The recognition of new international crimes is crucial as global challenges evolve. Today, a growing number of world leaders, including Pope Francis and French President Emmanuel Macron, are advocating for the recognition of “ecocide”—the widespread destruction of the environment—as an international crime.[i] Advocates argue that this offense poses a severe threat to humanity and should be incorporated into international law as a crime prosecutable by the International Criminal Court (“ICC”), similar to genocide, crimes against humanity, war crimes, and crimes of aggression.
I. The Call for Recognizing Ecocide as an International Crime
Ecocide is broadly defined as “the massive contamination of air, land, and water,” or any act “capable of producing an ecological disaster.”[ii] Advocates for the criminalization of ecocide point to devastating environmental disasters as evidence of the need for legal deterrents.
One prominent example is the 2019 fires in the Amazon rainforest, which were largely driven by human activity.[iii]These fires raged out of control, threatening biodiversity and contributing to climate change by releasing more carbon dioxide than the forest could absorb. These fires were seen as such a significant ecological disaster that some, including U.S. President Joe Biden, proposed measures, including economic sanctions, to protect the rainforest from further damage.
Similarly, environmental destruction has become a global phenomenon with other hotspots of devastation.[iv] In 1986, the Chernobyl nuclear disaster in Ukraine left a large area dangerously radioactive. In northern Canada, the extraction of tar sands has replaced 400 square miles of forest and wetlands with toxic waste pits. The Gulf of Mexico is still suffering from the aftermath of the Deepwater Horizon oil spill, which spilled at least 168 million gallons of crude oil, killing marine life and polluting the ocean for decades.
These instances, among others, highlight the urgent need for a legal framework to prevent and punish severe environmental damage. Advocates argue that criminalizing ecocide under international law could serve as a powerful deterrent for such destruction.
II. What It Takes for Ecocide to Become an International Crime
To be prosecuted alongside international crimes like genocide, crimes against humanity, war crimes, and crimes of aggression, ecocide needs to be recognized as a jus cogens norm. Jus cogens refers to fundamental, overriding principles of international law that are universally recognized and must be upheld by all states.[v] These norms, such as the prohibition of torture or genocide, are considered so essential to the international community that no state may opt out or deviate from them. For ecocide to achieve this status, it would need broad acceptance as a core principle that the international community deems “non-derogable,” meaning no exceptions are allowed under any circumstances.
Supporting the international criminalization of ecocide is the implementation of domestic laws prosecuting acts causing environmental destruction and harm. This is already seen in a few countries, including Belgium, which has enacted laws addressing environmental crimes in its Environmental Crime Directive.[vi] Additionally, the international move toward accountability for environmental harm can be seen in the recent advisory opinion released by the International Tribunal for the Law of the Sea, which declared that greenhouse gas emissions constitute pollution of the marine environment and imposed a duty on states to prevent, reduce, and control such emissions.[vii]
However, a significant barrier to ecocide becoming a crime prosecutable under international law is the lack of a universally agreed-upon definition. The Rome Statute, the treaty that established the ICC and outlines the court’s functions, jurisdictions, and structure, currently governs the prosecution of the four core international crimes (genocide, crimes against humanity, war crimes, and the crime of aggression). For ecocide to be included, states would need to agree on a precise legal definition and amend the Rome Statute accordingly.
In 2021, the Independent Expert Panel for the Legal Definition of Ecocide proposed a definition calling for states to adopt a uniform definition to incorporate the crime into the Rome Statute. They defined ecocide as unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.[viii] However, commentators have noted the distinction between punishing actions, both unlawful and wanton, has the potential to criminalize lawful acts. While possibly deserving due to the impact on the environment, some note that modern lawful actions such as distributing food or manufacturing computers may foreseeably cause long-term severe ecological harm that would be punishable; however, these actions may also be socially valuable, and done environmentally, legally, and ethically responsible, despite the environmental impact.[ix] This creates the question of what actions should not be punished despite their negative environmental impact.
