Ecocide: Filling in the Environmental Gap in Current International Law

• Date: 01 July 2024

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2024 e Institute for Migrant Rights Press

EcocidE: Filling in thE

EnvironmEntal gap in currEnt

intErnational law

Avery K. Pierce

University of San Diego School of Law

averypierce@sandiego.edu

is article explores the pressing need for the amendment of the Rome

Statute to incorporate a distinct crime of ecocide. As environmental deg-

radation and climate change escalate globally, there is an imperative to

hold individuals and entities accountable for acts that cause widespread

harm to ecosystems and the planet. Drawing on the precedent set by the

United States and its pivotal role in shaping contemporary understand-

ings of ecocide, this article argues for the codication of ecocide within

international criminal law. e article examines the eorts of the Inde-

pendent Expert Panel in dening ecocide, particularly emphasizing the

inclusion of an intent element crucial for eective implementation. By

analyzing case studies and legal precedents, it demonstrates the practical

feasibility of integrating ecocide into the Rome Statute framework. Fur-

thermore, the article highlights the potential deterrent eect of criminal-

izing ecocide on corporations and state actors engaged in environmental-

ly destructive activities. Ultimately, the inclusion of ecocide as a distinct

crime within the Rome Statute not only aligns with evolving global norms

regarding environmental protection but also represents a signicant step

towards ensuring justice for future generations and the preservation of

our planet’s ecological integrity.

Keywords: Environmental Conservatism, Criminal Law, International Law Making,

Legal Codication.

XI Indonesian Journal of International & Comparative Law 195-225 (July 2024)

196

Pierce

INTRODUCTION

Ecocide is the direct physical destruction of a territory which can

… lead to the death of humans and other beings. Ecocide can

and oen does lead to cultural damage and destruction; and the

direct destruction of a territory can lead to cultural genocide. For

example, destroying an indigenous people’s territory can critically

undermine its culture, identity and way of life.1

In the wake of our increasing awareness of the profound ecological

challenges facing our planet, the imperative for individual eorts to

mitigate carbon footprints is undeniable. Yet, a glaring gap emerges

when governments, shielded from domestic civil liability, embark on

the obliteration of entire ecosystems in foreign territories. is poses a

critical question: do these actions, executed as part of military strategy,

enjoy immunity from international scrutiny and accountability? It is

illogical to expect a state engaging in such egregious environmental de-

struction to self-regulate.2 Remarkably, there exists no current interna-

tional law specically criminalizing mass environmental devastation.

In the absence of such legal frameworks, the tragedy of the commons

proliferates unabated. “[P]ollution does not recognize political or geo-

graphical boundaries, but aects territories, countries, regions and

people beyond its point of origin.”3 e pervasive nature of pollution

underscores the need for concerted action. Bridging political divides,

the international community must codify ‘ecocide’ as an international

crime, creating a deterrent against “destructive behavior that has creat-

ed the ecological crisis we now face.”4

As we contemplate the contours of an international crime of

ecocide, it is essential to draw distinctions. Governments must be dened

1. A G . ., T E P: "E   M

F C A P"  ().

2. See Int’l Law Comm’n, Rep. of the Work of Its Forty-Eighth Session, U.N. Doc.

A/CN.4/SER.A/1996/Add.1 (Part 1) (1996) (“[E]nvironmental crimes cannot

be adequately dealt with by domestic jurisdictions[.]”).

3. G . ., supra note 1 at 5.

4. Id. at 4.