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Should Ecocide be classified as an international crime?

Eduardo Schneider Lersch

Tradução: Ligia Payão Chizolini


Recently, a campaign to recognize the crime of Ecocide as the fifth international crime has gained support from important sectors of society. As concerns about combating climate change gain momentum, several nations have started to implement this classification in their domestic legal systems. France, Russia, Ukraine, Belgium, and Chile are some of the countries that have included the crime of Ecocide in their criminal charges, while Brazil, Italy, Scotland, and the Netherlands, among others, have ongoing legislative proposals to classify this offense.


This trend seems to align with the growing interest in climate litigation in the civil sphere, which has shown results and received attention from important political and academic sectors. Enhancing accountability in the criminal sphere for perpetrators of serious environmental crimes is equally necessary.


However, it must be recognized that, in the criminal sphere, the adoption of judicial processes has not been particularly effective. Important cases are rare, and systemic crimes like Ecocide are hardly found, despite illegal environmental activity being part of an ever-growing criminal underworld. At best, these offenses are absorbed by other activities that receive the focus of the State's repressive actions.


In light of such circumstances, the campaign led by the Stop Ecocide foundation since 2017 has begun to spearhead global efforts to recognize the crime of ecocide in the realm of international criminal law. Bringing together experts and activists from various nations, the foundation presented a legal definition of the crime of ecocide to be included in the Rome Statute, thereby attracting the jurisdiction of the International Criminal Court (ICC):


"For the purposes of this Statute, 'Ecocide' means unlawful or wanton acts committed with the knowledge that there is a substantial likelihood of severe and widespread or long-term damage to the environment."

In its justification, the foundation explains that civil sanctions can be part of the economic calculations of polluting companies and other environmental degradation agents, but the prospect of punishment in the criminal sphere reinforces:


  • Deterrence: High-level decision-makers in government and the sector will be much more careful and conscious about what they sign, while investors and insurers will shy away from projects that might be deemed criminal;

  • Reinforcement of existing laws: Naming the worst damages as crimes will help all environmental laws to be taken seriously;

  • Level playing field: Those who are doing the right thing will no longer be disadvantaged while the less scrupulous pass on the damage and its costs to nature, communities, and governments;

  • Support for multilateral agreements: With the binding basis of criminal law, it will be easier to adhere to non-binding agreements (Paris, Kunming-Montreal);

  • Cultural shift: Criminal law draws moral lines and will help create a healthy social taboo against mass damage to nature.


If approved and ratified by the member states of the Rome Statute, the crime of ecocide would be included among the international crimes considered the most heinous by humanity, along with: war crimes, crimes of aggression, crimes against humanity, and genocide. It should be noted that the statute includes environmental crimes as war crimes, but the ICC's Office of the Prosecutor has never investigated or prosecuted individuals for environmental offenses.


The strategy is seen as a way to reduce impunity, as the ICC's jurisdiction is endorsed by member states, meaning that a ratifying nation has the duty to arrest individuals within its territory if a warrant is issued by the court. Additionally, it is a means to regulate domestic legal systems, so they adopt the necessary measures to prevent and repress such crimes.


The first campaign of this nature emerged in the 1970s, in response to what was happening in the Vietnam War, especially due to the new war tactics employed by the United States government involving the use of chemical weapons that caused enormous environmental devastation, leaving lasting ecological and human scars in the region. Richard A. Falk, the first to propose a legal definition and the inclusion of Ecocide as an international crime, summarized the sentiment of the time about the war:


"In Indochina during the last decade, we have the first modern example where the environment was selected as an appropriate 'military' target for comprehensive and systematic destruction. Such an occurrence reflects not only the depravity of the high-tech sensibilities of war planners. It follows the demonic logic of counterinsurgency warfare, especially when the insurgent threat is formidable and located in a tropical setting."

The legal definition proposed by Falk was debated in various international committees, including the one that preceded the 1998 Rome Convention, which led to the current Rome Statute, establishing the ICC as the first permanent international court. Although it did not meet much resistance from the parties (only three countries opposed the inclusion of the crime of ecocide in the final document), it was ultimately excluded from the statute.


The recent campaign led by the Stop Ecocide foundation has gained support from Ukraine and its allies to bring Russia to trial for this accusation due to its invasion, occupation, and destruction of significant parts of Ukrainian territory. Unlike the definition proposed by Falk, the current proposal has broader implications, not limited to wartime, and can target political and corporate leaders complicit in major environmental crimes such as deforestation, illegal drilling and mining, large-scale contamination, and pollution.


