Oliver Hovenden
Image sourced from Vincentraal via Flickr.
In September 2024, Vanuatu, Fiji and Samoa proposed a groundbreaking amendment to the Rome Statute of the International Criminal Court: the inclusion of ecocide as an international crime. This proposal follows decades of advocacy for the international recognition of inclusion of environmental degradation. The Rome Statute addresses the gravest of international crimes, including genocide and war crimes. The addition of ecocide could provide a much-needed legal mechanism to address environmental destruction that occurs outside the context of armed conflict.
But what might such a framework look like in practice? Examining real-world cases provides insight into how ecocide laws might function and the deterrent they could offer.
A Long Time Coming
The term ‘ecocide’ was first used by Professor Arthur Galston to describe the devastating impact of Agent Orange during the Vietnam War. It was Galston’s scientific discovery that led to the development of the herbicide, which was used by American and British armies to damage almost three million hectares of land. The health of an estimated three million people was consequently impacted. This prompted Galston to call for an international agreement to ban the “destruction of the natural environment by deliberate or negligent human action.”
Despite decades of debate, environmental degradation has never been codified internationally. It only appears in the Rome Statute as an example of a war crime, leaving peacetime ecological harm– often driven by states or corporations for profit– outside the scope of international criminal law.
For example, Russia’s destruction of Ukraine’s Kakhovka Dam in June 2022 caused catastrophic flooding that killed hundreds, displaced thousands, and caused long-term environmental degradation. The flooding destroyed ecosystems, killed animals, and cut off access to drinking water and irrigation. This environmental destruction would likely fall under the ICC’s current mandate as a war crime, due to its commission in the context of an armed conflict. Codifying ecocide as a standalone crime would close gaps by allowing similar acts committed in peacetime– such as those resulting from corporate negligence– to also be prosecuted.
Beyond War Crimes
The Pacific Islands’ proposal draws on a 2021 definition of ecocide, developed by an International Expert Panel, 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.” Advocates for the proposal, like Vanuatu’s Special Envoy for Climate Change and Environment, Ralph Regenvanu, believe that legal recognition would also deter further destruction by creating a moral and legal obligation to prevent severe ecological damage, pushing industries and governments to adopt more sustainable practices.
Deforestation in Indonesia illustrates the devastating harm the new ecocide laws could address. Driven by the palm oil industry and lately nickel mining for electric vehicle batteries, Indonesia’s forest-cover declined from 87 per cent in 1950 to just 49 per cent by 2022. This deforestation makes Indonesia the world’s largest forest-based emitter of greenhouse gases and threatens species like the Sumatran orangutan and Sumatran tiger with extinction. Under the proposal, prioritising profit over sustainability, could be classified as “wanton acts.” Recognising these acts as international crimes could deter harmful corporations and encourage more sustainable practices.
The 1984 Bhopal Gas Tragedy in India is another example of corporate negligence with catastrophic consequences. When 40 tonnes of toxic gas leaked from Union Carbide India Limited’s (UCIL) pesticide plant, over 3,000 people were killed instantly. An estimated 574,000 people were poisoned by the leak, leading to over 20,000 deaths from related illnesses, while children in the region are still born with related disabilities decades later. The surrounding environment remains hazardous, with soil and groundwater contamination persisting for years.
At the time of the leak, the plant’s infrastructure was in disrepair with critical safety systems malfunctioning. Despite detecting the leak, UCIL delayed sounding the public alarm for nearly two hours. In 2010, seven UCIL employees were convicted of causing death by negligence. The company’s disregard for public safety exemplifies the “unlawful” and “wanton” thresholds of the proposed definition. If ecocide had been codified at the time, this case could have reached the international stage, setting a powerful precedent for corporate leaders.
The Challenging Road Ahead
Internationally codifying ecocide presents significant hurdles. No proposal to add a new crime to the Rome Statute has ever succeeded. To be adopted, State Parties must agree to the proposed amendments, with input likely to be influenced by vested interests, as seen in lobbying activity in climate negotiations. Even if successful, the ICC’s jurisdiction would remain limited, as major polluters like the United States, China, and India are not ICC members.
Enforcement would also be challenging. The ICC prosecutes individuals, not corporations, making it difficult to trace liability in complex industrial operations. The Court’s resource and process constraints add another layer of difficulty. In over 20 years, the ICC has only processed 30 cases. It remains unclear how ecocide cases would be prioritised alongside other crimes like war crimes or crimes against humanity.
A Bold Vision for Action
Codifying ecocide would be a significant step toward international environmental justice.
While the road to codification will be lengthy and complex, the escalating climate crisis demands bold and decisive action. Recognising ecocide as an international crime would elevate its seriousness, affirming a global commitment to safeguard the environment for future generations.
As Vanuatu’s Ralph Regenvanu puts it: “Ultimately, the true measure of success will be whether this process amplifies the voices of the most vulnerable and translates legal clarity into tangible action for climate justice.”
Oliver Hovenden holds a Bachelor of Arts and Laws (Honours) from the University of Tasmania, where he majored in Politics and International Relations. During his degree, he studied international law at the University of Tilburg in the Netherlands and completed a Law Honours thesis on the use of human rights mechanisms to compel action on climate change.
Oliver currently works in legal policy, focusing on modern slavery and human trafficking, and is completing a Master of Laws at the Australian National University. A human rights advocate, he was awarded Hobart Young Citizen of the Year in 2022.
Kommentare