The biggest and most unexpected development to come out of COP27 was the agreement between more than 190 U.N. member nations to establish a global “loss and damage” fund for “developing” nations suffering the worst effects of climate change (UNEP). For nearly 30 years, climate activists have been pushing for states to pay for “loss and damage” as well as to take legal accountability for crimes committed against the environment and for the subsequent human rights violations as a result of climate change (Bhandari, Preety, et al). In an attempt to find a legal course of action that would sufficiently address climate change, legal scholars have mostly concluded that there are relatively few avenues through which to pursue climate justice in international criminal law. This is because the International Criminal Court, “governed by the Rome Statute” and created on July 17th of 1998 by 160 member nations, only prosecutes nations for four international crimes (ICC). They are: genocide, crimes against humanity, war crimes, and crimes of aggression (ICC). Acknowledging that these crimes do not sufficiently address the gravity of climate change's effects, many lawyers and climate activists have called for the addition of a fifth international crime, “ecocide”, to the Rome Statute (Hasan). By adding ecocide to the list of international crimes, states party to the Rome Statute could be more adequately held accountable for ending activity which harms the environment and for granting comprehensive reparations to those who have been displaced by climate change or who have suffered a violation of their human rights. Despite the hope that many see in pursuing ecocide as an international crime, there are a considerable number of opponents to this movement. Regardless of the opposition, pursuing ecocide as an international crime and advocating for the internalization of it in international and domestic law has incredible benefits and symbolic value that should not be ignored.

Although many would assume that the Rome Statute covers the full breadth of international crimes, Heather Alberro and Luigi Danielle note that it falls short in its ability to address climate change,

“Indeed the Rome Statute, founding treaty of the International Criminal Court, mentions the environment just once, in relation to war crimes and only in situations legally qualifiable as armed conflicts. Beyond war crimes, the only other tool to protect the environment in the hands of the ICC is that of crimes against humanity. However, as the name suggests, this category remains deeply anthropocentric, requiring the environmental destruction to be ‘committed as part of a widespread or systematic attack’ against a ‘civilian population’.” (Alberro & Danielle 1).

Despite the fact that scientists can determine how much harm will be done if nations do not take sufficient action in the future, it is more complicated to account for quantifiable harm done in the past or up until the present moment. Put more simply, although scientists can say that a lack of global action will lead to an additional degree increase in global warming, it is much more difficult, if not impossible, to prove that one nation’s emissions or lack of action led to catastrophic flooding in another part of the world. However, if the necessity to operate under these four crimes changed, and “ecocide” was added to the Rome Statute, the legal struggles would change significantly.

As a term, “ecocide” was first used in 1970 at the Conference on War and National Responsibility by Professor Arthur W. Galston, a “U.S. biologist who identified the defoliant effects of a chemical later developed into Agent Orange” and who advocated for banning ecocide. At the conference, ecocide was used to describe “massive damage and destruction of ecosystems” and has since been more specifically defined by the Independent Expert Panel for the Legal Definition of Ecocide. In June of 2021, a proposed draft of a legal definition of was completed as an amendment to the Rome Statute, defining 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” (Ecocide Law). This definition of ecocide and the inclusion of it in the Rome Statute has numerous benefits and implications.

As stated by Rachel Killean of the IPI Global Observatory, “The proposed crime extends the possibility of prosecutions for environmental damage beyond the context of war, theoretically enabling individuals to be prosecuted for harms such as ocean damage through oil spills, deforestation, land and oil contamination, and air pollution” (1). Most importantly, Killean also notes that “the ICC’s reparation mandate” holds the door open for opportunities for global reparations to those who have been or become victims of ecocide, meaning that victims could be compensated for “loss of natural resources, reforestation and other environmental restoration projects, and symbolic measures which recognize what had been lost”, all of which accounts for the deficiencies of other failed legal avenues (2). If ecocide were added to the Rome Statute, this mandate for comprehensive reparations would be a critical and legitimate measure for people to claim what is owed to them.

Although the pursuit of this avenue of climate justice has inspired many and is growing in popularity, the movement has opponents from fossil-fuel companies, governments, and even some climate activists. Aside from the obvious opponents, like fossil-fuel companies and governments who rely heavily on GHG emissions to further economic growth, there are also climate activists who believe that people are better off spending their time advocating for more immediate, permanent, and preventative solutions to the climate crisis. In, “Why Making Ecocide a Crime Won’t Tackle the Root Causes of the Climate Crisis”, Molly Lipson writes that ecocide fails to appropriately address human lives and loss, prioritizes financial compensation to too great a degree, does not guarantee the prevention or cessation of harmful activities, and has potential to target workers who had very little power in the decision making process but were the ones who carried out the destructive acts to the environment. Furthermore, even if ecocide was added as a fifth international crime, the ICC has been criticized for having too little jurisdiction over corporations and non-member states which poses significant challenges for implementation (Killean 1).

