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Article Contents

1. introduction, 2. from green growth to green crimes, 3. disrupting the sustainability narrative, 4. critical insights on the definition of ecocide, 5. changing the question: from iel principles to socio-ecological realities, 6. conclusion, acknowledgement.

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Ecocide, Sustainable Development and Critical Environmental Law Insights

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Liana Georgieva Minkova, Ecocide, Sustainable Development and Critical Environmental Law Insights, Journal of International Criminal Justice , Volume 22, Issue 1, March 2024, Pages 81–97, https://doi.org/10.1093/jicj/mqae006

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Advocates of the criminalization of ecocide face a dilemma: how to address activities that bring socio-economic benefits and cause severe environmental damage. The solution has generally been seen in the integration of international environmental law (IEL) norms, such as balancing sustainability with development, into the definition of ecocide. This article challenges the uncritical adoption of IEL norms in ecocide debates and explores the socio-ecological implications of relying on those norms in future trials at the International Criminal Court. While this article does not offer a new definition of ecocide, by borrowing insights from critical environmental law and studies of law in the Anthropocene it proposes a new approach for engaging with the question of ecocide, namely, by embracing reflexivity and normativity in legal practice.

In June 2023, the International Criminal Court (ICC) Office of the Prosecutor announced plans to complete new policies on ‘environmental crimes’ over the next two years. 1 While ICC jurisdiction is currently limited to wartime environmental crimes, 2 international lawyers have argued that peacetime ‘ecocide’ should be similarly criminalized. 3 Historically, war has been the most environmentally destructive activity, but in the age of the new proposed geological epoch of the Anthropocene 4 it has been replaced by the extraction, production and distribution of goods and services that fuel economic growth.

In 2021, the Stop Ecocide Foundation convened an independent expert panel (IEP) on the definition of ecocide. 5 According to the IEP: ‘“ecocide” means 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.’ 6 Ecocide could be perpetrated through a broad range of means, from the destruction of ecosystems as a result of dam construction, to mass deforestation and species extinction following the establishment of palm oil plantations. To distinguish ecocide from lawful economic activities that might nevertheless cause severe environmental harm, the IEP proposed that only ‘wanton’ acts should be punished, where ‘wanton’ refers to conducts committed ‘with reckless disregard for [environmental] damage which would be clearly excessive in relation to the social and economic benefits anticipated ’. 7 Here, the IEP follows international environmental law (IEL), and more specifically, the idea of ‘balancing’ environmental harms against socio-economic benefits, embodied in the concept of sustainable development. 8

This article borrows insights from critical environmental law studies 9 and the literature on IEL in the Anthropocene 10 to elucidate the problems with incorporating the logic of ‘balancing’ sustainability and development into the definition of ecocide. With reference to the examples of dam construction and the palm oil industry, this article shows that the wantonness requirement in the IEP’s definition creates the misleading perception that abstract concepts such as ‘environmental costs’ and ‘socio-economic benefits’ can be separated and determined in practice. Furthermore, because the wantonness requirement is concerned only with unsustainable development, rather than with the limitless pursuit of growth as such, it risks incentivizing potential ecocide perpetrators to engage in greenwashing activities. This ecocide definition risks perpetuating ‘business as usual’ 11 instead of ushering a new era of environmental justice.

The wantonness requirement has already triggered criticism among legal scholars for introducing ‘anthropocentric’ considerations into the definition of ecocide. 12 This article contributes to the discussion by integrating such arguments into a more comprehensive theoretical framework, which explores the logic behind IEL rules, its socio-ecological consequences and alternative approaches to engaging with the criminalization of ecocide in international criminal law (ICL). Those approaches include embracing reflexivity — engaging in self-critical behaviour to revise the legal system’s core commitments 13 — and embracing normativity — giving up on the pretence of objectivity and acknowledging the inevitability of morally-charged decisions when addressing environmental harm. 14 Specifically, this article seeks to shift the focus of ecocide debates away from the question of how best to integrate IEL norms, such as balancing sustainability with development, within ICL, and towards (1) a critical reflection on the underlying logic of IEL and (2) an inquiry into the new tools which ICC judges would have to be equipped with to address environmental harm in the Anthropocene. 15 As noted by Mai and Boulot, elucidating the inadequacies of the current regime of international environmental governance is the necessary first step towards reforming IEL to meet the challenges of the Anthropocene. 16 Consequently, the goal of this article is not to offer a new and revised definition of ecocide, but rather to highlight the socio-legal questions which any proposal for the criminalization of ecocide should engage with.

This article also contributes to the proliferating critical scholarship on ecocide. 17 Cusato and Jones similarly borrow insights from critical legal studies and suggest that the proposed new crime of ecocide would obfuscate protracted forms of socio-ecological violence such as extractivism and neo-colonialism. 18 The authors focus on both the inaptitude of ICL to deal with structural violence and the fact that most ecocide definitions replicate the fraught logic of sustainable development. 19 In this article, I focus on a more specific aspect of that debate, namely, the balancing requirement found in recent ecocide definitions, and do not seek to answer to the broader question of whether or not ecocide should be criminalized considering the limitations of the ICL system. Nevertheless, I hope to contribute to the work of Cusato and Jones and other critical scholars by exploring how the proposed new crime of ecocide might work in practice in the ICC courtroom, alongside the possibilities for engaging in a self-critical behaviour within the ICL field.

Finally, an important caveat is worth mentioning. Unlike ICL, which focuses on a limited number of core crimes, IEL is a broad system composed of numerous distinct regimes, including on climate change, air pollution, marine pollution and biodiversity. 20 Rather than focusing on a specific IEL regime, this article explores a concept that has become influential in the field as a whole, namely, sustainable development. While this concept touches upon many issues, as illustrated by the United Nations Sustainable Development Goals, this article focuses on one particular aspect of it — the logic of balancing environmental costs and socio-economic benefits.

Section 2 of this article discusses how sustainable development has influenced the definition of ecocide; Section 3 provides insights from critical environmental law and IEL in the Anthropocene; Section 4 uses those insights to highlight the problematic assumptions which ecocide definitions have borrowed from IEL; Section 5 discusses an alternative approach for engaging with socio-ecological harm during ecocide trials; Section 6 concludes.

The Report of the 1972 Stockholm Conference on the Human Environment concluded that most environmental problems faced by the Global South were ‘caused by under-development’ 21 and opened the door to a new way of thinking about development goals and environmentalism — as complimentary, as opposed to incompatible. 22 The concept of ‘sustainable development’ was affirmed in the 1992 Rio Declaration on Environment and Development. 23 Its ubiquity has led commentators to conclude that environmentalism has ‘morph[ed]’ into sustainability. 24

The compelling idea of reconciling environmental protection with socio-economic development has also found place in the 2021 IEP’s definition of ecocide. As observed by Robinson, the environmental footprint of certain activities, such as producing electronic devices and air travel, would likely meet the ‘severe and either widespread or long-term’ threshold of ecocide and, to avoid the criminalization of otherwise beneficial activities, only those conducts which have been carried out with wanton disregard for their environmental consequences should be punished. 25 The IEP has further stressed that environmental law often ‘involves a balancing of environmental harms against social and economic benefits, which is expressed in the principle of sustainable development’. 26 Other recently proposed definitions of ecocide follow a similar approach. 27 In 2021, the Group of Experts at UCLA’s Promise Institute for Human Rights proposed that acts of ‘responsible development’ should not be punished as ecocide. 28 Gillett’s 2022 definition also refers to ‘unsustainable harm to the natural environment’, where the term ‘unsustainable’ refers to environmental law principles, including ‘weighing social and economic benefits’. 29

Adopting the logic of existing environmental law serves to gain much-needed state support for the incorporation of ecocide into the Rome Statute. 30 While some states, such as Vanuatu, have supported the criminalization of ecocide, 31 Gauger et al.’s archival analysis reveals that historically most states have remained reluctant to do so. 32 Furthermore, environmental problems need urgent solutions. It is quicker to introduce new legal rules that follow established principles than to seek major reforms of international law. Supporters have insisted that criminalizing ecocide does not involve ‘a radical expansion of the foundations of western law’. 33

But while the adoption of familiar ideas, such as that of balancing environmental protection with socio-economic benefits, might be ‘optically (and especially politically ) appealing’, 34 it also bears significant costs. The uncritical reliance on the sustainable development narrative neglects the fact that this narrative has been subject to significant contestation in critical environmental law scholarship, as discussed in the following section.

