Ecocides: A Realistic Implementation Strategy

I – Ecocides

The idea of establishing ecocide as a crime has been under discussion for over half a century. ¹ However, to date, we still lack a universally accepted legal definition that can address all the challenges posed by environmental protection on the planet. It also appears from academic debate and existing crimes of ecocide in various legal systems that it would be more appropriate to speak of ecocides rather than ecocide, i.e., under the same name, we find a set of serious criminal behaviors related to the environment, whose perpretators are states and/or corporations.

The first type involves environmental destruction associated with armed conflict, which started with the Vietnam War and which we are bitterly reliving today with Ukraine. ² The Rome Statute addresses this initial concept of ecocide in its Article 8 § 2 b) iv), which punishes acts of war that intentionally cause environmental damage that is disproportionate to military objectives. ³ The description of damage as “widespread, long-term, and severe” reflects a result that, with minor variations, has become broadly accepted and is included in most definitions of ecocide.

However, since international humanitarian law is clearly anthropocentric, there is little hope that this concept can be applied today. There are no normative references that provide the precision required by criminal law to determine under what circumstances an attack is disproportionate to the military objectives pursued ⁴ . Additionally, this concept only applies to international armed conflicts.

Most proposals address a second type of ecocide, which involves causing significant, long-lasting, and widespread harm to an ecosystem, the environment, or the quality of soil, water, or air. Coastal pollution from oil spills, such as those in the Gulf of Mexico, the Erika, or the Prestige, fall into this category. Many national legal systems and several academic initiatives already define a form of ecocide that matches this kind of environmental disaster. Most of these, aiming to punish or deter the most severe actions—and therefore imposing harsher penalties—require the behavior to be intentional, although some laws consider negligence or malice as sufficient.

The third type of ecocide would fall under what criminology calls States corporate crimes ⁵ : companies may take part in government efforts to destroy or diminish large forest areas or, in another version, a weak and corrupt government may authorize companies to extract natural resources by damaging natural environments. This type of ecocide has not been included in national laws and has also been overlooked by most theoretical proposals. This omission is especially noteworthy when considering that these are the most serious assaults on the environment and they stem from policies of organizations, whether a state or a large corporation. ⁶ This kind of ecocide also aligns with forms of macrocriminality that are structurally similar to those seen in crimes against humanity or genocide.

Finally, it is also important to highlight that creating an ecocide crime is often connected to societal demands to fight climate change. ⁷ The connection makes sense symbolically, considering the expressive power of this concept and the need for a criminal law response to climate change. ⁸ However, it is not technically accurate to reduce climate change to a problem of environmental pollution. The environment and the climate are two protected interests with distinct characteristics, so the behaviors deserving criminalization are also different. Criminal law intervention to punish behaviors impacting the climate, which could eventually be included in a future criminal law on climate, requires different criminalization techniques than those used in environmental criminal law. ⁹

II – The process of harmonizing the crime of ecocide: actors and norms

Any discussion about the debate on the ecocide over recent decades would be incomplete without also examining the dynamics, forces, and key players involved. These include academics and academic institutions, as well as activists; both groups have proposed important legislative ideas. There are also national lawmakers who have added ecocide crimes to national laws in various contexts and in successive waves.

The recognition of ecocide in national law started in Vietnam in 1970 and then spread to Eastern European countries. More recently, it has been incorporated into the penal codes of France and Belgium. While the nomen iuris remained the same during this wave, the content and core elements of ecocide have evolved: this process is similar to how the crime against humanity originated in the London Charter, which initially required a connection to armed conflict but later evolved to no longer require this condition.

International organizations have also played a significant role in this area. During the 1970s and 1980s, the Sixth Committee of the United Nations formulated definitions for this concept in the Code of Crimes Against Humanity. ¹⁰ Similarly, in recent years, the Office of the Prosecutor of the International Criminal Court has issued several policy documents focused on the criminal protection of the environment to promote the role of the International Criminal Court. ¹¹

Although related to the broader discussion on climate justice and not specifically to the creation of the crime of ecocide, it is also worth mentioning the activities of the European Court of Human Rights, ¹² the International Court of Justice, ¹³ and several national courts that have issued pioneering decisions on international environmental protection.

More recently, however, the European Union (EU) and the Council of Europe have undeniably taken a leading role. Within these two organizations, it is worth highlighting the momentum provided by the European Parliament ¹⁴ and the Parliamentary Assembly of the Council of Europe ¹⁵ to ensure that the final text of the directive on the protection of the environment through criminal law and the corresponding Council of Europe convention includes a concept that bears a certain “family resemblance” to the crime of ecocide as defined in some countries. ¹⁶ After substantial debate, it is noteworthy that in both texts, this concept is regarded as an aggravated offense rather than a separate offense.