III. Recent Cases Highlighting the Need for Ecocide Laws
Recent cases, such as the destruction of the Kakhovka dam in Ukraine, underscore the urgent need to recognize ecocide as a crime. In June 2023, an explosion at the Kakhovka dam on the Dnipro River in Ukraine caused massive flooding, killing people and causing extensive environmental damage.[x] The collapse released crude oil, municipal waste, and chemicals, contaminating water, soil, and agricultural land. Ukrainian authorities believe Russia was behind the dam’s destruction and are building a case against Russia in an attempt to hold the country accountable in the ICC for environmental war crimes.[xi] If successful, this would be the first prosecution of an environmental war crime and could set a precedent for future cases.
Such future cases include the possible prosecution of the environmental destruction in Gaza, which has sparked accusations of ecocide by Israel.[xii] Actions taken by the Israeli military, including flooding underground tunnels with seawater, have raised concerns about the permanent salination of land. Those present in Gaza are concerned that the salt has made the land unfit for agriculture and has potentially contaminated the aquifer that supplies water to Gaza’s residents. Advocates argue that these actions fit the definition of ecocide, causing severe and long-term environmental harm.
IV. Conclusion
The campaign to criminalize ecocide is more than prosecution of the law; rather, it is a deterrent, sending the message that environmental destruction on a massive scale is not acceptable. Advocates believe that even if only a few cases are prosecuted, the recognition of ecocide as an international crime would have a ripple effect on actions taken by states and individuals.
The planet is already facing unprecedented environmental changes and challenges, which have created a push to criminalize and deter human actions that exacerbate these issues. By holding individuals accountable for severe environmental harm, the world can begin to address the injustices that have long gone unpunished. The recent environmental crises in Ukraine and Gaza are stark reminders of the need for stronger international laws to protect the environment. Whether or not ecocide becomes the fifth international crime, the campaign has already sparked a vital global conversation about the importance of preserving our planet for future generations.
[i] Nicholas Kusnetz, et al., ‘Ecocide’ Movement Pushes for a New International Crime: Environmental Destruction, NBC News (Apr. 7, 2021, 5:00 AM), https://www.nbcnews.com/news/world/ecocide-movement-pushes-new-international-crime-environmental-destruction-n1263142.
[ii] Id.
[iii] Id.
[iv] Id.
[v] Om Marathe, Explained: What is Jus Cogens?, Indian Express (Jan. 7, 2020, 4:47 PM), https://indianexpress.com/article/explained/iran-us-tension-qassem-soleimani-death-what-is-jus-cogens-6203579/.
[vi] Monica Lennon and Judith Schwartz, The Promise of Ecocide Law, from Boardroom to Courtroom (Commentary), MONGABAY (Aug. 19, 2024), https://news.mongabay.com/2024/08/the-promise-of-ecocide-law-from-boardroom-to-courtroom-commentary/.
[vii] Amnesty Int’l, Global: International Tribunal Sets Groundbreaking Precedent that will Help Protect Oceans and People from Climate Harms(May 21, 2024) https://www.amnesty.org/en/latest/news/2024/05/global-international-tribunal-sets-groundbreaking-precedent-that-will-help-protect-oceans-and-people-from-climate-harms/.
[viii] Eliana Cusato, The ‘Imbroglio’ of Ecocide: A Political Economic Analysis, Leiden J. of Int’l. L. 42, 57 (2024).
[ix] Id.
[x] Tim Schauenberg, Could Russia be Prosecuted for Environmental War Crimes?, DW (Aug. 20, 2024), https://www.dw.com/en/is-russias-war-in-ukraine-an-environmental-war-crime/a-69859017.
[xi] Id.
[xii] Lylla Younes, Israel’s Campaign in Gaza is Fueling Demands to Make ‘Ecocide’ an International Crime, Grist (Feb. 26, 2024), https://grist.org/international/israel-gaza-demands-ecocide-international-law/.