A. Critical Environmental Law

Mindful of the power of legal discourse to shape reality and of the intersection between law, politics and economics, critical environmental law explores ‘how environmental law stabilizes or disrupts existing social orders’. 35 Borrowing insights from Foucault’s theory of the production of knowledge, critical scholars have observed that by institutionalizing ‘particular systems of meaning’, legal discourses ‘clos[e] off alternative ways of thinking about’ environmental problems. 36 In other words, IEL helps ‘universalize and normalize’ certain perceptions of nature, 37 and more specifically, those perceptions which protect private and sovereign property and enable the continued exploitation of the environment. 38 Similarly, as discussed in Section 4, the manner in which the definition of ecocide has been recently framed risks legitimizing continuous economic growth and market environmentalism by obfuscating their long-term environmental impacts. 39

Critical environmental law studies further question the assumption that the progressive institutionalization of international legal rules would offer greater protection to nature. This is particularly relevant for IEL, where states’ commitments are often framed in incremental terms. For instance, the 2015 Paris Agreement envisions state parties to make a ‘progression’ each time they renew their national commitments to mitigating climate change. 40 Similarly, proposals to criminalize ecocide approach the latter as ‘a natural progression’ of the existing system of international law. 41 This progressivist narrative has enabled the adoption of IEL norms into ICL to be framed as the natural development of both legal systems. 42 Regarding IEL, Voigt has observed that, with few exceptions, multilateral environmental agreements do not offer a rigorous framework of state liability for breaches of environmental norms. 43 Some regimes, such as the Convention on Long-Range Transboundary Air Pollution and the Paris Agreement, do not contain any rules on state liability. 44 In terms of enforcement tools, IEL has increasingly relied on managerial techniques, such as monitoring, capacity-building and non-compliance mechanisms instead of interstate litigation. 45 Consequently, on this account, a new criminal responsibility provision would significantly enhance the enforcement power of IEL by providing it with the harshest sanction available to society, namely, the incarceration of individual persons. The criminalization of ecocide is also seen to contribute to the development of ICL by taking on the most pressing new domain of global harm and justice. 46 As observed by Kooijman, ecocide is presented as a necessary extension to peacetime situations of the legal protection that has already been offered to nature during the war. 47

However, as Stevenson’s comparative study reveals, compliance with international environmental legal rules could have adverse impact on nature when the legal rules in question have failed to engage with the scale and complexity of environmental harm. 48 Consequently, critical environmental law reveals as deeply problematic the liberal legalist logic that ‘any [legal] action is better than no action’. 49 A greater source of concern is not the quantity of international environmental legal norms, but the quality of those norms. 50

The abundant references to IEL’s practice of balancing environmental considerations with the right to socio-economic development, which are found in recent definitions of ecocide create the assumption that this logic is itself unproblematic. The main issue of concern for the drafters of ecocide definitions appears to be how best to translate the logic of sustainable development into ICL and, more specifically, whether to use terms such as ‘wanton’, ‘responsible development’ or (a prohibition of) ‘unsustainable harm to the natural environment’. 51 As observed by critical scholars, by focusing on the appropriate articulation of IEL principles within criminal law, the debate on ecocide precludes the bigger question of whether those principles offer adequate protection to the environment in the first place. 52 In contrast, critical environmental law studies explore the extent to which IEL has become complicit in the conditions driving environmental destruction, including the global climate change crisis. 53 After a discussion of the insights which critical and revisionist studies offer in that regard, this article proceeds with an analysis of their implications for the criminalization of ecocide in Section 4.

B. The Unsustainability of IEL Norms

IEL has incurred significant criticism for its ‘worrying lack of a normative ambition’ to bring up the fundamental change in socio-economic practices that are required to face the current global environmental crisis. 54 As observed by Viñuales: ‘legal institutions are built in such a way that socio-economic growth/development is organized first and only then environmental protection concerns are added, as external and additional.’ 55 The popular conception of sustainable development that has emerged from documents such as the 1972 Stockholm Declaration, the 1987 Brundtland Report and the 1992 Rio Declaration, or what Adams calls ‘mainstream’ sustainable development, 56 has sought modest reforms and adjustments to production processes rather than any radical departures from the Global North’s capitalist model of limitless growth. 57

Consequently, IEL has been criticized for failing to prevent irreparable environmental harm and ‘keep humanity from crossing critical planetary boundaries’. 58 The ‘narrative of sustainable development’ has ‘naturalized’ and instituted ‘as common sense’ the proposition that humans could continue to exploit nature without repercussions. 59 IEL regulations have implied that economic growth has ‘no set limits … beyond which lies ecological disaster’. 60 Sustainable development has also triggered criticism for supporting the flawed assumption that novel mechanisms of ‘ green economic growth’, such as payment-for-ecosystem-services and carbon offsets, would be sufficient to decouple the international economy from the ensuing environmental degradation from ‘conventional economic growth’. 61 Because the recent definitions of ecocide borrow from IEL the logic of balancing development with sustainability, as observed by Cusato and Jones, engaging with such criticism in ICL debates is of crucial significance. 62

C. IEL in the Anthropocene

IEL’s sustainability narrative has appeared particularly problematic in the context of the global climate crisis. As observed by Verschuuren, current IEL appears ‘insufficient to deal with the new challenges we face in the Anthropocene’: Challenges that do not arise from narrowly defined local environmental crises, but at the level of the ‘Earth system’. 63 This line of reasoning reflects a broader argument that the existing forms of international organization are ill-equipped for the Anthropocene. According to Dryzek and Pickering, those forms of organization have been developed under the conditions of the Holocene — the geological epoch of the past 12,000 years which has been marked by ‘unusual stability in the Earth system’. 64 This makes international organization unable to deal with the challenges brought by the Anthropocene, which marks a fundamental break with the Holocene conditions and ushers an age of ‘surprise, uncertainty and change’ about the behaviour of the Earth system. 65 Key to Dryzek and Pickering’s argument is the proposition that the Anthropocene should not be perceived as ‘a multiplication of environmental challenges’ that could be addressed simply by ‘an intensification of the existing repertoire of responses’. Instead, the Anthropocene requires a ‘state shift’ in common perceptions about the role of the economy in environmental change. 66

Similar to other socio-political institutions developed during the Holocene, IEL still works on the assumption that ‘if the Earth System was left by itself with little anthropogenic interference’ it would eventually go back to a stable equilibrium. 67 On this account, the role of IEL is to impose certain constraints or regulations on socio-economic activities (which would somewhat reduce human impact on nature) without seeking to reformulate the very activities that cause environmental damage. 68 Yet, critical commentators have argued that such reformulations are necessary to build an efficient IEL system, especially in the context of climate change. 69 Simply multiplying legal provisions and ‘strengthening’ existing ones by, for instance, criminalizing unsustainable development, would not be sufficient to make environmental law function more effectively in the Anthropocene.

