Genocide Modelling as Ladder and Ceiling: Ecocide and the Limits of the Rome Statute

When Arthur Galston coined the term ‘ecocide’ in 1970, the choice to model it on ‘genocide’ was deliberate; the etymological echo was designed to generate political leverage and signal the gravity of environmental destruction caused by the US’ Operation Ranch Hand in Vietnam.

The same analogy that gave ecocide its political traction has also constrained it. More than fifty years later, the genocide model continues to shape how ecocide is imagined, argued for, and drafted. It has functioned as a ladder: elevating ecocide onto the international criminal law arena and into public discourse through statements by figures such as Pope Francis and Paul McCartney. Yet it has also become a ceiling, creating expectations that the Rome Statute, and even the Independent Expert Panel’s definition, cannot fully absorb.

A contested genealogy

Galston’s 1970 coinage of ecocide was designed to transfer genocide’s status as the ‘crime of crimes’ onto environmental destruction in Vietnam. Swedish Prime Minister Olof Palme’s use of the term at the 1972 UN Conference on the Human Environment catapulted it into political discourse, signalling that environmental damage should be considered an international crime akin to genocide. Subsequently, Richard Falk attempted to give it legal structure, advocating for an Ecocide Convention modelled on the Genocide Convention. Falk’s work was later revived by lawyer Polly Higgins, co-founder of Stop Ecocide International (SEI), who from 2010 led the campaign to include ecocide as a ‘fifth crime in the Rome Statute’. Each of these moves reinforced the same equation: environmental destruction of a sufficient scale is morally equivalent to genocide and should be treated accordingly by international law.

Nonetheless, the connection between ecocide and genocide runs deeper than etymology. Lemkin’s original conception of genocide was significantly broader than the 1948 Convention’s final text, embedding the natural environment and sociocultural landscape within the genos itself. Decolonial re-readings, by Galligan and Crook and Short, explain that ecological destruction was, for Lemkin, not external to genocide but one of its techniques. Eichler pushes the argument further, contending that for Lemkin’s understanding of genocide severe environmental destruction is not merely a method, but can itself be genocidal, when viewed through Indigenous cosmology.

These understandings reveal that there is more than one ecocide project. One seeks to universalise ecocide as a standalone international crime. Another seeks to show that the legal imagination of genocide was always too narrow, and that the destruction of ecological life was already inscribed within Lemkin’s project. As Cusato and Jones observe, the latter understanding of ecocide frames ecological and social justice as interdependent and mutually reinforcing, resisting the depoliticising tendencies of top-down codification.

The critique developed in this piece targets primarily the first project, the campaign to inscribe ecocide in the Rome Statute as a standalone crime, while acknowledging that the second project raises questions about the structural relationship between international law and extractive capitalism. The complexity of these structural questions sits well beyond what any amendment to the Statute could address.

Doctrinal mismatch and wantonness problem

Modelling ecocide on genocide has generated powerful symbolic capital, but its  incorporation into the Rome Statute reveals the limits of this strategy’s translation into       legal form. Article 6 imported the Genocide Convention’s narrow definition almost verbatim, with its demanding dolus specialis and closed list of protected groups, structurally incompatible with the diffuse, cumulative, and often non-intentional character of environmental harm. Article 8(2)(b)(iv), which criminalises ‘intentionally launching an attack in the knowledge that such attack will cause… widespread, long-term and severe damage’ to the natural environment, is the Statute’s only existing environmental provision and it is confined to armed conflict. Neither provision offers adequate doctrinal scaffolding for slow-onset, peacetime, or climate-driven destruction.

In 2021 the International Expert Panel (IEP), a group of 12 lawyers convened by the SEI, provided a definition of ecocide as ‘unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts’. The definition attempts to navigate this terrain by: (1) proposing an autonomous Article 8 ter, (2) extending the crime to peacetime, (3) relaxing the conjunctive harm threshold to ‘severe and either widespread or long-term’, and (4) extending protection to ecosystems as such, beyond purely anthropocentric harm.

The IEP definition covers ‘unlawful or wanton acts’, with ‘wanton‘ defined as reckless disregard for damage ‘clearly excessive in relation to the social and economic benefits anticipated’. Scholars have argued that, since international environmental law contains few absolute prohibitions, the ‘unlawful’ limb has limited reach. Therefore, the wantonness clause, carrying a proportionality test, becomes the operative driver of the crime.

