Filling the Gap: Ecocide and the Structural Limits of the Rome Statute

I. Origins of the Ecocide Proposal

In 2024, a coalition of small island nations including Vanuatu, Tuvalu, Fiji, Samoa, and the Maldives stood before the International Criminal Court (ICC) and proposed that the Court recognize ecocide as a new international crime. Their definition, drafted by an independent expert panel in 2021, describes 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.[1] For the states advancing the proposal, this is not abstract language. It reflects a lived reality: rising seas, collapsing freshwater systems, and lands rendered increasingly uninhabitable. The legal question they pose is simple: who should be responsible for the choices that led here?

These states argue that the existing framework of international law is not equipped for the type of harm they face. In Vanuatu, five islands have already become uninhabitable due to rising seas contaminating freshwater and eroding soil.[2] Tuvalu has begun digitizing its national archives because physical territory may soon be lost.[3] These developments illustrate not only ecological decline but the limits of a system that treats environmental loss as either a domestic issue or an unfortunate byproduct of development. Ecocide enters the conversation as a response not to a single disaster but to a structural absence.

II. Structural Limitations of the Rome Statute

  1. The Accountability Gap

The Rome Statute was designed for crimes that appear as discrete, identifiable events committed by human actors — genocide, war crimes, crimes against humanity.[4] It assumes a clear perpetrator, a clear act, and a measurable outcome. Environmental destruction rarely conforms to this model.

The problem is not one catastrophic decision but a sequence of regulatory choices that individually appear administrative: approving a mining concession, expanding coal production, weakening environmental oversight. Each step seems minor, but together they accelerate sea-level rise, biodiversity loss, and coastal vulnerability. The IPCC has documented repeatedly how cumulative state actions drive environmental degradation.[5]

This creates an accountability gap: no single decision is criminal under current law, yet the resulting harm is irreversible.

Small island states face this gap acutely. Countries most responsible for global emissions face little legal pressure, while the states experiencing the consequences have almost no recourse. Even when major emitters make progress — China’s rapid expansion of renewables, for example — these shifts are driven by domestic economic strategy rather than environmental responsibility.[6] They do not replace a system capable of assigning accountability for cumulative harm.

The Paris Agreement acknowledges “loss and damage” but provides no enforcement mechanism.[7] Commitments depend entirely on political will — something that changes as governments change. The result mirrors a prisoner’s dilemma: each state benefits from delaying costly mitigation, even though collective delay worsens the outcome for all.

  2. The Agent Problem: Who Is the “Perpetrator”?

Criminal law presumes an identifiable perpetrator, but ecological harm rarely offers one. A degraded coastline may result from decades of emissions, weak regulations, industrial investment, and resource extraction, which makes assigning criminal responsibility in such a diffuse causal chain extraordinarily difficult.[8] This challenge is structural rather than incidental, because the Rome Statute was not designed to capture cumulative harm produced by multiple actors.[4]

The definition of ecocide attempts to respond to this limitation by requiring knowledge of a substantial likelihood of severe harm.[1] Opponents argue that decision makers can deny certainty about timing or scale even when scientific consensus is overwhelming.[9] The problem is not a lack of knowledge but the fact that the statute’s current thresholds cannot account for the way that knowledge functions in environmental contexts.

  3. Weak Enforcement Capacity

Even if ecocide were adopted, enforcement would face major obstacles. The ICC depends on state cooperation, and many states with the largest ecological footprints, including the United States, China, India, and Russia, are not parties to the Rome Statute.[4] The Court cannot compel their cooperation, extradition, or evidence-sharing. This creates a structural enforcement gap because the states most capable of causing large-scale environmental harm are the ones least constrained by ICC authority. Recent developments show movement, such as the ICC Office of the Prosecutor’s 2024 policy paper noting that it will give special consideration to conduct that causes “significant and often irreversible damage to the natural environment,”[10] but these statements function as interpretive signals rather than binding mandates. Without meaningful enforcement power, a crime of ecocide risks becoming aspirational rather than operational.