The EU has also expressed its intention to carry out a comprehensive harmonization process. Similar to the 1990s, when the United States collaborated with the Organization for Economic Cooperation and Development (OECD) to expand its groundbreaking law on foreign corrupt practices (Foreign Corrupt Practices Act), the EU and the Council of Europe also worked closely together in this area. The European Commission was given a mandate that allowed it to be the lead negotiator within the Council of Europe. As a result, the Convention mirrors the text of the Directive and aims to extend its scope not only to all Council member states but also to other countries (non-member countries can indeed join Council of Europe Conventions).

This whole set of actors, soft law and hard law standards, academic proposals, policy documents, and more, illustrates the interactions that typically occur, to use Mireille Delmas-Marty’s words, on the path toward criminal law harmonization. ¹⁷ For example, we can see how the significant proposal by Stop Ecocide, led by Philip Sands, ¹⁸ has significantly influenced national legislative processes. We can also point out the French legislature’s decision to diverge from that definition, which itself served as a key element in the drafting of the European and Council of Europe directives.

This entire harmonization process is based on two seemingly distinct axes that are destined to converge: the international and the national level. The debate on ecocide has been and continues to be driven mainly by efforts to establish a crime under international criminal law, either by adding a fifth—and new—autonomous crime to the Rome Statute or by creating a dedicated international criminal court for the environment. Therefore, if the criminalization of ecocide succeeds, it would possess the features of any international crime: no statute of limitations, no immunity before international courts, and universal jurisdiction. In this scenario, ecocide could establish a new phase in international criminal law, shifting focus toward protecting economic and social rights and potentially leading to new criminal offenses beyond the current “Nuremberg model.” ¹⁹

While the international aspect has dominated academic discussion, progress has been made at the national level, where, as we have noted, more legal systems are adopting this concept. However, the definition of these ideas remains part of an ongoing dialogue with international proposals. It is through this interaction that the importance and ultimate significance of the European directive become clear. Positioned within the international (more specifically, regional) realm—the unique harmonization space within the EU—it signifies a strong commitment to the key role of national laws in addressing the most severe examples of transnational environmental crime.

III – The global criminal law strategy

This, in summary, is the current state of affairs regarding the prosecution of ecocide. The missing account is the development of a strategy for the future that is adapted to the new era. Since Trump’s arrival in the White House, international criminal law has been in a particularly fragile state, under attack. Besides sanctions imposed by the United States, there is also the conduct of European countries such as Hungary, Italy, and, to some extent, Germany, which are challenging the authority of the International Criminal Court. In this context, it is not very realistic to insist on making ecocide the fifth fundamental international crime—the creation of which has raised doubts among some scholars. ²⁰ The idea of an international convention on ecocide, establishing a hierarchical enforcement system under the authority of an international criminal court, is politically unrealistic today.

However, the strategy to be followed is not solely national but is part of global criminal law: ²¹ a multi-level post-state governance system that aims to protect international legal assets, such as the environment. The term “governance” includes all activities through which various actors, as well as public and private institutions, combat certain forms of transnational crime. To make this approach more effective, it is crucial to remember that we are not dealing with one “ecocide,” but with “ecocides,” meaning various serious forms of environmental crime, ranging from protecting strategically important sites from a global perspective (such as the Amazon or Antarctica) to safeguarding biodiversity, and involving criminal phenomena as grave as trafficking in protected species, illegal mining, or illegal fishing that cause environmental damage. It is true that ecocide, which has become an international crime, stands at the top of the pyramid in international environmental criminal law. However, the fact that this goal may seem unachievable in the current political climate should not cause us to lose sight of the bigger picture, nor should it diminish the accomplishments made or the potential for future progress.

In this alternative—and, where applicable, complementary—model of criminal law internationalization, collaboration and teamwork among different actors and standards are essential.

For example, the guidance documents issued by the Office of the Prosecutor of the International Criminal Court ²² can act as catalysts for reporting the most serious cases of environmental crime: those that constitute war crimes or are akin to crimes against humanity. It is still too soon to assess the effectiveness of these prosecution policies, but one key aspect will definitely be the search for strategic allies, just like with the ICC and Eurojust in the context of the war in Ukraine. ²³

NGOs specializing in environmental issues and the scientific community are also called upon to play a key role. For example, it would be very helpful for them to collaborate in forming an institution, which could be private, capable of providing technical and legal assistance to governments or communities in need. This would be an essential tool in this effort. The proposal by the research group led by Laurent Neyret ²⁴ on eco-crimes and ecocide offered an interesting model: the Green, ²⁵ whose functions can serve as an example. In the area of corruption and asset recovery, we have a model that can also be used: the Basel Institute on Governance, which offers high-quality technical assistance to governments and judges in recovering assets linked to corruption. An institution that would work with governments, judges, and police forces in countries with limited capacity to prosecute major environmental crime cases would be very useful. Of course, it is important to emphasize the value of strategic litigation, such as that carried out in France by Sherpa, Notre Affaire à Tous, and Intérêt à Agir, or in Germany by the Center of Constitutional and Human Rights.