D. Anthropocentrism in the Anthropocene

Finally, critical environmental scholars have challenged the distinction between the interests of humans (anthropocentrism) and those of the environment (ecocentrism) in IEL discourses. 70 The Anthropocene has erased ‘the boundary between a body and its environment’, making it impossible to comprehend the human existence in isolation from other-than-human bodies. 71 It has been suggested that humans’ embeddedness within ‘nature-as-a-whole’ not only does not exonerate humans’ destructive actions towards the environment but also in fact heightens our responsibility for protecting the Earth system. 72 Nevertheless, critical commentators have cautioned against the reliance on universal references to humanity when assessing environmental harm. As observed by Philippopoulos-Mihalopoulos, because the socio-ecological continuum is ruptured by power imbalances, ‘[w]e are not one humanity facing its responsibility before the Anthropocene’. 73 By reframing the climate crisis as ‘a crisis of human hierarchy’, Grear makes a compelling argument that ecological harm cannot be understood without also understanding social injustices. 74 Thus, separate environmental, class, gender, and race struggles are all underpinned by what Boukli and Kotsakis call ‘transversal harm’, or the harm resulting from the underlying logic of destructive activities, such as extractivism. 75 Yet, as the following section suggests, the proposed definitions of ecocide which borrow from IEL the logic of balancing not only neglect transversal harm but also perpetuate the flawed juxtaposition between ‘humans’ and ‘environment’.

The insights from critical environmental law and studies on IEL in the Anthropocene suggest that the adoption of the logic of balancing environmental costs and socio-economic benefits from IEL into the definition of ecocide could have significant adverse impacts on environmental justice. This section discusses two such impacts: An overly simplified idea of environmental cost–benefit analysis and the possibility of greenwashing development projects without significantly disrupting economic activity. The analysis renders support to the proposition that the criminalization of ecocide might inadvertently further the legitimization of the global capitalist system of exploitation. 76

A. Assuming Away the Complexities of Cost–Benefit Analysis

International law creates the impression that by relying on legal rules to make a particular assessment a person has ‘taken everything into account’. 77 Specifically in the context of ecocide, the incorporation of the wantonness requirement, premised on the IEL logic of balancing environmental protection with development, assumes that environmental ‘costs’ could be assessed on a case-by-case basis, as a temporarily and geographically confined phenomenon, and balanced against the ‘benefits’ of socio-economic development. In practice, however, making such predictions not only requires significant simplifications 78 but also neglects the socio-ecological continuum, as well as its power imbalances. 79

Adams’s observations concerning dam construction provide an apt example. As he notes, the complexity of aquatic ecosystems makes it difficult to assess the full magnitude of the environmental impact of dam construction: That impact is not limited to the construction site but can extend downstream to coastal environments. 80 Nevertheless, in a potential ecocide case concerning dam construction, the defence could argue that the environmental costs have been offset by the significant socio-economic benefits of completing that project. As noted by the World Bank, which has been involved in financing major water infrastructure projects, ‘dams benefit millions of people who rely on their waters for livelihood’. 81 But moving beyond generic assessments to make predictions about the costs and benefits of specific projects is much more challenging. 82 While some groups of people enjoy the benefits of dam construction, such as water supply or hydroelectric power, as the construction of the Bakun Dam in Malaysia demonstrates, the local populations usually bear the high costs of resettlement. 83 Adams observes that, in practice, the resettled communities often receive little or inadequate help because their concerns generally feature only as a ‘secondary problem’ in the environmental impact assessments conducted for big development projects. 84 Thus, environmental harm cannot be separated from socio-economic injustice and cost–benefit analysis merely obfuscate that reality.

The palm oil industry provides another example of cost–benefit analysis problems. Reported negative environmental impacts of oil palm cultivation include widespread deforestation, threatening biodiversity and greenhouse gas emissions. 85 Nevertheless, just as with the example of dams, a defendant, accused of committing an ecocide by clearing a forest to construct an oil palm plantation at its place, could argue that they had expected the socio-economic benefits to have outweighed the environmental costs of that activity. In addition to providing international consumers with cheap commodities, the defendant could argue that palm oil production brings socio-economic benefits to the local populations. 86 The WWF has pointed out that, despite environmental concerns, ‘millions of smallholder farmers’ have been provided with livelihood from palm oil. 87 However, in practice, the distribution of socio-economic benefits from the palm oil production might be less equitable than anticipated. First, Meijaard et al. observe that smallholder farmers might not have easy access to the required resources or technical knowledge to implement reforms that meet the new requirements of ‘sustainable’ palm oil production. 88 The authors suggest that with some support from the government or businesses, smallholder farmers could be sufficiently trained. 89 But this would require additional planning, time and resources, which governments might choose not to invest. Secondly, the palm oil example reveals the often-neglected gender aspect of sustainable development. Julia and White examine the gendered impact of corporate land acquisition for palm oil plantations in Indonesia. 90 Their study reveals that when corporations approach communities to establish plantations, they communicate with local leaders, religious figures and teachers who tend to be all male. In effect, the palm oil industry in Indonesia has contributed to the loss of women’s land rights and the feminization of agricultural labour, which has in turn increased health hazards to women. 91

Unfortunately, by uncritically adopting the logic of environmental cost–benefit analysis from IEL, the ‘wantonness’ element of ecocide also imports its reductionist and linear mentality and perpetuates the simplistic idea of the possibility of assessing temporarily and spatially confined costs and benefits of development projects. The reality of ecocide proceedings is going to be much more complicated. The wantonness element requires not one, but two levels of cost–benefit analysis. Before the Court considers whether the environmental costs of a certain activity have been balanced off by its perceived socio-economic benefits, it would first have to assess whether the costs to some societies have been offset by the benefits to others. The assessment would be further complicated by the fact that, if the Court seeks to conduct a comprehensive analysis of the costs and benefits concerning, for instance, resettled communities, it would have to assess both the tangible and intangible socio-economic impact of development projects on those communities. Such assessments could pose a significant resource burden on the ICC in terms of both time and funding for investigations. 92 In effect, to make ecocide proceedings possible at the Court, much of the complexities of cost–benefit analysis would have to be assumed away, in the same way as economic actors, such as dam project planners, do.

In effect, the incorporation of the logic of balancing and cost–benefit analysis in the definition of ecocide is going to contribute to a process that Boukli and Kotsakis call ‘compartmentaliz[ing]’ socio-ecological harm, by dividing it into separate components and employing different legal instruments to deal with each one. 93 This fragmentation of harm and responsibility creates ‘the illusion of the effective legal response’ 94 to specific issues fixed as problems under a given legal regime. At the same time, because compartmentalized legal responses do not address the transversal nature of socio-ecological harm, they perpetuate ‘disaster tolerance’. 95 In the case of ecocide, the introduction of the balancing requirement institutes a clear separation not only between the experiences of human and other-than-human bodies but also between forms of environmental harm, namely ‘sustainable’ and ‘unsustainable’. Such a separation is enabled by the idea that the limits of the ICC mandate preclude it from addressing all forms of severe environmental harm, but it could nevertheless offer some justice by addressing the unsustainable forms of such harm. However, this idea is deeply problematic as it neglects the complexity of socio-ecological harm, the ‘mechanisms that enable the perpetuation of environmental harm’, 96 and the power imbalances that have influenced a particular definition of ‘sustainability’ under an IEL that favours developmentalism and extractivism.

