Authored By: Carola Borriero
University of Edinburgh
Introduction
International environmental law has produced mechanisms regarding prevention, transboundary harm, and state responsibility, as environmental destruction has become an increasingly significant challenge for international law. International criminal law provides an even more restricted protection and recognition of such an issue. The Rome Statute of the International Criminal Court (‘Rome Statute’) explicitly criminalises specific environmental destruction practices that occur during international armed conflict, but it fails to recognise environmental destruction as an international crime in itself.[1]
In 2024, an amendment to the Rome Statute was proposed by Vanuatu, with the support of Samoa and Fiji, to introduce ecocide as the fifth core crime of the International Criminal Court (‘ICC’).[2] This proposal mirrors the argument that serious environmental destruction should be condemned as much as genocide, war crimes, crimes against humanity, and aggression, which has recently been gaining traction.
However, the debate is not simply limited to whether ecocide should be criminalised to such a degree; it extends to whether or not the ICC is the right institution to prosecute it. This article argues that the ICC is not the best institutional forum to prosecute ecocide, regardless of it deserving international criminalisation.
Existing International Legal Framework
Environmental harm and State Responsibility
Traditionally, international environmental law has addressed grave environmental destruction through state responsibility instead of individual criminal accountability. The International Court of Justice (‘ICJ’) in Pulp Mills on the River Uruguay case established that an environmental impact assessment is required under general international law when the proposed industrial activity risks causing substantial transboundary environmental impact.[3] This requirement was then linked to duties of vigilance, prevention and customary duties of due diligence by the ICJ.[4]
In Certain Activities Carried Out by Nicaragua in the Border Area, the Court held that environmental damage itself is compensable. Such compensation may involve the costs of the loss of environmental goods and services as well as the costs of restoring the damaged surroundings.[5] Consequently, the ICJ awarded Costa Rica environmental damage remuneration resulting from Nicaragua’s illicit operations.
Although both cases reflect a growing acknowledgement of environmental harm and its increasing international legal weight, consequences remain limited to state responsibility, and neither decision has set precedent for individual criminal liability. In the ecocide debate, this distinction is crucial: international environmental law may identify environmental destruction as illegal and require compensation, but it does not necessarily provide avenues to hold individual decision-makers or corporations criminally liable.
Environmental harm and the Rome Statute
Under Article 8(2)(b)(iv) of the Rome Statute, it is illegal to intentionally cause widespread, long-term, and severe environmental destruction that is clearly excessive compared to the concrete overall military advantage anticipated.[6]
Nonetheless, this provision has significant constraints. Firstly, it does not codify ecocide as a crime in itself, but it is categorised within the law of war crimes. Second, it concerns harm resulting from an ‘attack’ in relation to international armed conflict, not during peacetime. Additionally, the established threshold must be met, as the damage must be widespread, long-term, and severe. Lastly, the harm must be clearly excessive in relation to the anticipated military advantage. These limitations were also identified by the ICC Office of the Prosecutor in its 2024 Policy on Environmental Crimes under the Rome Statute.[7]
The current international legal framework does not leave environmental harm completely unregulated; however, its shortcomings derive from the absence of an international crime that is applicable despite the lack of armed conflict. This gap specifically is what the proposed crime of ecocide would attempt to mitigate.
Ecocide at the ICC
Vanuatu’s proposal to introduce ecocide as the fifth crime prosecutable by the ICC is not illogically founded. The ICC already has international criminal justice infrastructure with investigators, prosecutors, judges, and mechanisms to facilitate international cooperation, so founding a new institution would be politically and financially demanding. Adding ecocide to the Rome Statute seems the most efficient and direct approach to extend criminal liability in the international space.
The ICC can deliver increased individual accountability. While international environmental law tends to deal with consequences limited to State responsibility, international criminal law can attribute responsibility to the direct perpetrators who made the relevant choices. Focusing solely on state responsibility risks obscuring the guilty parties; instead, the ICC could individually hold them liable.
The ICC advantages are evident: it has internationally recognised legitimacy, an already established jurisdiction over individuals accountable for the most serious crimes, and has the potential to make ecocide applicable in practice. The fifth crime proposal follows this reasoning precisely. Nevertheless, these benefits do not necessarily prove the ICC to be the best institution to prosecute ecocide.
