The proposal to recognise ecocide as a fifth crime under the Rome Statute presents an important question for international criminal law: not simply whether severe environmental destruction should be criminalised, but whether international criminal law can develop a framework capable of addressing such destruction without sacrificing legality, fairness and effective accountability.

In my view, the debate should move beyond a binary “for or against” approach. The stronger question is what an ecocide crime would need to achieve in order to be legally meaningful.

The proposed definition would criminalise unlawful or wanton acts committed with knowledge of a substantial likelihood of severe and either widespread or long-term environmental damage. This formulation is significant because it would allow environmental destruction to be recognised as a harm in its own right rather than only when connected to an existing international crime. At present, Article 8(2)(b)(iv) already addresses certain severe environmental damage in the context of international armed conflict, but its application is tied to the conduct of hostilities. A standalone offence could therefore address forms of environmental destruction occurring outside that framework.

However, three issues require particular attention.

First, legality and precision. Terms such as “severe,” “widespread,” “long-term” and particularly “wanton” must provide sufficiently clear boundaries for criminal responsibility. International criminal law operates under the principle of legality. The more ambitious the new crime, the greater the need for an intelligible threshold distinguishing international criminality from environmental damage that should instead be addressed through regulatory, civil or domestic criminal mechanisms.

The proposed balancing element in “wanton” conduct also deserves careful scrutiny. Comparing environmental damage with anticipated social and economic benefits may be necessary to distinguish criminal conduct from legitimate activities, but the test cannot become so open-ended that similar conduct is treated differently depending on political or economic power. The law should identify who bears the environmental costs and who receives the anticipated benefits.

Second, the Global South dimension cannot be treated as an afterthought. Environmental destruction and economic development frequently intersect. Many developing States depend upon agriculture, mining, energy production and natural resources for employment, public revenue and poverty reduction. A poorly constructed ecocide provision could therefore create legitimate concerns about whether ordinary development activities might become exposed to international criminal scrutiny.

But this concern should not be used to create an accountability gap for those who deliberately externalise catastrophic environmental costs onto vulnerable communities. The distinction should be between development itself and conduct involving grave, foreseeable and unjustifiable environmental destruction. A carefully constructed crime should protect both environmental integrity and legitimate development interests.

This is particularly important because environmental harm is rarely distributed equally. Communities with the fewest resources to prevent or remedy environmental destruction can experience its consequences most severely. From this perspective, an ecocide framework should not only ask whether an ecosystem has been damaged, but also examine questions of displacement, livelihoods, health, food security, access to water, cultural heritage and the rights of affected communities.

Third, the question of perpetrators must be confronted honestly. If ecocide is primarily associated with large-scale environmental destruction, the legal framework should not disproportionately expose low-level actors while leaving the individuals who design, authorise, finance or profit from destructive activities outside meaningful accountability. The debate should therefore address modes of individual responsibility, superior responsibility where legally applicable, corporate structures, and the relationship between corporate conduct and individual criminal liability.

The ICC's existing individual criminal responsibility framework also means that simply adding ecocide would not automatically make corporations defendants before the Court. If corporate actors are central to the phenomenon being addressed, the Rome Statute architecture and mechanisms for identifying responsible individuals would need to be considered alongside the new offence.

There is also an important institutional question. Adding a fifth crime without providing the Court with appropriate scientific, environmental and technical expertise could produce a gap between legal ambition and practical adjudication. Environmental harm often involves complex questions of causation, cumulative impacts, scientific uncertainty and transboundary effects. The Court would therefore require the capacity to assess evidence that differs substantially from conventional international criminal investigations.

Finally, an ecocide provision should not be judged only by the number of prosecutions it produces. International criminal law has an expressive, preventive and accountability function, but victims and affected communities also require remedies. If environmental destruction produces displacement, loss of livelihoods, health consequences or destruction of culturally significant ecosystems, the debate should consider how reparations could respond to these harms.

For these reasons, I would approach the proposed fifth crime neither as a symbolic expansion of the Rome Statute nor as a substitute for environmental regulation. Its legitimacy would depend upon whether it can close a genuine accountability gap while remaining faithful to legality, individual criminal responsibility and fair adjudication.

The most important question may therefore be reframed:

Can the international community design an ecocide offence sufficiently precise to satisfy the requirements of international criminal law, sufficiently broad to address grave environmental destruction outside armed conflict, and sufficiently sensitive to development and Global South realities to avoid reproducing existing inequalities in international justice?

If the answer is to be yes, the process of defining the crime may be just as important as the decision to recognise it.