International Criminal Law and Ecological Damage: Ecocide vis-à-vis Crimes against Humanity

Crimes against humanity is the most broadly applicable crime amongst the four international crimes codified in the Rome Statute of the International Criminal Court. However, due to the strictures placed on the scope of crimes against humanity by its formal legal definition, the crime is unable to capture corporately wrought ecological damage. This is problematic given widely circulating claims that humanity is approaching the brink of ecological collapse. This essay appraises the innovative features of the recently published draft definition for ecocide as a novel international crime in order to mount a critique of the limited scope of crimes against humanity. It argues that the ecocide proposal can open up a window on the narrow range of perpetrators and types of violence that qualify as commissions of crimes against humanity. To demonstrate this point, the paper closely examines the crime’s context requirement and especially its policy element as both interact with the Rome Statute’s overall mens rea requirements. Taken together, these stipulations privilege states and state-like militant non-state actors who dispense policy-led violence with (in)direct intent. Ecocide, by contrast, is often committed by corporate actors with negligence or recklessness. Compared to crimes against humanity, the draft definition of ecocide significantly widens the ambit of international criminal responsibility by remaining silent on the kind of actor who can commit the crime and by articulating a comparatively lower mens rea standards of recklessness. The paper concludes by bringing to bear its insights on reflections on the relationship between individual intent, human agency and ecological damage.