As already noted, the impetus provided by the EU directive and the Council of Europe Convention to national standards gives national legislators a significant role to play. In this regard, the recent UCLA initiative to provide them with guidance on the classification of ecocide is invaluable. ²⁶

When implementing the directive, special attention should be given to establishing rules of jurisdiction that allow for its extraterritorial application. The ability, as outlined in the directive, to extend jurisdiction to a legal person with its registered office in an EU country when the criminal offense occurs abroad is notably significant. Jurisdiction is exercised regardless of the perpetrator’s nationality, embodying a principle of active personality specific to the legal entity that is independent of the individual’s nationality. ²⁷ This aims to require European companies to uphold environmental standards worldwide, no matter where they operate. However, for EU countries to prosecute such offenses, the condition of double criminality must be satisfied, which represents a significant obstacle in states that do not restrict the exploitation of their natural resources.

In this post-national multilateralism model, the Council of Europe should play a decisive role, similar to that of the OECD in the fight against corruption. Besides promoting the signing of its Convention, it should encourage public-private cooperation and seek allies among countries willing to lead the fight against environmental crime. The advantage, unthinkable just a few years ago, is that we now have two hard law standards, the Directive and the Convention, which represent the first form of international environmental criminal law that, in addition to the concept of ecocide, addresses other types of serious transnational environmental crimes such as trafficking in waste, protected species, ozone-depleting gases, products from illegal deforestation, ship dismantling, and more. The Directive and the Convention also address issues characteristic of environmental criminal law, such as the criminal liability of legal persons, the inclusion of which is essential for developing reparation models, for example, based on restorative justice settings. ²⁸

IV – Conclusion

In conclusion, returning to Mireille Delmas Marty and her inspiring analysis of the forces that play a leading role in harmonization processes, it is now necessary to identify which countries will choose to take on the role of the main actor. If the strategy is to depend on national criminal law, no matter how active international organizations may be, without their cooperation, little can be accomplished. Until now, the United States has led harmonization efforts, from drug trafficking to corruption, which has sometimes caused this harmonization to be mistaken for an Americanization of criminal law. ²⁹ The key question now is which countries are able to develop standards and procedures against serious environmental crimes based on their national laws. The bigger question for the future, as in other areas of international relations, is whether there are countries other than the United States that have the capacity to undertake this task.

