable Nature: The Case of Ecocide and Corporate Accountability, 9 Amsterdam Law Forum 71, 86 (2017), available online. ↩
Id. at 97. ↩
Wayne B. Gray & Jay P. Shimshack, The Effectiveness of Environmental Monitoring and Enforcement: A Review of the Empirical Evidence, 5 REEP 1, 28 (2011), paywall, doi. ↩
Id. at 25. ↩
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Rebecca J. Hamilton, Criminalizing Ecocide, WCL, 1, 30 (Aug. 2024), available online. ↩
Stop Ecocide International, Climate Ride (Mar. 4, 2020), available online. ↩
Schwegler, supra note 53, at 78. ↩
Id. at 82. ↩
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Carbon Majors, The Carbon Majors Database: Launch Report 3 (Apr. 2024), available online. ↩
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Veronica Threadgill, Gaping Hole: Darning International Corporate Liability for Environmental Disasters and Human Rights, 4 ONE J 803, 804 (Mar. 2019), available online. ↩
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Neela Banerjee, Lisa Song & David Hasemyer, Exxon’s Own Research Confirmed Fossil Fuels’ Role in Global Warming Decades Ago, Inside Climate News, Sep. 16, 2025, available online. ↩
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The Prosecutor v. Germain Katanga, ICC-01/04-01/07, Judgment pursuant to article 74 of the Statute (ICC TC II, Mar. 7, 2014), available online. ↩
Id. ¶ 1408. ↩
Id. ¶¶ 1408, 1409. ↩
Id. ¶ 1411. ↩
Vrishank Singhania, The Proposed Crime of Ecocide: Ignoring the Question of Liability, Opinio Juris (Feb. 16, 2022), available online. ↩
Rome Statute, supra note 16, at Art. 25(3)(c). ↩
Douglass Cassel, Corporate Aiding and Abetting of Human Rights Violations: Confusion in the Courts, 6 Nw. J. Int’l Hum. Rts. 304, 308 (2008), available online. ↩
Lakshita Magar & Nikhil Verma, Closing the Accountability Gap: Corporate Ecocide and the Imperative for International Legal Reform, Virtuosity Legal (May 31, 2025), available online. ↩
Rome Statute, supra note 16, at Art. 28(1)(a)-(b). ↩
Id. Art. 25(2)(a)-(c). ↩
The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08 A, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute” (ICC AC, Jun. 8, 2018), available online, archived. ↩
Id. ¶ 194. ↩
Id. ¶ 5. ↩
Id. ¶ 8. ↩
Id. ¶ 170. ↩
Id. ↩
Id. ↩
Id. ↩
Id. ¶ 171. ↩
Eoin Jackson, Ecocide and Corporate Accountability, The Student Voice, available online (last visited Dec. 6, 2025). ↩
Id. ↩
Id. ↩
Id. ↩
Id. ↩
Rome Statute, supra note 16, at Art. 30(2)(a)-(b). ↩
Core Text, supra note 20. ↩
Rome Statute, supra note 16, at Art. 30(1). ↩
Core Text, supra note 20. ↩
Anastacia Greene, Mens Rea and the Proposed Legal Definition of Ecocide, Völkerrechtsblog (Jul. 7, 2021), available online. ↩
Core Text, supra note 20. ↩
Schwegler, supra note 53, at 93. ↩
Cansu Atılgan Pazvantoğlu, Ecocide as a Separate Crime Under the Rome Statute: A Legal Analysis of the Discourse, 55 EPL 57 (May 2025), available online, doi. ↩
Id. ↩
Schwegler, supra note 53, at 93. ↩
David Scheffer, Corporate Liability Under the Rome Statute, 57 Harv. Int’l L.J. 35, 38 (Jul. 7, 2016), available online, video. ↩
Id. ↩
Id. ↩
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See Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, art. 2 (adopted Nov. 21, 1997, entered into force Feb. 15, 1999), OECD, available online; United Nations Convention Against Corruption, 2349 U.N.T.S. 41 at art. 26 (adopted Oct. 31, 2003, entered into force Dec. 14, 2005), available online; United Nations Convention Against Transnational Organized Crime, 2225 U.N.T.S. 209 at art. 12 (adopted Nov. 15, 2000, entered into force Sep. 29, 2003), available online. ↩
Case against New TV S.A.L. and Karma Mohamed Thasin Al Khayat, STL-14-05/I/CJ, Decision in Proceedings for Contempt with Orders in Lieu of an Indictment (STL Contempt Judge, Jan. 31, 2014), archived. ↩
Id. ¶ 26. ↩
Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, Art. 46C(1) (2014) [hereinafter Malabo Protocol], available online. ↩
Brandon L. Garrett, The Corporate Criminal as a Scapegoat, 101 Va. L. Rev. 1789, 1853 (Nov. 15, 2015), available online. ↩
Id. at 1826. ↩
Id. ↩
Id. at 1851. ↩
Id. at 1853. ↩