In the ongoing discussions about a new global treaty on crimes against humanity, many of which have been chronicled on this site, States and civil society have increasingly called for recognition of environmental destruction as a form of mass harm. Frustrated with the inability of other mechanisms of accountability to slow the pace of environmental destruction during war and in times of relative peace, scholars and activists have turned to criminal law as an avenue to protect the natural environment and prevent its catastrophic destruction. These conversations have included efforts to add ecocide as a fifth core crime to the Rome Statute, as well as the ongoing work of the Office of the Prosecutor at the International Criminal Court (ICC) to develop a Policy Paper on Environmental Crimes. These initiatives are focused on prosecutions before the ICC.
Yet the vertical mechanism offered by the ICC for the prosecution of international crimes has both jurisdictional and practical limitations. For this reason, it is useful to consider whether the impending negotiation of a new United Nations treaty on crimes against humanity, beginning in January, might present an additional timely and realistic approach to addressing environmental harm, by adding it as a 12th enumerated act to the list of 11 crimes already contained in Article 2(1) of the International Law Commission’s (ILC’s) 2019 Draft Articles on the Prevention and Punishment of Crimes Against Humanity (the Draft Articles).
Examples of such harm abound: In the 1990s, Saddam Hussein’s regime drained southern Iraq’s Mesopotamian Marshes in retaliation against the Marsh Arabs, destroying a vital ecosystem, displacing hundreds of thousands, and decimating a centuries-old culture. More recently, Russia’s attacks on Ukraine’s Kakhovka Dam and the Zaporizhzhia Nuclear Power Plant have raised the specter of mass environmental harm causing untold suffering to a civilian population. These environmental tragedies, and others like them, represent attacks against human communities — deliberate, avoidable, and often unpunished. As the ICC Prosecutor’s new draft Environmental Crimes Policy states, “human-induced environmental damage has reached unprecedented levels… [threatening] both human and non-human life.” The current treaty process offers a chance to close that gap.
In considering the possibility of including environmental harm in the new crimes against humanity convention, it may be helpful to trace the development of this idea over time, as well as its current application. Adding environmental harm as a new provision offers many advantages to simply reinterpreting existing provisions of the current definition or relying upon the catch-all provision of “other inhumane acts,” as appears in article 7(1)(k) of the Rome Statue’s definition of acts that may constitute crimes against humanity as well as the current Draft Articles, including by making it clear that attacks against the natural environment may give rise to penal responsibility in peacetime as well as during war. In light of such considerations, States should seriously consider the idea of adding environmental harm as a 12th crime against humanity.
Historical Development
For nearly 40 years, three approaches have been advanced relating to the criminalization of environmental harm: (1) creating a standalone crime; (2) prosecuting it as a war crime; and/or (3) adding it to the existing texts on crimes against humanity, either in the 1996 Draft Code of Crimes Against the Peace and Security of Mankind or even in the Rome Statute of the International Criminal Court. Until recently, aside from limited case law treating environmental harm under the Rome Statute’s article 7 definition of crimes against humanity, the only clearly established basis for prosecution was as a war crime, a proviso that was rarely used. In 1986, the Special Rapporteur on the Draft Code of Crimes Against the Peace and Security of Mankind, a project that the ILC had been working on for many years and was originally intended to be the substantive criminal law accompanying the ICC Statute that the ILC was working on at the same time, proposed adding a new crime to the list of crimes against humanity, defined as “any serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment.” While a majority of the ILC’s members supported the proposal, the Drafting Committee ultimately separated the emerging concept of environmental crime from crimes against humanity, codifying it instead as Article 26 of the 1991 Draft Code of Crimes Against the Peace and Security of Mankind.
Yet Article 26 and the broader idea of incorporating environmental crimes into the Draft Code, either as a standalone offense or as part of crimes against humanity, was short-lived. During the ILC’s early work on the Draft Code, Christian Tomuschat, chair of its Environmental Crimes Working Group, observed that “nobody fully realized that such seemingly abundant goods as water, air and soil might be severely and perhaps even irreparably prejudiced by certain human activities.” Under Tomuschat’s leadership, the Working Group concluded that such crimes should be incorporated into the Draft Code. However, when the question returned to the ILC, while it easily adopted damage to the environment as a war crime during international armed conflict, it rejected recognizing environmental harms as a standalone offense in the 1996 Draft Code of Crimes and then voted 9-9, with 2 abstentions, against including it as a crime against humanity.
Those advocating for inclusion of environmental harm among the list of offenses in the Draft Code cited Saddam Hussein’s torching of Kuwait’s oil wells, scorched earth tactics and farmland destruction in other conflicts, the ICJ’s 1996 Advisory Opinion on nuclear weapons, and the ILC’s work interpreting Article 55 of Protocol I and Article 8(2)(b)(iv) of the Rome Statute. Those opposed, however, raised four primary objections to including a new offense or adding environmental harm as a crime against humanity:
First, they argued that the proposed crime lacked precision in its drafting;
Second, some believed that environmental offenses were not serious enough to warrant inclusion among core international crimes and were better addressed through national legislation;
Third, there was a sense that environmental protection in international law was not sufficiently developed to support codification or even the progressive development of international criminal law in this direction; and
Finally, looking at the comments of States, some of them argued that there was a lack of political will for establishing such a crime.
