Prosecuting ecocide, the international crime of our time

As floods, wildfires, record temperatures and zoonotic disease make the climate and ecological crisis impossible to ignore, the world seems to be moving closer to agreeing that serious damage to our natural environment is more than just a matter for goodwill agreements and may amount to an international crime.

The last time a new international criminal offense was introduced was after the Second World War. The Nuremberg and Tokyo Charters added crimes against humanity to the existing war crimes and crimes against peace (“aggression”), enshrining the idea that certain acts are so egregious that, whoever the immediate victim may be, they concern us all. Soon after, in 1948, a particular crime against humanity — genocide — was incorporated in a new treaty.

We may be witnessing an equivalent moment in our relationship to the environment. Last month, a diverse independent panel of international lawyers issued the draft text defining the crime of “ecocide,” to be proposed for inclusion in the statute of the International Criminal Court.

The panel, convened by the Stop Ecocide Foundation, defined the crime as follows: 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.

To be recognized as an international crime alongside genocide, crimes against humanity, war crimes and aggression, the crime of ecocide will need the support of at least two-thirds of ICC member states (currently 123 states in total). It will then become effective for any state that ratifies it. Individuals in positions of responsibility whose actions meet the definition will be subject to prosecution at the ICC, or by any national courts with jurisdiction, and sentenced to prison if convicted. This is a major shift from the status quo, where criminal sanctions are lacking, at the international level and often at national level, too, for many of the worst cases of mass environmental destruction. In most jurisdictions, individuals or corporations face only financial penalties.

Criminalizing ecocide could have a stronger deterrent effect than the prospect of genocide or war crimes charges do, because it is largely a corporate offense. A company’s value depends heavily on its reputation and investor confidence, so managers would have much to lose by finding themselves in the same dock as a war criminal (the ICC prosecutes individual offenders rather than corporations).

Even the risk of appearing to have committed an international crime may steer corporate decision-makers toward safer and more sustainable methods of operation. The hope is that the deterrent will take effect long before the law does, as the prospect of legislation becomes visible.

There are, of course, challenges to moving forward. The ICC is already navigating difficult waters, and it is clear from developments in France that domestic ecocide legislation can be problematic (the recently enacted Climate and Resilience Act 2021 includes a much-criticized weakening of the term).

But broad international support for the crime of ecocide can and must be garnered. Governments, including those of Vanuatu, the Maldives, France, Belgium, Finland,

Spain, Canada and Luxembourg, are already expressing interest. And parliamentary motions or draft laws have been submitted in a number of countries, including Belgium, Portugal, Brazil, France, Bolivia, Bangladesh, the UK and Chile. Countries must not wait for catastrophe to stop the international crime of our time.