1. On the criminalisation of ecocide, see R A Falk, ‘Environmental Warfare and Ecocide — Facts, Appraisal, and Proposals’ (1973) 4 Bulletin of Peace Proposals; R de Vicente Martínez, Hacia un Derecho penal internacional medioambiental: catástrofes naturales y ecocidio in D Crespo and AN Martín (eds), Derecho penal económico y Derechos humanos (Valencia 2018); M A Gray, ‘The International Crime of Ecocide’ (1996) 26 California Western International Law Journal 218 ff; P Higgins, Eradicating Ecocide: Laws and Governance to Prevent the Destruction of our Planet (London 2010) 458; A Nieto Martín, ‘Hacia un Derecho penal internacional del medio ambiente’ (2012) 16 Anuario de la Facultad de Derecho de la Universidad Autónoma de Madrid 137 ff; L Neyret (ed), Des écocrimes à l’écocide (Bruylant 2015) esp 87–263; E Fronza and N Guillou, ‘Vers une définition du crime international d’écocide’ in L Neyret (ed), Des écocrimes à l’écocide (Bruylant 2015) 126 ff; E Fronza, ‘Sancire senza sanzionare? Problemi e prospettive del nuovo crimine di ecocidio’ Legislazione penale (17 March 2021)
2. L Neyret, ‘Réveiller l’écocide’ (2023) 4 Revue de Science Criminelle et de droit pénal comparé 767 ff; S Maruf, ‘Environmental Damage in Ukraine as Environmental War Crime under the Rome Statute: The Kakhovka Dam Breach in Context’ (2024) 22(1) Journal of International Criminal Justice 99; V Molenti, ‘The Long Road to the Criminalization of Ecocide: Legal Issues and Dynamics of Regulatory and Social Effectiveness’ (2021) 4 Diritto penale contemporaneo.
3. For commentary, see KJ Heller and JC Lawrence, ‘The Limits of Article 8(2)(b)(iv) of the Rome Statute: The First Ecocentric Environmental War Crime’ (2007) 20 Georgetown International Environmental Law Review; S Freeland, Addressing the Intentional Destruction of the Environment During Warfare Under the Rome Statute of the International Criminal Court (Intersentia 2015); M Gillett, ‘Eco-Struggles. Using International Criminal Law to Protect the Environment During and After Non-International Armed Conflict’ in C Stahn, JS Easterday and J Iverson (eds), Environmental Protection and Transitions from Conflict to Peace (OUP 2017) 234; H Brady and D Re, ‘Environmental and Cultural Heritage Crimes: The Possibilities Under the Rome Statute’ in M Bohlander, M Böse, A Klip and O Lagodny (eds), Justice Without Borders: Essays in Honour of Wolfgang Schombourg (Brill 2018) 129
4. Recently, see International Committee of the Red Cross, Guidelines on the Protection of the Natural Environment in Armed Conflict (2020). Several proposals have been put forward to include ecocide among the five core crimes. See, for example, Republic of Maldives, Written Statement, 18th session of the Assembly of States Parties to the Rome Statute of the International Criminal Court (3 December 2019) 2; Republic of Vanuatu, Statement, 18th session of the Assembly of States Parties to the Rome Statute of the International Criminal Court (3 December 2019) 3–4; Kingdom of Belgium, Statement, 19th session of the Assembly of States Parties to the Rome Statute of the International Criminal Court (14–16 December 2020) 4
5. RC Kramer, RJ Michalowski and D Kauzlarich, ‘The Origins and Development of the Concept and Theory of State-Corporate Crime’ (2002) 48(2) Crime & Delinquency 263; D Whyte, ‘Regime of Permission and State Corporate Crime’ (2014) 3(2) State Crime Journal 237; A Nieto Martín and M Muñoz de Morales, ‘Introduction’ in A Nieto Martín, M Muñoz de Morales and J Dopico (eds), Vertes et justes : responsabilité pénale et diligence raisonnable dans les organisations multinationales, vol I (BOE 2025) 18 ff
6. A Nieto Martín, ‘Le droit pénal international comme instrument de gouvernance mondiale’ in G Giudicelli and others (eds), Cheminer avec Mireille Delmas-Marty. Mélanges ouverts en l’honneur de Mireille Delmas-Marty (Mare & Martin 2022)
7. L Arenal Lora, ‘El crimen internacional de ecocidio: respuesta normativa al problema global del cambio climático’ in Z Cabot, S Pallares and C Marullo (eds), La lucha en clave judicial contra el cambio climático (2022)
8. The process of criminalization requires a legal definition. The symbolic and communicative function is not sufficient. Francoise Tulkens emphasizes the importance of a precise definition of the crime that is consistent with the principle of legality. See Françoise Tulkens, ‘Quel est le contexte juridique du vrai-faux “procès” de Monsanto?’ Le Monde (16 October 2016); L d’Ambrosio, ‘La codification de l’écocide en droit français : l’urgence et le symbole’ (2025) 1 Revue de science criminelle et de droit pénal compare.
9. On this concept, see J Satzger and N von Maltitz, Klimastrafrecht: Die Rolle von Verbots- und Sanktionsnormen im Klimaschutz (Nomos 2024); A Nieto Martín, ‘No mires arriba: la respuesta del Derecho penal a la climático’ (2022) 26 Anuario de la Facultad de Derecho de la Universidad Autónoma de Madrid (AFDUAM).
10. United Nations, Report of the International Law Commission on the Work of Its Forty-Eighth Session (6 May–26 July 1996).