Explicit Reference Absent in Draft Crimes Against Humanity Treaty
In 2013, the ILC began drafting the Articles on the Prevention and Punishment of Crimes Against Humanity. It adopted the Rome Statute’s definition of crimes against humanity, with minor modifications, as the basis for the 2019 Draft Articles. The ILC’s reliance on the Rome Statute was logical, as it provided the first widely accepted definition of crimes against humanity in a multilateral treaty, and the Crimes Against Humanity Initiative had adopted the same view in its model treaty. However, this also meant that certain offenses, such as environmental harm, were excluded. As Draft Articles have been discussed in the U.N. General Assembly’s Sixth (Legal) Committee over the past few years, however, particularly under the structured process established by General Assembly Resolution 77/249, the idea of recognizing environmental harm as a crime against humanity has been revived. This reflects the growing concern over escalating environmental threats posed by both State and non-State actors.
The ICC Prosecutor has already recognized environmental harm as a factor in assessing the gravity of a crime, stating in its case selection and prioritization policy that the manner of commission may be evaluated in light of “crimes committed by means of, or resulting in, the destruction of the environment, including the social, economic and environmental damage inflicted on the affected communities.” It is true that criminalizing intentional environmental harm, when part of a widespread or systematic attack on civilians, could be accomplished by reinterpreting existing provisions, but doing so may raise concerns about legality and due process protections. A bolder approach would be to make this explicit by adopting a concrete proposal, such as the International Union for Conservation of Nature’s World Commission on Environmental Law’s suggested addition of a 12th crime to Article 2(1) of the ILC Draft Articles. This would criminalize “widespread, long-lasting, or severe destruction of the natural environment as the means of destruction, damage or injury to any civilian population.”
A body of human rights law that has developed since the drafting of the Rome Statute underscores why environmental harm now properly falls within the scope of crimes against humanity. This includes decisions by the African Commission on Human and Peoples’ Rights, the European Court of Human Rights, and the Inter-American Commission on Human Rights, which have “all started incorporating environmental damage into considerations of human rights violations.” In July 2022, the U.N. General Assembly adopted Resolution 76/300, recognizing “the right to a clean, healthy and sustainable environment as a human right,” and the right to a healthy environment is recognized by the constitutions or national legislation of more than 125 States. This affirms the vital link between environmental protection and the dignity, prosperity, and survival of humanity, norms that were also reaffirmed in the recent Advisory Opinion of the International Court of Justice on Obligations of States in Respect of Climate Change.
A Logical Next Step
As noted above, efforts in the 1990s to classify environmental harm as a standalone crime or as a crime against humanity faced four main objections: the definitions were unclear and imprecise, the harms were not seen as serious enough, international environmental law was underdeveloped, and political will was lacking. Today, it is difficult to argue that the second and third objections still stand, but the challenges of careful drafting and building political momentum remain. The opening of treaty negotiations will allow States to craft a proposal that meets current needs and can certainly be carefully drafted. This leaves the only real obstacle to incorporating environmental harm explicitly into the new treaty to be the question of political will.
It could be argued that framing environmental destruction as a crime against humanity is a mismatch, and that nature should instead be protected in its own right — that “trees should have standing.” But law has not yet entirely caught up with morality in this arena, meaning that there are some significant juridical hurdles to doing so. Moreover, as a conceptual matter, is it not precisely the false divide between humans and the environment that has brought humanity to the precipice of catastrophe. As Rachel Carson, whose 1962 book Silent Spring helped spur public awareness of the harm technology was inflicting on the natural environment, stated shortly before her death:
[Humanity’s] attitude toward nature is today critically important simply because we have now acquired a fateful power to alter and destroy nature. But [humanity] is a part of nature, and [its] war against nature is inevitably a war against [itself]. We are challenged as [humanity] has never been challenged before to prove our maturity and our mastery, not of nature, but of ourselves.
Studies have demonstrated that international humanitarian law protects explicitly designated objects more effectively than those protected by implication. The public and media understand the law more easily when prohibitions are explicit, and it is fairer to the accused to clearly define what is permitted and what is not. While existing law allows for the investigation and punishment of environmental harm, the negotiation of a new treaty on crimes against humanity presents a rare, once-in-a-lifetime opportunity to recognize not only the atrocities of the past but also the harms facing current generations and those to come. The massive destruction of the natural world threatens not only human life but the planet itself. Surely, in crafting a new instrument to address harms that, as the Draft Articles notes, “deeply shock the conscience of humanity,” this urgent and devastating reality must be addressed.
The 2019 Draft Articles are the product of a 16-year process involving States and civil society, led first by academics, then by the ILC, and now by States and their civil society partners. The negotiation of a new treaty at this juncture offers a critical opportunity to name and explicitly address the gravest harms confronting humanity in the 21st century. Environmental harm outside the context of war came close to inclusion in the ILC’s 1996 Draft Code of Crimes — and would thus have shaped the Rome Statute and perhaps even the ILC’s 2019 Draft Articles on Crimes Against Humanity. For this reason, as States begin the process of moving forward with treaty negotiations in 2026 under Resolution 79/122, 30 years after environmental harm was narrowly excluded from the ILC’s list of core crimes of international concern, they should seriously consider closing this gap. Addressing the global environmental crisis requires urgent action, and this new treaty offers States an unprecedented opportunity to confront it directly and decisively.