  4. Economic Incentives and Systemic Non-Compliance

The final structural limitation is economic rather than legal. States face strong incentives to prioritize growth, extraction, and industrial expansion, and these incentives persist even when ecological risks are widely recognized. The global economy functions by externalizing environmental harm, shifting the costs onto communities that played little role in causing the damage. Civil liability does not correct this imbalance because large extractive companies often treat lawsuits and settlements as routine operating costs rather than meaningful deterrents.[11] Money cannot restore a collapsed freshwater lens or a bleached reef. The Rome Statute contains no mechanism for addressing systemic incentives that push states and corporations toward environmentally destructive decisions, which leaves this dimension of harm entirely outside the Court’s reach.

III. What a Crime of Ecocide Could Fix — And What It Cannot

Recognizing ecocide would not resolve every structural limitation, but it would address the most consequential one: the lack of a legal vocabulary for irreversible environmental loss. The proposed definition is deliberately narrow. It requires severe, widespread, or long-term harm and knowledge that such harm is substantially likely.[12] This threshold reflects a political compromise designed to secure state support while ensuring the category still captures the most serious and preventable forms of environmental destruction.

If adopted, ecocide could accomplish several things. It could create a forum where affected states can demand accountability. It could expand the Rome Statute’s conceptual reach beyond immediate violence to include cumulative environmental harm. It could also shift incentives by signaling that certain forms of environmental destruction may trigger criminal liability. These developments would matter, but they would not eliminate the deeper structural obstacles that limit the ICC’s capacity, including weak enforcement, major-power nonparticipation[4], and complex chains of causation.[8]

IV. Conclusion: A Structural Problem Requires a Structural Response

The amendment process will be slow, but momentum has shifted. Since September 2024, states have begun consultations at the Assembly of States Parties, and several European and Latin American governments have signaled interest in advancing the proposal.[9] At the same time, the ICC’s Office of the Prosecutor has already incorporated environmental considerations into ongoing investigations.[10] These developments do not guarantee adoption, but they indicate that ecocide is no longer situated at the margins of international criminal law.

International law cannot prevent every environmental loss. It can, however, refuse to remain silent about decisions that make such losses inevitable. The Rome Statute was drafted for a different era, one in which harm was understood as immediate, traceable, and directed by identifiable human actors. The conditions facing small island nations today fall outside that framework.

A crime of ecocide would not eliminate the structural limitations of the statute. It would, however, begin addressing the most fundamental one: the inability of international law to recognize, name, and respond to slow-moving destruction until the point of irreversible harm has already been crossed.

[1] Independent Expert Panel for the Legal Definition of Ecocide, Commentary and Core Text for the Legal Definition of Ecocide (Stop Ecocide Foundation, 2021).

[2] Australian Broadcasting Corporation (ABC News), “Vanuatu: Five Islands Now Uninhabitable Due to Climate Change,” Oct. 10, 2015.

[3] Tom Westbrook, “Sinking Tuvalu Turns to Digital Nation,” Reuters, Nov. 15, 2022.

[4] Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9 (1998).

[5] Intergovernmental Panel on Climate Change (IPCC), Sixth Assessment Report, Working Group I: The Physical Science Basis (2021).

[6] International Energy Agency, CO₂ Emissions in 2023 (2024).

[7] Paris Agreement, U.N. Doc. FCCC/CP/2015/L.9/Rev.1 (2015).

[8] Joana Setzer & Catherine Higham, Global Trends in Climate Litigation: 2023 Snapshot (Grantham Research Institute, 2023).

[9] Atılgan Pazvantoğlu, Ecocide as a Separate Crime under the Rome Statute (2025).

[10] International Criminal Court, Office of the Prosecutor, Draft Policy on Environmental Crimes under the Rome Statute (Dec. 18, 2024).

[11] Richard Heede, Carbon Majors Report (Climate Accountability Institute, 2014; updated).

[12] Independent Expert Panel, Legal Definition of Ecocide (2021).