Nevertheless, critical environmental law scholars do not necessarily reject the idea of employing legal tools of responsibility altogether. 97 Rather they suggest a rethinking of the core ideas surrounding the concept of liability in legal systems. Section 5 offers insights in this regard which aim to contribute to the process of rethinking core ideas.

B. Market Environmentalism and Greenwashing

Because, similar to IEL, the wantonness requirement does not question economic growth as such, but merely adds another layer of regulation to it, this definition of ecocide risks incentivizing the greenwashing of economic activities at the expense of more substantive rethinking of the environmental impacts of the modern economy. Such greenwashing activities are enabled by the logic of market environmentalism, which holds that the negative externalities of economic growth could be offset by purchasing environmental goods and services. 98 Examples include the market for ‘ecosystem services’, understood as the capacity of natural resources to serve as carbon sinks, provide habitats and filter fresh water. 99 The model for purchasing those goods has been generally referred to as payment-for-ecosystem-services 100 and provides government officials and CEOs with ample opportunities to green their activities. Yet, in practice, market environmentalism risks facilitating, instead of mitigating, environmental harm by failing to offset the latter and sustaining the illusion of limitless (green) growth. 101

For instance, as a deterrent against potential ecocide prosecutions, CEOs might opt for purchasing ecosystem services, such as planting trees to serve as carbon sinks, and claim that the environmental costs of their activities have been offset to a degree that is exceeded by socio-economic benefits. The quality of environmental protection offered by purchasing ecosystem services should in theory be guaranteed by the conventional market-based logic, according to which the byers (of ecosystem services) will not pay or pay less for a low-quality service (unsustainably managed ecosystems). However, as observed by McAfee, in practice, the payment-for-ecosystem-services model challenges the conventional economic logic. 102 The actual environmental effects of an ecosystem service, for instance, how much emissions have been saved, are not only temporally and spatially distant from a particular transaction but might even be ‘virtually impossible to measure’. 103 A further complication stems from how difficult it is to generalize about ecosystem operation patterns. To be effective, ecosystem analysis needs to be conducted on a case-by-case basis. 104 Yet, because that approach would inevitably increase transaction costs, analyses tend to assume complexities away. 105 Consequently, ecologists have cautioned that the popularization of ecosystem services based on a flawed understanding of how a particular ecosystem works might increase environmental degradation. 106 The basic economic logic is equally questionable when examining the buyer’s side. An important question in that regard is: What is it about environmental services that the buyer values and seeks to purchase? Hypothetical ecocide perpetrators might buy environmental services not out of genuine concern for environmental protection but merely to ‘green’ their economic activity for the purposes of avoiding sanctions and gaining public approval. In that case, environmental services become valued on the market for the appearance of providing environmental protection rather than for their actual environmental performance, which itself is difficult to assess. The implication is that the international payment-for-ecosystem-services market might function ‘efficiently’, in the sense that it enables the purchase of the appearance of environmental protection, and simultaneously has an environmentally destructive impact.

The ubiquitous nature of market environmentalism tools in the modern international economy makes it much easier for potential ecocide suspects to use that as an excuse to continue business as usual. Notably, as observed by Heller, the wantonness requirement includes a subjective mental element test, which concerns the accused’s comprehension of the risk of environmental damage, rather than an objective assessment of that risk. 107 While his analysis concerns coal plants, this hypothetical could also be applied to carbon offsetting activities. Specifically, in an ecocide trial, the defendant would not have to prove that the purchased environmental services, such as carbon offsets or conservation projects, actually offset the environmental costs in question, but simply that they believed that to be the case. This raises complex questions of calculation models and the credibility of certifying agencies. Furthermore, the defendant’s expectations concerning the amount of environmental harm that needed offsetting are also likely to vary greatly depending on the scientific assessments they have chosen to rely on. In effect, the ecocide trial is likely to turn into ‘a battle of experts’ — those of the defence against those of the prosecution — ‘with the verdict being left in the hands of judges with little economic or scientific training’. 108 Because the burden of proof lies with the prosecution, the wantonness element risks incentivizing government officials and CEOs to simply greenwash their activities instead of implementing more substantial reforms in their modes of conduct.

The strategy of absorbing environmental issues into the existing ‘unsustainable structures’ of IEL is unlikely to be successful in the long run. 109 The speed with which the Earth system is transforming in the Anthropocene has rendered inadequate incremental reforms. 110 The attempt to construct the concept of ecocide around that of sustainable development could not merely result in the adoption of another ineffective environmental norm, but also make it even harder to pursue bolder reforms in the future . For that reason, legal scholars have proposed a new research agenda for IEL to reconceptualize legal norms and make them better equipped to face the Anthropocene. 111 Some have proposed the development of ‘new legal axioms’ 112 while others have others have called for the establishment of ‘international environmental law 2.0’. 113

Similarly, this section proposes to change the question which has so far dominated ecocide discussions: from ‘How best to integrate IEL principles into the definition?’ to ‘What tools should international judges be equipped with to make judgments concerning environmental harm in the Anthropocene?’. Borrowing insights from critical studies, two such tools are discussed: Embracing reflexivity and embracing normativity. Both tools have implications for the socio-economic consequences of ecocide trials. But, following Dryzek and Pickering’s approach, 114 instead of prescribing a particular outcome, such as the adoption of fixed principles, they prescribe a broader framework for continuous re-assessment of how ecocide should be prosecuted in ICL. By switching the framework of the debate — from the existing principles of IEL to the Anthropocene realities of uncertainty and difficult moral choices — the discussion below seeks to provide new foundations for re-engaging with the question of criminal responsibility for ecocide.

A. Embracing Reflexivity

Revisionist approaches to IEL suggest that the stability of international legal rules, an important quality that makes those rules predictable, might become an obstacle in the Anthropocene, with its uncertainties and surprises. For that reason, it has been proposed that IEL should strike a balance between stability and reflexivity. 115 Dryzek and Pickering describe reflexivity as the capacity of international systems ‘to question their own core commitments, and if necessary change themselves in response’. 116 As such, reflexivity constitutes a practice: It provides a basis for (re)evaluation of rules instead of prescribing a particular model of governance. 117 In fact, as early as the 1990s, legal scholars have suggested that environmental law has to ‘bend’ and ‘avoid being locked into rigidly linear behaviour’ to adapt to changing circumstances. 118

An important question asks which actors are reflecting upon and transforming the legal system. 119 Some scholars place the emphasis on the ability of the system as such to act upon itself, rather than on individual actors. 120 But the practice of reflexivity could also be understood as the product of the continuous interaction between actors within the legal field (judges, lawyers, academics, non-governmental organizations, states) and the structure of that field (its core norms and commitments). Even though pre-existing norms constrain the type of reforms which actors might seek to make within the system, those actors could nevertheless engage in critical behaviour and seek revisions of the legal rules. 121

Embracing reflexivity might prove challenging with regard to ecocide. Unlike human rights norms, which tend to be interpreted as ‘living instruments’ that could be adapted to the needs of modern society, 122 ICL is bound by the legality principle which requires fair notice of its rules. Consequently, Rulh’s proposal for maintaining ‘intentional ambiguity’ in the definition of environmental law to enhance the latter’s reflexivity 123 is difficult to square with criminal law.