11. International Criminal Court, Policy Paper on Case Selection and Prioritization (15 September 2016) para 41; International Criminal Court, ‘The Office of the Prosecutor launches public consultation on a new policy initiative to advance accountability for environmental crimes under the Rome Statute’ (2024). For commentary, see R Pereira, ‘After the ICC Office of the Prosecutor’s 2016 Policy Paper on Case Selection and Prioritization: Towards an International Crime of Ecocide?’ (2020) 31(2) Criminal Law Forum 179.
12. Verein KlimaSeniorinnen Schweiz and Others v Switzerland App no 53600/20 (ECtHR, 9 April 2024).
13. ICJ, Advisory Opinion on Obligations of States in Respect of Climate Change (23 July 2025)
14. European Parliament, ‘Resolution of 20 January 2021 on Human Rights and Democracy in the World and the European Union’s Policy on the Matter, Annual Report 2019 (2020/2208(INI))’; V Molenti, ‘La lunga strada della criminalizzazione dell’ecocidio: questioni giuridiche e dinamiche di effettività normativa e sociale’ (2021) 4 Diritto penale contemporaneo.
15. Directive (EU) 2024/1203 of the European Parliament and of the Council of 11 April 2024 on the protection of the environment through criminal law and replacing Directives 2008/99/EC and 2009/123/EC. For commentary, see M Faure, ‘The EU Environmental Crime Directive 2024: A Revolution in EU Environmental Criminal Law?’ (2024) 36(3) Journal of Environmental Law 323
16. Ecocide has become a criminal offense in several countries: Vietnam, Ukraine, Russia, Armenia, Belarus, Moldova, Georgia, Kazakhstan, Kyrgyzstan, Tajikistan, France, and Belgium. These provisions are the result of various dynamics that we have mentioned. The first criminalization coincided with the Vietnam War, and the second, more recent one began in recent years. Today, with the directive, a new dynamic is likely to emerge.
17. M Delmas-Marty, M Pieth, U Sieber and J Lelieur, Les chemins de l’harmonisation pénale (Société de législation comparée 2008).
18. See https://www.stopecocide.earth/legal-definition. NGOs have played a vital role in the movement to criminalize ecocide from the beginning. Notably, Polly Higgins, founder of the Earth Law Alliance, has contributed to defining ecocide. Her definitions can be found in Polly Higgins, Eradicating Ecocide: Laws and Governance to Prevent the Destruction of Our Planet (Shepheard-Walwyn 2010); Id., Ecocide Law, Mission Lifeforce; and also, End Ecocide on Earth; End Ecocide Sweden; Global Alliance for the Rights of Nature. Aside from these efforts, the push for global climate justice continues to grow, as detailed in the Global Climate Litigation Report, UNEP 2020
19. On the continuities with the “Nuremberg model” and the discontinuities that the creation of an international crime of ecocide would imply, see E Fronza, ‘¿Hacia un nuevo Derecho penal económico internacional? El ejemplo del ecocidio’ in Un derecho penal humanista: Libro homenaje al profesor Luis Arroyo Zapatero, vol 2 (2021) 1391 ff
20. Among others, see Kai Ambos, “Protecting the Environment through International Criminal Law?” EJIL:Talk! (29 June 2021)
21. See in particular, A Nieto Martín, Global Criminal Law: Postnational Criminal Justice in the Twenty-First Century (Palgrave Macmillan 2022)
22. In particular, the recent ‘Draft Policy Paper on Environmental Crimes under the Rome Statute’, op. cit
23. A V Marica, ‘La solidaridad de la UE con Ucrania¿una demostración de fuerza? Análisis del papel de Eurojust y Europol en la investigación y enjuiciamiento del núcleo de delitos internacionales (CIC) cometidos por Rusia en Ucrania’ (2023) Revista de Derecho Político 119 267 ff
24. L Neyret (ed), Des écocrimes à l’écocide (Bruylant 2015)
25. The GREEN introduced by the Neyret proposal is a research and investigation group focused on the environment. It serves as a mechanism for examining and reporting acts that constitute ecocide. GREEN exemplifies how we can “imagine” through the law. It is important to note that this concept has been adopted by the Council of Europe’s proposal on the environment.
26. Working Group on the National Criminalisation of Ecocide, Manual for a National Criminalisation of Ecocide (UCLA School of Law 12 February 2025)
27. A Lascuráin and AB Valverde, ‘Champ de compétence: quand les infractions commises par des personnes morales sont-elles poursuivies en Espagne?’ in A Nieto Martín, M Muñoz de Morales and J Dopico (eds), Verdes y justas: responsabilidad penal y diligencia debida en las organizaciones multinacionales, vol I (BOE 2025) 315 ff.
28. T Vormbaum and G Werle, Transitional Justice – The Legal Framework (Springer 2022); A Nieto Martín, ‘Justicia empresarial restaurativa y víctimas restaurativas’ in P Galain and E Saad-Diniz (eds), Responsabilidad empresarial, derechos humanos y la agenda del derecho penal corporativo (2021); A Nieto Martín, ‘Ecocidio y justicia restaurativa: el Derecho Penal Internacional post-Núremberg’ (2020) Almanaque de Derecho.
29. A Nieto Martín, ‘Américanisation ou européisation du droit pénal économique ?’ (2006) Revue de science criminelle et de droit pénal comparé 767