Extraterritoriality and Ecocide

Cedric Ryngaert

In an era of acute ecological emergencies, characterized by habitat destruction, species extinction, climate change, and pollution, there have been increasing calls to criminalize ecocide. Ecocide can be defined as severe destruction of the environment, or more precisely, in the words of the International Expert Panel for the Legal Definition of Ecocide (proposed Article 8ter(1) Rome Statute of the International Criminal Court - ICC), 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’.

Ecocide often has an transnational or extraterritorial dimension, as it tends to affect multiple states, and to involve actors based in multiple states. The IEP, for instance, has defined the ecocide requirement of ‘widespread damage’ as including ‘damage which extends beyond a limited geographic area, crosses state boundaries’ (proposed Article 8ter(2)(c), own emphasis). Also, ecocide may involve corporations based in one state harming the environment in another state, possibly through subsidiaries based there. Because of the transnational dimension of ecocide, states may want to exercise extraterritorial jurisdiction over the offense of ecocide, i.e., jurisdiction that is not limited to events occurring on their territory.

In this blogpost, I argue that, as an ecocide amendment of the Rome Statute is rather unlikely, for the prosecution of ecocide one should rather pin one’s hope on domestic prosecutions using principles of extraterritoriality. I also warn, however, for the risks attendant to any exercise of extraterritorial jurisdiction.

Ecocide often has an transnational or extraterritorial dimension.

In spite of a recent proposal (September 2024), tabled by Vanuatu, Fiji and Samoa, to amend the Statute of the ICC to include a new international crime of ecocide, it is unlikely that, in the near future, the states parties to the ICC Statute will take this step. Resource constraints, alternative prosecutorial priorities (e.g., Ukraine, Gaza), a prevailing anthropocentric outlook, the dearth of relevant environmental expertise, and the lack of corporate liability do, for the time being at least, not make the ICC a suitable forum for the prosecution of ecocide in peacetime (e.g., de Hemptinne 2022). That said, the ICC may, on the basis of its current legal mandate, prosecute severe environmental harm as war crimes (Article 8(2)(b)(iv) ICC Statute) or possibly even as crimes against humanity (Martini et al. 2023). It is notable in this regard  that the ICC Office of the Prosecutor has recently launched a public consultation to advance accountability for environmental crimes under the Rome Statute (see our input here).

For the prosecution of ecocide occurring in peacetime, domestic courts may be better positioned: they may have more resources at their disposal, and they may have at least some experience with prosecuting corporations involved in extraterritorial crime. It has also been claimed that, compared to the ICC, it is in fact more likely that domestic courts will provide accountability for (extraterritorial) ecocide, as the forum state’s authorities have ‘less ability to resist and are more prone to accept legal accountability established by own courts for crimes committed by own citizens and entities’ (Hansen 2023, p. 23 – original emphasis). While this may not apply to courts in all states, there is indeed some evidence of domestic courts holding domestic entities liable for (partly) extraterritorial harm, without such decisions being strongly opposed by the political branches. A case in point is the Dutch District Court’s ruling in Milieudefensie et al. v. Royal Dutch Shell plc, in which the Court ordered Shell, a major oil company based in the Netherlands, to drastically reduce its own emissions as well as end-use emissions across its global activities (District Court of The Hague 2021). Such decisions may certainly raise societal concerns over a trend toward ‘dikastocracy’ (i.e., rule by unelected judges), but that does not mean that the political branches necessarily oppose them or block their execution.

For the prosecution of ecocide occurring in peacetime, domestic courts may be better positioned.

So far, only few states have criminalized ecocide, such as France, Ecuador, and a number of countries belonging to the former Soviet space (Stop Ecocide International). Momentum for criminalization is building, however, especially since the IEP’s proposal, the proposed ICC Statute amendment by Vanuatu cum suis, and the vigorous lobbying campaign by the non-governmental organization Stop Ecocide International. Importantly, in 2024, the European Parliament and the Council of the European Union adopted a Directive on the protection of the environment through criminal law. This Directive introduces qualified criminal offenses which encompass ‘conduct comparable to ecocide’ (Article 3(3) EU Environmental Crime Directive 2024, preambular paragraph 21), such as widespread pollution, industrial accidents with severe effects on the environment, or large-scale forest fires.

Importantly, the EU Environmental Crime Directive features a clause on extraterritoriality (Article 12), which provides for various types of mandatory and optional jurisdiction. For instance, the Directive requires EU member states to exercise jurisdiction if a part of the offense or the damage occurred on its territory or if the offender is one of its nationals, and it allows member states to exercise jurisdiction where the offense is committed for the benefit of a legal person established in its territory, or where it has created a severe risk for the environment on its territory  Especially the latter two grounds of optional jurisdiction – benefit- and risk-based – are quite unusual, although benefit-based jurisdiction has in the past been used in the context of the prosecution of human trafficking (e.g., Article 10(2)(b) of the EU Human Trafficking Directive 2011). It remains to be seen now which member states will choose to implement these optional grounds of jurisdiction, and obviously whether they will actually exercise jurisdiction on any of the grounds mentioned in the Directive.

The EU Directive could possibly serve as a model for serious environmental crime or ecocide conventions in other regions, or even for a transnational crime convention with a universal scope, along the lines of the United Nations Convention on Transnational Organized Crime (UNTOC 2000). Treaty practice shows that such suppression conventions often have elaborate provisions on extraterritorial jurisdiction, which states parties are required to implement in their domestic codes (e.g., Article 15 UNTOC). 

The EU Directive showcases the potential of various grounds of extraterritoriality for the promotion of accountability for ecocide-like acts. While this extraterritoriality may prima facie be welcomed, caution is also called for. In particular, when exercising extraterritorial jurisdiction, Western national prosecutors may well act in eco-authoritarian ways and reproduce colonial frames of thinking. They may be viewed as interfering in the affairs of states in the Global South (Branch and Minkova 2023, p. 73) and as compromising Global South peoples’ right to (industrial) development, while turning a blind idea to the structural international violence carried out by Western transnational corporations. And taking their cue from Western conservationists who have driven African agro-pastoralists off their ancestral lands with a view to creating ‘pristine’ nature reserves (Blanc 2022; Marijnen and Verweijen 2016), they may perhaps accuse people in the Global South of failing to take sufficient conservation efforts.   

One hopes that the extraterritorial criminalization of ecocide will be more than just a symbolic gesture.

Fairness in prosecuting ecocide on an extraterritorial basis will require that prosecutors be sufficiently attuned to the concerns of indigenous peoples and the Global South more generally (compare Koenning-Rutherford 2023). It will demand that prosecutors also show willingness to investigate Western corporations that have committed acts of extraterritorial ecocide in the Global South (Killean and Short 2023). If prosecutors are able to do so, they may contribute to the decolonization of international criminal justice (compare Burgis-Kasthala and Sander 2024, pp. 142-146). Ultimately, one hopes that the extraterritorial criminalization of ecocide will be more than just a symbolic gesture, and will actually deter persons and entities from harming the environment – but this is far from guaranteed. Also, it is unclear whether international (or transnational) criminal law, with its historic focus on spectacular, lethal crimes rather than slow environmental violence, is in fact well-suited to bring about a fundamental transformation of a global extractive capitalist system that almost inevitably causes environmentally destructive effects (Cusato and Jones 2024).

All this does not mean that criminalizing ecocide is not worth trying. Domestic courts exercising extraterritorial jurisdiction over ecocidal acts may turn out to be fascinating legal laboratories which can test whether prosecution of ecocide is viable.