Nevertheless, some degree of reflexivity, understood as adapting existing legal rules to the changing reality on the ground, is still possible in ICL, as illustrated by the Ntaganda case before the ICC. The charges against Bosco Ntaganda, former Deputy Chief of Staff of the Forces Patriotiques pour la libération du Congo (FPLC), involved the commission of sexual violence against girl soldiers within the FPLC under his command. 124 The existing international legal rules offered only limited protection from violence committed against members of one's own group.Specifically, they protected from within-group violence only the defenceless members of the armed group (for instance, those suffering wounds or sickness) but not the active combatants. 125 Yet, engaging in what has been described as ‘teleological reasoning’, 126 the Trial Chamber and Appeals Chamber concurred that, regardless of the lack of pre-existing rules that specifically addressed the matter: ‘… there is never a justification to engage in sexual violence against any person.’ 127 Thus, the ICC judges recognized for the first time in ICL gender-based crimes committed against members of the perpetrators’ own armed group as war crimes under articles 8(2)(b)(xxii) and 8(2)(e)(vi) Rome Statute. 128 Hence, despite the challenges of navigating the requirements of legality, the transformation of ICL rules to keep up with the changing normative and socio-political reality is possible.

Notably, reflexivity as a practice in ICL should not be confused with the more general notion of judicial creativity or activism, 129 which has attracted negative connotations for infringing upon the legality principle. Indeed, engaging in self-critical behaviour requires proactive behaviour and a certain degree of creativity, but because reflexivity is practice-driven and not outcome-driven, it does not have to result in undue expansions of the scope of ICL rules. In a well-known example, reflecting on the controversy triggered at Nuremberg by the proposition to convict persons for their participation in a conspiracy to commit crimes, 130 the Rome Statute drafters decided to exclude the concept of conspiracy from the text. 131 Nor does reflexivity necessarily result in complex novel interpretations of legal rules. In fact, it could serve to simplify ICL jurisprudence. For instance, after receiving criticism from external commentators, the ICC eventually dismissed the Latin terminology it had used in its early decisions with reference to the mental element of liability in favour of the plain text of Article 30 ICC Statute. 132

These examples show that reflexivity is already a core component of the practice of ICL. The criminalization of ecocide in the face of the looming climate change crisis and the unpredictability of the Anthropocene could offer a new opportunity to rethink the relationship between stability and reflexivity in ICL more generally.

B. Embracing Normativity

To engage in reflexive behaviour, international law should also engage with questions which inevitably require value judgments, such as: What counts as expert knowledge? Which actors claim the authority of expert knowledge? Which voices have remained marginalized? 133 In other words, legal practice should give up on the pretence to be objective and embrace the inevitable necessity of taking morally charged decisions. As noted by Mai and Boulot, the reality is that ‘we are unlikely to “have it all”’ in the Anthropocene, which requires tough choices to be made, such as which life forms to protect, whose interests to prioritize and what time scales to employ. 134 Those choices would be made by all participants in the legal field with reference to the specific functions they perform in that field: Legal scholars and non-governmental organization would make normative choices when advising on a particular definition of ecocide, states — when deciding on whether to support that definition and adopt in into the Rome Statute, and judges — when interpreting and enforcing ecocide in ICC jurisprudence. While the rest of this section focuses specifically on the questions which ICC judges would have to engage with during hypothetical ecocide trials, those are the same questions faced by the advocates, academics and states who are currently debating the definition of ecocide.

A self-critical approach to engaging with the crime of ecocide requires a recognition that normative choices are ‘inescapable’ when designing environmental policies. 135 As noted by political ecologists, concepts such as environmental ‘degradation’ cannot be objectively defined because the construction of their meaning owes as much to scientific methods of assessment as to the morals, interests and values of the persons doing the assessment. 136 ICC judges will inevitably face such normative choices during an ecocide trial as they will have to choose which experts to work with and what models of evaluating harm to rely on. 137 Notably, the IEP has proposed ecocide to be a crime of endangerment: Criminal responsibility would be established for ‘the creation of a dangerous situation’ rather than for the actual materialization of that harm. 138 Consequently, in ecocide trials ICC judges might have to deal with hypothetical future scenarios. Yet, scientific assessments of the likelihood and extent of environmental harm resulting from a specific activity might vary greatly. For instance, commenting on a pipeline extension project, Greenpeace cited studies which had estimated between 10% and 29% chance of a ‘worst case’ oil spill along the Pacific Coast of the USA and Canada as a result of the increased number of oil tankers transporting the new quantities of oil. 139 Such variation in assessments grants significant discretion to the judges. The normative choices which ICC judges would have to make further involve other intersecting considerations such as protecting the rights of the accused (which might require preference for more conservative estimations) and delivering meaningful retribution for the harm suffered by the environment (which might require more ambitious estimations).

A further set of normative questions would be encountered during ecocide trials when trying to account for the interconnectedness between social and environmental harm. 140 ICC judges will first have to decide to what extent to incorporate the concerns of the financially worst-off groups of people when determining the socio-ecological impact of a specific conduct. The environmental costs borne by the poor can remain ‘largely invisible in aggregate economic statistics’. 141 ICC judges could make the choice to rely on aggregate statistics for the purpose of time and resource efficiency or engage in a more rigorous socio-economic assessment. 142 If they chose the second approach, it raises a new question on its own: How to integrate such concerns. One option is to adopt the classic egalitarian logic (ascribing equal value to the benefits of all) and another one — to adopt a prioritarian logic (ascribing more value to the benefits of the worst-off). 143 Neither option is value neutral as they each embody a specific normative commitment: 144 to egalitarianism and redistribution, respectively.

Determining the extent to which the interests of future generations should be featured in environmental assessments requires further normative choices from international judges. Even though some scholars have pointed out that future generations might be of marginal concern to the Court, 145 if ecocide is criminalized, the ICC will have to engage with that question in assessing the extent of the harm caused. 146 ICC judges might choose to follow the popular formula that socio-economic activities should not leave future generations worse-off than present ones. 147 But this formula raises the question: ‘worse-off’ in terms of what ? As observed by Caney, the conventional economic analysis of GDP and resources is incapable of capturing the notion of intergenerational justice. Instead, Caney suggests, future generations should not be left worse-off in terms of ‘capabilities’ — the capabilities to live a healthy life in harmony with other species and the environment. 148 Yet, ‘capabilities’ that include both material and non-material aspects are hard to quantify and any attempts to do so will reintroduce questions of the morality and values that underpin a particular interpretation of a ‘good life’. The ICC judges would, thus, face the choice between the resource-based formula and various manifestations of the capabilities formula. Such decisions will be further complicated by the question of how to reconcile intergenerational justice with other ethics. As noted by Kanbur and Shue, considerations of justice between generations must be balanced with those of justice within generations to avoid imposing further harsh burdens on poor communities. 149 Thus, at any point of the ecocide trial, the judges would have to not only make normative choices but also assess how a particular question interacts with the other ones at stake.

Embracing such decisions might be a challenging endeavour at the ICC, which has generally avoided questions concerning social justice. ICC judges have been eager to emphasize that the Court’s mandate is limited to retributive justice in the form of assessing the charges brought against the individual at trial and excludes ‘political or even humanitarian goals’, 150 such as ‘to restore social justice and to heal the wounds’ of the afflicted communities. 151 Yet, the insights from critical environmental law scholarship suggest that normative choices are inevitable when environmental justice is concerned. As discussed, even if the ICC adopts the linear and reductionist mentality of IEL and assumes away the complexities of environmental assessments and their socio-ecological implications, this would still be a normative choice.