There are still many steps to make the proposal feasible, and if approved, eventual ratification could take decades. However, it is presumed that its inclusion among international crimes would have a significant impact, even if symbolic. Its repercussions will affect the approach to the issue among ratifying nations, even if the international prosecution of this crime faces various limitations. Milena Sterio explains that:


"Even if ecocide were prosecuted at the ICC, these proceedings would face inherent limitations within the structure of the Rome Statute: first, the ICC's territorial and temporal jurisdiction is limited; second, all cases brought to the ICC are subject to the complex threshold of gravity as well as the ICC's complementarity regime; third, the ICC only prosecutes individuals; and finally, crimes committed by companies would remain beyond the ICC's investigative and prosecutorial reach. In sum, while the trial of environmental crimes or ecocide at the ICC remains an attractive idea, these proceedings would likely have limited effect."

The inclusion of ecocide as an international crime is a fundamental step in addressing the severe and often irreversible damage inflicted on the planet's ecosystems. By recognizing ecocide at this level, the international community acknowledges the gravity of environmental destruction and its far-reaching impacts on biodiversity, human health, and the global climate, not only setting a precedent for accountability but also serving as a powerful deterrent against corporate and governmental actions leading to environmental devastation. This creates a legal framework through which the most egregious acts of environmental harm can be prosecuted, thus promoting a healthy culture of governance and environmental responsibility.


However, the effectiveness of combating ecocide also depends on the active participation of national legal systems. National jurisdictions must integrate ecocide into their criminal justice structures, ensuring that perpetrators are held accountable both locally and internationally. This dual approach reinforces the principle that environmental protection is a shared responsibility, requiring cohesive action beyond borders.


In addition to criminal prosecution, civil litigation plays a fundamental role in addressing the consequences of ecocide. Civil actions can provide pathways for affected communities to seek compensation and redress for environmental damage. This aspect of climate and environmental litigation ensures that victims of ecocide are not left without recourse and that polluters bear the financial burden of restoration. Beyond the additional focus on the need for environmental accountability, it sends a clear message that rampant ecosystem destruction is intolerable. Such measures bring us closer to a future where environmental protection is an integral part of our legal and moral framework, ensuring the preservation of our planet for future generations.


Notes and References


  1. https://www.opendemocracy.net/en/ecocide-must-be-international-crime-latin-america-cop3-escazu-agreement-environmental-rights-defenders/. Accessed July 14, 2024.

  2. A more comprehensive list showing the established definitions in legal texts can be found here: https://ecocidelaw.com/existing-ecocide-laws/#:~:text=On%20November%208th%202023%2C%20the,%2C%20known%20as%20“ecocide”. Accessed July 15, 2024.

  3. https://www.eurojust.europa.eu/publication/report-eurojusts-casework-environmental-crime. Accessed July 14, 2024.

  4. https://www.stopecocide.earth/legal-definition. Accessed July 14, 2024

  5. https://www.stopecocide.earth/making-ecocide-a-crime. Accessed July 14, 2024

  6. Article 8 - War Crimes 1. The Court shall have jurisdiction to prosecute war crimes, particularly when committed as part of a plan or policy or as part of a large-scale practice of such crimes. 2. For the purposes of this Statute, "war crimes" means: [...] iv) Intentionally launching an attack, knowing that it will cause incidental loss of life or injury to civilians, damage to civilian property or extensive, long-term, and severe environmental damage that would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;

  7. STERIO, Milena. Crimes Against the Environment, Ecocide, and the International Criminal Court. Case Western Reserve Journal of International Law Vol. 56, 2024, p. 227. Available at: https://scholarlycommons.law.case.edu/jil/vol56/iss1/12

  8. In the present Convention, ecocide means any of the following acts committed with the intent to disrupt or destroy, in whole or in part, a human ecosystem: a) The use of weapons of mass destruction, whether nuclear, bacteriological, chemical or other; b) The use of chemical herbicides to defoliate and clear natural forests for military purposes; c) c) The use of bombs and artillery in such quantity, density, or size that it impairs soil quality or increases the likelihood of dangerous diseases for humans, animals, or crops; d) The use of excavation equipment to destroy large tracts of forests or agricultural lands for military purposes; e) The use of techniques designed to increase or decrease rainfall or modify the climate as a weapon of war; f) The forced removal of humans or animals from their usual places of residence to expedite the pursuit of military or industrial objectives. (our translation). Cf. FALK, Richard A. Environmental Warfare and Ecocide — Facts, Appraisal, and Proposals. Bulletin of Peace Proposals 4, 1973, p. 21, https://doi.org/10.1177/096701067300400105 [9] STERIO, op. cit., p. 224-226 [10] They were the United States of America, United Kingdom, and the Netherlands. Cf. STERIO, op. cit., p. 227 [11] Cf. https://www.stopecocide.earth/leading-states [12] Milena Sterio. Crimes Against the Environment, Ecocide, and the International Criminal Court. Case Western Reserve Journal of International Law Vol. 56, 2024, p. 227. [13] STERIO, op. cit., p. 232.



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