III. Why the ICC may be unfit
Corporate responsibility issue
The most important concern is the ICC’s jurisdiction over perpetrators. Under Article 25 of the Rome Statute, the Court’s jurisdiction extends to natural persons and not corporations as juridical persons.[8] The Prosecutor’s Environmental Crimes 2024 Policy expressly recognises that corporations cannot be prosecuted before the ICC even though individual corporate officers can be prosecuted where the requirements of ICC jurisdiction and individual criminal responsibility are satisfied.[9]
In the context of ecocide, grave environmental destruction may be caused not by an individual’s conduct, but rather by intricate corporate structures including boards, subsidiaries, contractors, executives and investment decisions. The consequential harm is, therefore, a result of organisational decision-making and not an easily identifiable perpetrator and act.
This does not signify that corporate executives are not prosecutable: as Scheffer points out, corporate officers could already be held accountable under the Rome Statute.[10] The difficulty derives from the fact that the ICC cannot attribute criminal liability directly to the corporation whose structure produced environmental degradation. To this, Scheffer also adds that extending the ICC’s jurisdiction to juridical persons would involve largely amending the Rome Statute.[11]
The issue at hand is one of institutional fit. Ecocide could involve multinational corporations prosecuted by an institution with a keen focus on individual criminal accountability. The ICC would represent a mechanism that criminalises ecocide, but that fails to impose criminal responsibility upon guilty legal persons. This may, yet again, reproduce an accountability gap.
Complementarity and environmental harm
Another significant concern is the ICC’s principle of complementarity. Article 17 of the Rome Statute states that, unless a specific State with jurisdiction is unwilling or unable to conduct proceedings, a case is generally inadmissible when it is being genuinely investigated or prosecuted by that State.[12] As a result, the ICC is only intended to complement and not replace national proceedings.
Complementarity may be proven problematic due to the transnational nature of ecocide. National authorities where the crime occurred have primary responsibility for investigating and prosecuting within their jurisdiction, but determining which State should investigate would be challenging when environmental drawbacks, decision-making, and conduct are geographically different. Moreover, singular domestic authorities may not have the resources, willingness, or enough political independence to prosecute actors with important economic standing.
Hence, complementarity does not ensure an accountability gap reduction. At times, it may reinforce dependence on national enforcement systems that face the need to tackle transnational crimes but are unable to do so.
Jurisdictional Limitations
Jurisdictional architecture also presents an obstacle. Article 12 stipulates that the Court may exercise jurisdiction if the wrongful conduct occurred on the territory of a State Party or when the accused is a national of a State Party. Article 13 then further identifies the mechanisms through which the Court may exercise such jurisdiction: State Party referral, United Nations Security Council referral, and prosecutor-initiated proceedings.[13]
This framework was elaborated to fit international crimes perpetrated by identifiable individuals within particular national contexts and territorial jurisdictions. Ecocide paints a considerably more complex picture, with environmental harm tending to cross borders and multinational corporations expanding into multiple varied jurisdictions.
The problem is not that the ICC is unable to prosecute transnational crimes, but rather that identifying the primary jurisdiction would be particularly complicated. One environmentally harmful project could involve more States of nationality, corporate, and territorial connection. For this reason, a specialised model should be designed around the specific characteristics of criminal environmental destruction.
Ecocide as an Atrocity crime?
Lastly, the ICC was established to prosecute crimes traditionally accepted as the gravest violations of human rights, international peace and security. Its main objective is to protect the environment, which can have catastrophic consequences for our ecosystems, ecological processes, human health, and livelihoods. However, ecocide is distinct from atrocity crimes that are characteristically defined by mass violence against human populations.
The question remains not whether ecocide is to be held in the same regard as genocide, war crimes, crimes against humanity, and aggression, but whether the ICC should widen its scope to include environmental criminality.
Beyond the ICC
The Council of Europe Convention on the Protection of the Environment through Criminal Law (CETS No 228) shows why the ICC is unfit to prosecute crimes of environmental nature.[14] Article 2 explicitly applies to both peacetime and war contexts.[15] It codifies a range of environmental crimes and offences, with Article 31 creating a particularly grave offence when intentional actions cause irreversible, widespread and substantial damage, or long-lasting, widespread substantial damage, to an ecosystem of considerable size or environmental value.[16]
The Convention also tackles the issue of corporate responsibility. Article 34 requires States to provide criminal, civil or administrative liability of legal persons for crimes committed for their benefit by persons in leading positions, which simultaneously provides for liability in cases of inadequate control facilitating the crime.[17]
Furthermore, the convention’s Article 5 pushes Parties to appoint specialised prosecutors, investigation units and judges for environmental offences.[18] Article 40 also stipulates that international cooperation shall be extensive regarding investigation, prosecution, extradition, mutual legal assistance and enforcement.[19] Instead of solely focusing on a single international court to determine criminal environmental accountability, the convention creates common standards across multiple national criminal systems and underlines the value of specialisation.