The consequences are significant. Consider Heller’s coal-mine thought experiment: a state authorising a massive extractive project could plausibly argue that the anticipated social and economic benefits outweigh even severe and long-term environmental harm. The proportionality threshold would not be met, and no prosecution would follow. In such cases the expressive effect of non-prosecution would not be neutral: it would actively signal that this category of large-scale profitable destruction is compatible with international criminal law. The very provision designed to catch serious environmental harm runs the risk of endorsing it.

What Is Ecocide Actually Supposed to Do?

These normative design problems raise a prior question that the ecocide debate has not fully confronted: what function is the creation of the crime supposed to perform? Much of the contemporary advocacy around ecocide, especially through SEI and the IEP definition, has framed it as both a deterrent and an expressive measure. The genealogy traced above helps explain why those expectations are so high: the genocide analogy was always doing more than description; it was meant to confer moral weight and political leverage. If deterrence is the goal, the wantonness clause makes the threshold inherently contestable. Large extractive or energy corporations, operating through sophisticated legal counsel, will calibrate their social and economic benefit arguments accordingly. For well-resourced state and corporate actors, precisely those whose conduct ecocide most urgently needs to address, the deterrent signal will be weak and easily managed.

If the expressive function is the goal, the problem is equally serious. A crime whose operative element permits large-scale environmental destruction as long as the benefits are judged sufficient cannot coherently claim moral equivalence with genocide. The expressive message is undermined at the definitional level, before a single prosecution is brought.

The public momentum around ecocide largely comes from climate action and climate justice concerns, even though the concept is broader and includes severe environmental harm. This matters especially for climate-vulnerable communities and small island states like Vanuatu, Fiji and Samoa, who have been among the most vocal supporters of the fifth-crime strategy. For these countries, ecocide is a framework for naming what is happening to them as a matter of international criminal justice. But the gap between that expectation and what the Rome Statute can structurally deliver is vast: the ICC operates on individual criminal responsibility, does not prosecute corporations or states as such, is bound by non-retroactivity, and will be limited by complementarity and resource constraints to a handful of highly selective cases. If the crime is adopted in anything like its current form, the communities who are most invested in it are precisely those most exposed to the expectation gap that follows.

Rethinking the Frame

Killean’s call for ‘legal humility’, repositioning criminalisation as one tool among many rather than a master key is an accurate prescription. The genealogy of ecocide helps explain why it has been so difficult to apply: the genocide analogy was chosen precisely because it was maximalist. The central advocacy strategy has been what Schnyder calls ‘grafting’, linking the innovative ecocide norm to the established crime of genocide, building congruence and achieving traction through ‘moral shock value’. Reintroducing humility into the conversation now requires naming what the Rome Statute can and cannot do, clearly and repeatedly, to the constituencies who need to hear it most.

More durable pathways lie in working within existing frameworks rather than insisting on the fifth-crime strategy, whether through reading extreme environmental destruction as an ‘other inhumane act’ under Article 7(1)(k), or explicitly accepting a multi-level regime that complements the ICC with domestic criminalisation and an expanding architecture of environmental human rights instruments. The OTP’s 2025 Policy points cautiously in this direction, and recent developments such as Mauritius’s domestic ecocide law and the EU’s revised Environmental Crime Directive show that ecocide-style accountability is already advancing through national and regional legal orders.

Conclusion

Ecocide’s future will likely depend less on whether it becomes the fifth crime in the Rome Statute than on how its advocates and scholars decide to use it. If it is treated as a standalone criminal offence with sweeping expectations attached, disappointment may follow. If it is treated as part of a broader ecosystem of legal and political responses to environmental destruction, it may prove more useful.

The challenge, then, is not only to criminalise ecocide. It is to decide what kind of legal and political work the concept should realistically be expected to do, and for which constituencies. The ladder has lifted ecocide into international criminal discourse, but like François Mechain’s art installation at the beginning of the piece, the ladder is now attached to more than one branch: climate justice, decolonial repair, and the demand for criminal accountability. Whether ecocide can climb further depends on whether its advocates are willing to accept where the Rome Statute’s ceiling begins.

Image: François Mechain’s installation entitled L’arbre aux échelles – Image from Inhabitat