For that reason, engaging with the challenges of making such choices is preferable to the pretence of objective rationality and value neutrality. In this respect, it is crucial that normativity is embraced alongside reflexivity. The former enables an honest account of the rationales behind taking a particular approach in ecocide jurisprudence and the latter — a continuous (re)assessment of the consequences of that approach. Without embracing reflexivity, ecocide jurisprudence would risk institutionalizing ineffective practices. Without embracing normativity, it would be difficult to trace back the source of ineffectiveness and pursue meaningful reforms.

The 2021 IEP’s definition of ecocide was born out of the admirable aspiration to offer greater protection to the environment, while building on familiar IEL principles, such as sustainable development. However, this approach might result in the uncritical integration of concepts and practices with an ambiguous performance record. Instead of reforming the definition of ecocide and the role of IEL principles in it, this article took an alternative approach and proposed a discussion of the challenges that ecocide prosecutions will face in the Anthropocene and the tools ICC judges would need to be equipped with to face those challenges, namely, embracing reflexivity and normativity in legal practice.

In doing so, this article left open the broader question of whether ecocide should be criminalized in ICL at all. For some readers, the difficulties of assessing environmental harm through the medium of criminal law discussed in this article might serve as further evidence to support the argument that the ICL, and the international law system more generally, is ill-equipped for that purpose. Indeed, the inevitable moral dilemmas resulting from the complexity of environmental harm and the risks of further legitimizing extractivism and greenwashing activities by focusing on the individual accused could be taken to confirm the criticism that a growing number of legal scholars have expressed with regard to the proposed criminalization of ecocide. 152

However, the findings of this article could also be interpreted in a different way — as opening new avenues for thinking about both environmental justice and international criminal justice. From this perspective, the uncertainty and complexity of the Anthropocene highlight the urgent necessity of a fundamental rethinking of international law, including ICL. As observed by Grear, ‘law is not a stranger to shifts of meanings’. 153 While the practice of international law, and especially IEL, has historically enabled unsustainable modes of extraction and development, on this account, law and legal argument could also ‘destabiliz[e] meanings’. 154 It is to this destabilizing potential of international law that the processes of critical self-reflection and embracing normativity, as discussed in this article, contribute.

Whether the process of destabilizing unsustainable structures and practices to address environmental harm could or should be accomplished through the medium of ICL specifically is a question that remains open to future debate. What this article aimed to show is that, regardless of which position one takes in that debate, justice for individual acts of ecocide cannot be separated from addressing the broader context of socio-ecological injustices.

I would like to thank Adam Branch, Leila Sadat, the participants at the 2023 ICC Scholars Forum, and the anonymous reviewers for their throughtful comments on this article.

ICC, Office of the Prosecutor, Strategic Plan 2023–2025 , 13 June 2023, available online at https://www.icc-cpi.int/sites/default/files/2023-08/2023-strategic-plan-otp-v.3.pdf (visited 6 February 2023), at 17.

Art. 8(2)(b)(iv) ICCSt.

A. Gauger et al., The Ecocide Project: Ecocide is the Missing 5th Crime Against Peace , Human Rights Consortium (2013), available online at https://sas-space.sas.ac.uk/4830/1/Ecocide_research_report_19_July_13.pdf (visited 21 June 2023).

The Anthropocene is ‘an unofficial scientific term referring to a human imprint on the Earth system that is already so profound as to have reached geological magnitude’. D. Vidas, J. Zalasiewicz, and M. Williams, ‘What Is the Anthropocene – and Why Is It Relevant for International Law?’ 25 Yearbook of International Environmental Law (2015) 3–23, at 3.

Independent Expert Panel for the Legal Definition of Ecocide, Commentary and Core Text , Stop Ecocide Foundation, June 2021, available online at https://static1.squarespace.com/static/5ca2608ab914493c64ef1f6d/t/60d7479cf8e7e5461534dd07/1624721314430/SE+Foundation+Commentary+and+core+text+revised+%281%29.pdf (visited 21 June 2023).

Ibid. , at 5.

Ibid. , emphasis added.

Ibid. , at 10.

A. Philippopoulos-Mihalopoulos, ‘Towards a Critical Environmental Law’, in A. Philippopoulos-Mihalopoulos (ed.), Law and Ecology: New Environmental Foundations (Routledge, 2011) 18–38; A. Philippopoulos-Mihalopoulos, ‘Critical Environmental Law in the Anthropocene’, in L.J. Kotzé (ed.), Environmental Law and Governance for the Anthropocene (Hart Publishing, 2017) 117–136; B. Lange, ‘Foucauldian-inspired Discourse Analysis: A Contribution to Critical Environmental Law Scholarship?’, in A. Philippopoulos-Mihalopoulos (ed.), Law and Ecology: New Environmental Foundations (Routledge, 2011) 39–64; A. Grear, ‘‘Anthropocene, Capitalocene, Chthulucene’: Re-encountering Environmental Law and its ‘Subjects’ with Haraway and New Materialism’, in L.J. Kotzé (ed.), Environmental Law and Governance for the Anthropocene (Hart Publishing, 2017) 77–96; S. Adelman, ‘A Legal Paradigm Shift Towards Climate Justice in the Anthropocene’, 11 Oñati Socio-Legal Series (2021) 44–68; S. Adelman, ‘The Sustainable Development Goals, Anthropocentrism and Neoliberalism’, in D. French and L.J. Kotzé (eds), Sustainable Development Goals: Law, Theory and Implementation (Edward Elgar Publishing, 2018) 15–40; A. Boukli and A. Kotsakis, ‘Transversal Harm and Zemiology: Reconsidering Green Criminology and Mineral Extractivism in Cerro de Pasco, Peru’, Critical Criminology (2023) 1–24; A. Kotsakis and A. Boukli, ‘Transversal Harm, Regulation, and the Tolerance of Oil Disasters’, 12 Transnational Environmental Law (2023) 71–94.

Vidas, Zalasiewicz, and Williams, supra note 4; J.E. Viñuales, ‘The Organisation of the Anthropocene: In Our Hands?’  Brill Research Perspective (2018) 1–81; L. Kotzé, ‘Earth System Law for the Anthropocene: Rethinking Environmental Law Alongside the Earth System Metaphor’, 11 Transnational Legal Theory (2020) 75–104; R.E. Kim, ‘Taming Gaia 2.0: Earth System Law in the Ruptured Anthropocene’, 9 The Anthropocene Review (2022) 411–424.

J. Verschuuren, ‘The Role of Sustainable Development and the Associated Principles of Environmental Law and Governance in the Anthropocene’, in L.J. Kotzé (ed.), Environmental Law and Governance for the Anthropocene (Hart Publishing, 2017) 3–30, at 19.

K. Heller, ‘The Crime of Ecocide in Action’, Opinio Juris , 28 June 2021, available online at http://opiniojuris.org/2021/06/28/the-crime-of-ecocide-in-action/ (visited 21 June 2023); E. Winter, ‘Stop Ecocide International’s Blueprint for Ecocide Is Compromised by Anthropocentrism: A New Architect Must Be Found’, Israel Law Review (2023) 1–35.

J. Dryzek and J. Pickering, The Politics of the Anthropocene (Oxford University Press, 2019), at 34; J.B. Ruhl, ‘Thinking of Environmental Law as a Complex Adaptive System: How to Clean Up the Environment by Making a Mess of Environmental Law’, 34 Houston Law Review (1997) 933–1002, at 947.