This framework represents a more suitable institutional architecture: an international convention with common definitions for grave environmental offences, along with minimum standards of corporate responsibility, jurisdiction, cooperation and criminalisation, combined with domestic enforcement harmonisation. In the future, this model could then create a transnational oversight mechanism without making the ICC an international environmental law court.
It is true, however, that this structure would still create its own challenges. Creating a new treaty means lengthy negotiations and ratifications, all while the ICC already has legitimacy and infrastructure that this model would initially inevitably lack. Despite the disadvantages, the architectural benefits of making a framework specific to international environmental criminal law are still substantial.
Conclusion
Overall, the proposal to amend the Rome Statute to include ecocide as a fifth crime would be able to address a significant accountability gap. The ICC presents clear advantages such as infrastructure, international criminal expertise, and international legal legitimacy, but it is still severely limited by its natural-person jurisdiction, complementarity principle, and jurisdictional structure. These are prominent obstacles when it comes to dealing with environmental crimes’ inherent transnational character, which do not render the ICC the most appropriate institution to prosecute ecocide.
On the other hand, the ICC’s role should not be entirely rejected; instead, there should be a sharper distinction between a standalone international regime for ecocide and environmental crimes that fall within the Court’s existing jurisdiction. As demonstrated by the Council of Europe Convention, a specialised international framework with cooperation and domestic criminal enforcement is a model that is already gaining traction within international criminal environmental law. It is not only about the creation of a fifth crime, but about a suitable institution that can effectively prosecute it.
Bibliography
International Treaties and Conventions
Council of Europe, Convention on the Protection of the Environment through Criminal Law (CETS No 228, 2025).
Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90.
International Court of Justice Cases
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) (Compensation) [2018] ICJ Rep 15.
Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) [2010] ICJ Rep 14.
International Criminal Court / Institutional Materials
Office of the Prosecutor, International Criminal Court, Policy on Environmental Crimes under the Rome Statute (December 2024).
Republic of Vanuatu, ‘Proposal for an Amendment to the Rome Statute of the International Criminal Court: Ecocide’, ICC-ASP/23/26 (2024).
Journal Articles
Scheffer D, ‘Corporate Liability under the Rome Statute’ (2016) 57 Harvard International Law Journal 35.
Online Sources
Karsu Ö, ‘Council of Europe Opens Convention on Environmental Crime for Signature’ (ASIL, 10 December 2025) https://asil.org/ilib/council-europe-opens-convention-environmental-crime-signature accessed 6 September 2026.
[1] Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90, art 8(2)(b)(iv) (‘Rome Statute’).
[2] Republic of Vanuatu, ‘Proposal for an Amendment to the Rome Statute of the International Criminal Court: Ecocide’, ICC-ASP/23/26 (2024,).
[3] Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) [2010] ICJ Rep 14, 82–83 [204].
[4] ibid 83 [204]–[205].
[5] Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) (Compensation) [2018] ICJ Rep 15, 26–28 [41]–[43].
[6] Rome Statute (n 1) art 8(2)(b)(iv).
[7] Office of the Prosecutor, Policy on Environmental Crimes Under the Rome Statute (International Criminal Court, December 2024) 20, para 36.
[8] Rome Statute (n 1) art 25.
[9] Office of the prosecutor (n7) 12, para 19.
[10] David Scheffer, ‘Corporate Liability under the Rome Statute’ (2016) 57 Harvard International Law Journal 35, 36.
[11] ibid, 38-39.
[12] Rome Statute (n 1) art 17.
[13] ibid arts 12–13.
[14] Council of Europe, Convention on the Protection of the Environment through Criminal Law (CETS No 228, 2025), arts 53–54. The Convention was opened for signature on 3 December 2025 and requires ten ratifications, including eight member States, for entry into force.
[15] ibid art 2(2).
[16] ibid art 31; Özge Karsu, ‘Council of Europe Opens Convention on Environmental Crime for Signature’ (ASIL, 10 December 2025) accessed 6 September 2026.
[17] ibid art 34(1)–(4).
[18] ibid art 5(5).
[19] ibid art 40.
