THE FIFTH CRIME: CAN ECOCIDE SAVE THE PLANET WHERE TREATIES FAILED?
DOI:
https://doi.org/10.67874/ijlcs.64Keywords:
Ecocide, International Criminal Law, Environmental Governance, Paris Agreement, Convention on Biological Diversity, International Criminal Court (ICC), Soft Law, Anthropocentrism, Ecocentrism, Environmental Accountability, Rome StatuteAbstract
This research article explores the new theory of ecocide as a possible fifth international crime and discusses whether it is appropriate to offer an effective legal solution to the environmental annihilation where the current international treaties have not worked. The paper starts by following the historical development of ecocide, starting in the 1970s due to its impact on the environment, and the application of Agent Orange in the Vietnam War, to the 2021 legal definition offered by the Independent Expert Panel (IEP) to potentially be included in the Rome Statute of the International Criminal Court. It provides a critical examination of the weakness of existing soft-law environmental systems, especially the Paris Agreement and the Convention on Biological Diversity, in the light of how the lack of sanctions to enforce it and the lack of criminal culpability to individuals has enabled both state and non-state actors to view environmental harm as a cost of doing business. The article also discusses the argument of whether ecocide meets the threshold of gravity needed to qualify as an international crime and whether it fits within the doctrinal framework of the current crimes of international criminal law. It also discusses how the International Criminal Court can be used as a permanent adjudicatory body that can enforce ecocide by using meaningful sentencing policies, and therefore overcoming the deficiencies of administrative penalties. The study also intersects with the wider paradigm shift in international law towards an ecocentric viewpoint, convinced that criminalisation of ecocide is a paradigm shift that would lead to the acknowledgment of the inseparable worth and rights of the ecosystem. Lastly, the paper discusses the critical issues and practical challenges that accompany the idea of making ecocide an international crime, and concludes that the challenges, instead of making it irrelevant, indicate the need to adopt more powerful and enforceable environmental protection mechanisms.
References
Paul J. Crutzen, ‘Geology of Mankind’ (2002) 415 *Nature* 23.
Intergovernmental Panel on Climate Change, *Sixth Assessment Report* (2023).
Paris Agreement, 12 December 2015, 3156 UNTS 79; Convention on Biological Diversity, 22 May 1992, 1760 UNTS 79.
Daniel Bodansky, ‘The Paris Climate Change Agreement: A New Hope?’ (2016) 110 *American Journal of International Law* 288.
Lavanya Rajamani, ‘The 2015 Paris Agreement: Interplay Between Hard, Soft and Non-Obligations’ (2016) 28 *Journal of Environmental Law* 337.
Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002).
Independent Expert Panel for the Legal Definition of Ecocide, *Commentary and Core Text* (Stop Ecocide Foundation 2021).
Philippe Sands, ‘Climate Change and the Rule of Law: Adjudicating the Future in International Law’ (2016) 28 *Journal of Environmental Law* 19.
Polly Higgins, *Eradicating Ecocide: Laws and Governance to Prevent the Destruction of Our Planet* (Shep Walwyn 2010).
Arthur H Westing, *Environmental Consequences of the Second Indochina War* (Stockholm International Peace Research Institute 1982).
Protocol Additional to the Geneva Conventions of 12 August 1949 (Protocol I), 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978), arts 35(3) and 55.
Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002), art 8(2)(b)(iv).
Loi n° 2021-1104 du 22 août 2021 portant lutte contre le dérèglement climatique et renforcement de la résilience face à ses effets (France).
Paris Agreement, 12 December 2015, 3156 UNTS 79, art 4.
Convention on Biological Diversity, 22 May 1992, 1760 UNTS 79.
John H Knox, ‘Linking Human Rights and Climate Change at the United Nations’ (2009) 33 *Harvard Environmental Law Review* 477.
Philippe Sands, *Principles of International Environmental Law* (3rd edn, Cambridge University Press 2012).
Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002).
Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002), arts 5–8 bis.
Philippe Sands, ‘Climate Change and the Rule of Law: Adjudicating the Future in International Law’ (2016) 28 *Journal of Environmental Law* 19.
Independent Expert Panel for the Legal Definition of Ecocide, *Commentary and Core Text* (Stop Ecocide Foundation 2021).
Christopher D Stone, ‘Should Trees Have Standing? Toward Legal Rights for Natural Objects’ (1972) 45 *Southern California Law Review* 450.
Andrew Clapham, ‘The Question of Jurisdiction Under International Criminal Law over Legal Persons: Lessons from the Rome Conference on an International Criminal Court’ (2000) 11 *Criminal Law Forum* 157.
William A Schabas, *An Introduction to the International Criminal Court* (5th edn, Cambridge University Press 2017).
Stockholm Declaration on the Human Environment, UN Doc A/CONF.48/14/Rev.1 (16 June 1972).
Arne Naess, ‘The Shallow and the Deep, Long-Range Ecology Movement’ (1973) 16 *Inquiry* 95.
Polly Higgins, *Eradicating Ecocide: Laws and Governance to Prevent the Destruction of Our Planet* (Shep Walwyn 2010).
Christopher D Stone, ‘Should Trees Have Standing? Toward Legal Rights for Natural Objects’ (1972) 45 *Southern California Law Review* 450.
Lavanya Rajamani, *Differential Treatment in International Environmental Law* (Oxford University Press 2006).
Downloads
Published
Issue
Section
License
Copyright (c) 2026 Dhriti Mahajan (Author)
This work is licensed under a Creative Commons Attribution 4.0 International License.
Authors retain copyright of their work and grant the International Journal of Law, Culture & Society (IJLCS) the right of first publication. All published articles are distributed under the Creative Commons Attribution 4.0 International (CC BY 4.0) License, which permits unrestricted use, distribution, adaptation, and reproduction in any medium, provided the original author(s) and source are properly credited. Authors are responsible for ensuring that submitted work is original and does not infringe the rights of others.