L. Mai and E. Boulot, ‘Harnessing the Transformative Potential of Earth System Law: From Theory to Practice’, 7 Earth System Governance (2021) 1–12, at 5.

Kotzé, supra note 10, at 77.

Mai and Boulot, supra note 14, at 7.

M. Kooijman, ‘From Anthropos to Oikos in International Criminal Law: A Critical-Theoretical Exploration of Ecocide as an ‘Ecocentric’ Amendment to the Rome Statute’, 52 Netherlands Yearbook of International Law 2021 (2023) 101–132, at 104; E. Cusato and E. Jones, ‘The ‘Imbroglio’ of Ecocide: A Political Economic Analysis’, 37 Leiden Journal of International Law (2023) 1–20.

Cusato and Jones, ibid. , at 5.

L. Rajamani and J. Peel (eds), The Oxford Handbook of International Environmental Law (2nd edn., Oxford University Press, 2021).

Report of the United Nations Conference on the Human Environment, Stockholm , 5-16 June 1972 , A/CONF.48/14/Rev.1, available online at https://undocs.org/Home/Mobile?FinalSymbol=A%2FCONF.48%2F14%2FRev.1&Language=E&DeviceType=Desktop&LangRequested=False (visited 21 June 2023), at 3.

R. Gordon, ‘Unsustainable Development’, in S. Alam, S. Atapattu, C. Gonzalez and J. Razzaque (eds), International Environmental Law and the Global South (Cambridge University Press, 2015) 50–73, at 61–63.

Report of the United Nations Conference on Environment and Development, Rio de. Janeiro, 3-14 June 1992 , A/CONF.151/26 (Vol. I), 12 August 1992, available online at https://www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/A_CONF.151_26_Vol.I_Declaration.pdf (visited 21 June 2023), Principle 4.

F. Biermann, ‘The Future of ‘Environmental’ Policy in the Anthropocene: Time for a Paradigm Shift’, 30 Environmental Politics (2021) 61–80, at 62.

D. Robinson, ‘Ecocide — Puzzles and Possibilities’, 20 Journal of International Criminal Justice ( JICJ ) (2022) 313–347, at 333–334.

IEP, supra note 5, at 10.

Robinson, supra note 25, at 335.

Promise Institute for Human Rights (UCLA) Group of Experts, Proposed Definition of Ecocide , 9 April 2021, available online at https://ecocidelaw.com/wp-content/uploads/2022/02/Proposed-Definition-of-Ecocide-Promise-Group-April-9-2021-final.pdf (visited 21 June 2023), at 6.

M. Gillett, Prosecuting Environmental Harm before the International Criminal Court (Cambridge University Press, 2022), at 348–350.

For a criticism see Winter, supra note 12, at 22–24.

ICC, Statement by H. E. John H. Licht, General Debate of the 18 th Session of the ASP to the Rome Statute of the ICC, 2 nd -7 th December 2019 , available online at https://asp.icc-cpi.int/iccdocs/asp_docs/ASP18/GD.VAN.2.12.pdf (visited 21 June 2023).

Gauger et al., supra note 3.

B. Lay et al., ‘Timely and Necessary: Ecocide Law as Urgent and Emerging’, 28 The Journal Jurisprudence (2015) 431–452, at 437.

L. Kotzé and R. Kim, ‘Exploring the Analytical, Normative and Transformative Dimensions of Earth System Law’, 50 Environmental Policy and Law (2020) 457–470, at 462, emphasis in the original. See also Gordon, supra note 22, at 63.

Lange, supra note 9, at 40. See also Philippopoulos-Mihalopoulos, Towards a Critical Environmental Law , supra note 9.

Lange, supra note 9, at 44–45.

U. Natarajan and K. Khoday, ‘Locating Nature: Making and Unmaking International Law’, in U. Natarajan and J. Dehm (eds), Locating Nature: Making and Unmaking International Law (Cambridge University Press, 2022) 21–44, at 23.

Adelman, Legal Paradigm Shift , supra note 9, at 49.

Cusato and Jones, supra note 17, at 8.

Paris Agreement, United Nations, 2015, available online at https://unfccc.int/sites/default/files/english_paris_agreement.pdf (visited 21 June 2023), Art. 4(3).

Lay et al., supra note 33, at 437.

For a discussion of the integration of international humanitarian law with IEL see J. de Hemptinne and R. van Steenberghe, ‘Symposium, The Protection of the Environment during Warfare: An International Environmental Law Perspective: Foreword’, 20 JICJ (2022) 1119–1122; R. van Steenberghe, ‘The Interplay between International Humanitarian Law and International Environmental Law: Towards a Comprehensive Framework for a Better Protection of the Environment in Armed Conflict’, 20 JICJ (2022) 1123–1154.

C. Voigt, ‘International Environmental Responsibility and Liability’, in L. Rajamani and J. Peel (eds), The Oxford Handbook of International Environmental Law (2nd edn., Oxford University Press, 2021) 1003–1021, at 1004. Exceptions to this trend include the UN Convention on the Law of the Sea and the incorporation of civil liability provisions in some multilateral environmental agreements. Ibid. , at 1004, 1009.

Ibid. , at 1010.

A. Boyle, C. Redgwell and P.W. Birnie,  Birnie, Boyle, and Redgwell's International Law and the Environment (4th edn., Oxford University Press, 2021), at 249.

Gillett, supra note 29, at 38.

Kooijman, supra note 17, at 117–118. See also Cusato and Jones, supra note 17, at 11.

H. Stevenson, Institutionalizing Unsustainability: The Paradox of Global Climate Governance (University of California Press, 2013).

Ibid. , at 2.

Kotzé and Kim, supra note 34, at 462.

See Section 2.

T. Lindgren, ‘Grounding Ecocide, Humanity and International Law’, in F. Mégret, U. Natarajan and V. Chapaux (eds), Routledge Handbook on Anthropocentrism and International Law (Routledge, 2023); Cusato and Jones, supra note 17.

Kotzé, supra note 10, at 77; R.E. Kim and K. Bosselmann, ‘International Environmental Law in the Anthropocene: Towards a Purposive System of Multilateral Environmental Agreements’, 2 Transnational Environmental Law (2013) 285–309.

L. Kotzé and R. Kim, ‘Earth System Law: The Juridical Dimensions of Earth System Governance’, 1 Earth System Governance (2019) 1–12, at 4. See also Adelman, Legal Paradigm Shift , supra note 9.

Viñuales, supra note 10, at 51.

W. Adams, Green Development: Environment and Sustainability in a Developing World (3rd edn., Routledge, 2009), at 94.

Ibid. , at 124–125. See also Adelman, Sustainable Development Goals , supra note 9; Gordon, supra note 22, at 66; Cusato and Jones, supra note 17, at 14–15.

Kotzé and Kim, supra note 54, at 4.

Kotzé and Kim, supra note 34, at 460. See also R. Norgaard, ‘Ecosystem Services: From Eye-Opening Metaphor to Complexity Blinder’, 69 Ecological Economics (2010) 1219–1227, at 1219.

C.G. Gonzalez, ‘Global Justice in the Anthropocene’, in L.J. Kotzé (ed.), Environmental Law and Governance for the Anthropocene (Hart Publishing, 2017) 219–240, at 228.

P. Christoff and R. Eckersley, Globalization and the Environment (Rowman & Littlefield Publishers, Inc., 2013), at 50, emphasis added.

Cusato and Jones, supra note 17, at 15–16.