            Despite the obvious challenges and obstacles on a legal level, it is important to note the symbolic significance and necessity of caution in the approach of criminalizing ecocide. Symbolically, criminalizing ecocide signals “that the international community considers the destruction of the environment to be one of the ‘most serious crimes of concern’” and therefore “would be contributing to a growing consciousness of the need to prevent and meaningfully address the harms perpetrated against the natural world” (Killean 1). At the same time, what Lipson argues rings true, criminalizing ecocide and insufficiently including language of the specific kinds of reparations to be received or given runs a risk of decentering groups of people who have historically been neglected and harmed by environmental acts from the beginning of the anthropocene, utilizing the 1610 date as its beginning (Steve Mentz). For this reason, it would be critical to establish an advisory committee to oversee rulings and to put pressure on nations to properly administer reparations, as well as to follow the United Nations’ five conditions for full reparations; cessation, repatriation, compensation, satisfaction, and rehabilitation (M4BL).          

While it will be impactful, be it not immediately, to make ecocide an international crime, it is even more important for the U.S. and other nations to internalize it as a crime within their own borders and to ratify the Rome Statute so that accountability can be sought through the ICC. Our present climate crisis is only the peak of a mountain of injustices and inequalities perpetuated by the institutions, governments, and industries that have relied on them for profit and exploitation, which is why criminalizing ecocide is so important. Fundamentally, prosecuting nations, corporations, and individuals serves as a preventative and restorative legal mechanism that has the ability to realize full climate justice which is justice for all.

Genevieve Cabadas is a junior at Barnard College majoring in human rights and political ecology. She serves as the Executive Editor for the Current Events division of the Columbia Undergraduate Law Review, in addition to serving as their Business Director. 

Sources:

Alberro, Heather, and Daniele, Luigi. “Ecocide: Why Establishing a New International Crime Would Be a Step towards Interspecies Justice.” The Conversation, 13 Sept. 2022, https://theconversation.com/ecocide-why-establishing-a-new-international-crime-would-be-a-step-towards-interspecies-justice-162059.

Bhandari, Preety, et al. “What Is ‘Loss and Damage’ from Climate Change? 6 Key Questions, Answered.” World Resources Institute, 6 Apr. 2022, https://www.wri.org/insights/loss-damage-climate-change#:~:text=â??Loss and damageâ?? is a,to access or utilize theme.

“COP27 Ends with Announcement of Historic Loss and Damage Fund.” UNEP, UNEP, 2022, https://www.unep.org/news-and-stories/story/cop27-ends-announcement-historic-loss-and-damage-fund.

Hasan, Tarin. “Why It Is Necessary to Include Ecocide in the Rome Statute.” The Business Standard, 16 Feb. 2022, https://www.tbsnews.net/thoughts/why-it-necessary-include-ecocide-rome-statute-37156

Killean, Rachel. “The Benefits, Challenges, and Limitations of Criminalizing Ecocide.” IPI Global Observatory, IPI International Peace Institute, 30 Mar. 2022, https://theglobalobservatory.org/2022/03/the-benefits-challenges-and-limitations-of-criminalizing-ecocide/#:~:text=Possible Benefits of Criminalizing Ecocide&text=The proposed crime extends the,oil contamination, and air pollution.

“Legal Definition and Commentary 2021.” Ecocide Law, Stop Ecocide International and the Promise Institute for Human Rights at UCLA School of Law , https://ecocidelaw.com/legal-definition-and-commentary-2021/.

Lipson, Molly. “Why Criminalising Ecocide Won't Solve the Climate Crisis.” Euronews, Euronews.green , 15 Mar. 2021, https://www.euronews.com/green/2021/03/13/why-making-ecocide-a-crime-wont-tackle-root-causes-of-climate-crisis.

M4BL, Movement for Black Lives. “What Are Reparations? .” M4BL.Org, Movement 4 Black Lives, https://m4bl.org/wp-content/uploads/2020/11/defining-reparations.pdf.

Mentz, Steve. “Enter Anthropocene, C.1610.” Arcade A: A Digital Salon , Stanford Humanities Center, Enter Anthropocene, c.1610 | Stanford Humanities Center.

“The ICC At A Glance .” International Criminal Court, International Criminal Court, https://www.icc-cpi.int/.