Verschuuren, supra note 11, at 16. See also Mai and Boulot, supra note 14, at 1.

Dryzek and Pickering, supra note 13, at 2.

Ibid. , at 8. See also Vidas, Zalasiewicz and Williams, supra note 4, at 4.

Dryzek and Pickering, supra note 13, at 4–5, emphasis added.

Kim, supra note 10, at 415.

Viñuales, supra note 10, at 29.

Gonzalez, supra note 60, at 221; Kotzé and Kim, supra note 54, at 3.

Philippopolous-Mihalopoulos, Anthropocene , supra note 9, at 133; Adelman, Legal Paradigm Shift , supra note 9, at 50. Kotsakis and Boukli, Oil Disasters , supra note 9, at 87.

Philippopolous-Mihalopoulos, Anthropocene , supra note 9, at 125.

Adelman, Sustainable Development Goals , supra note 9, at 32.

Philippopolous-Mihalopoulos, Anthropocene , supra note 9, at 130, emphasis added.

Grear, supra note 9, at 85, emphasis omitted. See also Cusato and Jones, supra note 17, at 13–14.

Boukli and Kotsakis, Mineral Extractivism , supra note 9, at 15–16.

Cusato and Jones, supra note 17. Kooijman, supra note 17.

D. Kennedy, Of War and Law (Princeton University Press, 2006), at 143.

Winter, supra note 12, at 13–14.

Cusato and Jones, supra note 17, at 14.

Adams, supra note 56, at 313–317. Gillett, supra note 29, at 168–170.

World Bank, ‘World Bank Approves Additional Funding to Enhance Dam Safety in India’, 1 March 2019, available online at https://www.worldbank.org/en/news/press-release/2019/03/01/world-bank-approves-additional-funding-to-enhance-dam-safety-in-india (visited 21 June 2023).

Heller, supra note 12.

Adams, supra note 56, at 308–310.

Ibid. , at 308–309.

E. Meijaard et al., ‘The Environmental Impacts of Palm Oil in Context’, 6  Nature Plants (2020) 1418–1426, at 1420–22.

See similar observations in Meijaard et al., ibid. , at 1418.

WWF, ‘8 Things to Know about Palm Oil’, https://www.wwf.org.uk/updates/8-things-know-about-palm-oil (visited 21 June 2023).

Meijaard et al., supra note 85, at 1423.

J. and B. White ‘Gendered Experiences of Dispossession: Oil Palm Expansion in a Dayak Hibun Company in West Kalimantan’, 39 Journal of Peasant Studies (2012) 995–1016.

Ibid. , at 1001–1006.

Gillett, supra note 29, at 184.

Kotsakis and Boukli, Oil Disasters , supra note 9, at 81.

Ibid. , at 90.

Ibid. , at 89.

Boukli and Kotsakis, Mineral Extractivism , supra note 9, at 6.

Kotsakis and Boukli, Oil Disasters , supra note 9, at 92–93. Adelman, Legal Paradigm Shift , supra note 9, at 50–51.

M. Mehling, ‘Market Mechanisms’, in L. Rajamani and J. Peel (eds), The Oxford Handbook of International Environmental Law (2nd edn., Oxford University Press, 2021) 920–936, at 922–923.

K. McAfee, ‘The Contradictory Logic of Global Ecosystem Services Markets’, 43 Development and Change (2012), 105–131, at 105.

Mehling, supra note 98, at 928–929.

McAfee, supra note 99.

Ibid. , at 114.

Norgaard, supra note 59, at 1221–1222.

Ibid. , 1221–1222.

M.A. Palmer and S. Filoso, ‘Restoration of Ecosystem Services for Environmental Markets’, 325 Science (2009) 575–576, at 575.

Heller, supra note 12. See also Gillett, supra note 29, at 164.

Stevenson, supra note 48, at 207–208. See also Kotzé and Kim, supra note 34, at 462.

Kim and Kotzé, supra note 54, at 4.

Viñuales, supra note 10.

Vidas, Zalasiewicz, and Williams, supra note 4, at 21.

Kim, supra note 10, at 417.

Dryzek and Pickering, supra note 13, at 52.

Kotzé and Kim, supra note 34, at 466. Kim, supra note 10, at 419.

Dryzek and Pickering, supra note 13, at 34.

Ibid. , pp. 52–56.

Ruhl, supra note 13, at 947.

I would like to thank the anonymous reviewer for highlighting this point.

Julian Webb, ‘Law, Ethics, and Complexity: Complexity Theory & (and) the Normative Reconstruction of Law’, 52 Cleveland State Law Review (2004) 227–242, at 232–234.

J. Brunnée and S. Toope, ‘Interactional International Law and the Practice of Legality’, in E. Adler and V. Pouliot (eds), International Practices (Cambridge University Press, 2011) 108–135, at 111.

B. Van Schaack, ‘Crimen Sine Lege: Judicial Lawmaking at the Intersection of Law and Morals’, 97 Georgetown Law Journal (2008) 119–192, at 146147.

Rulh, supra note 13, at 991.

Judgment on the appeal of Mr Ntaganda against the ‘Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9’, Ntaganda (ICC-01/04-02/06-1962), Appeals Chamber, 15 June 2017, § 3.

K. Heller, ‘ICC Appeals Chamber Says A War Crime Does Not Have to Violate IHL’, Opinio Juris , 15 June 2017, available online at http://opiniojuris.org/2017/06/15/icc-appeals-chamber-holds-a-war-crime-does-not-have-to-violate-ihl/ (visited 21 June 2023).

Judgment on the Appeal, Ntaganda , supra note 124, § 65, emphasis added.

Ibid. , § 65.

S. Darcy and J. Powderly (eds), Judicial Creativity at the International Criminal Tribunals (Oxford University Press, 2010).

For a discussion see L. Yanev, ‘A Janus-faced Concept: Nuremberg’s Law on Conspiracy vis-à-vis the Notion of Joint Criminal Enterprise’, 26 Criminal Law Forum (2015) 419–456. Lawyers with civil law background found the idea of imputing liability for crimes on the sole basis of conspiring to commit those crimes disturbing: ibid. , at 435–436.

P. Saland, ‘International Criminal Law Principles’, in R. Lee (ed.), The International Criminal Court: The Making of the Rome Statute – Issues, Negotiations, Results (Kluwer Law International, 1999) 189–216, at 199.

L.G. Minkova, Responsibility on Trial: Liability Standards in International Criminal Law (Cambridge University Press, 2023), at 180–181.

Those questions have been raised by Kim, supra note 10, 419. See also Mai and Boulot, supra note 14, at 5.

Mai and Boulot, supra note 14, at 5.

M.D. Adler and N. Treich, ‘Prioritarianism and Climate Change’, 62 Environmental and Resource Economics (2015) 279–308, at 280.

T.A. Benjaminsen, ‘Political Ecologies of Environmental Degradation and Marginalization’, in T. Perreault, G. Bridge, and J. McCarthy (eds), The Routledge Handbook of Political Ecology (Routledge, 2015) 354–365, at 356–357; M. Hulme, Why We Disagree about Climate Change (Cambridge University Press, 2009), at 112.

Gillett, supra note 29, at 201–202.

IEP, supra note 5, at 12. For a critique see Gillett, supra note 29, at 348, fn.148.

T. Donaghy, Tar Sands Tanker Superhighway Threatens Pacific Coast Waters , Greenpeace, 26 June 2018, available online at https://www.greenpeace.org/usa/wp-content/uploads/2018/07/227a9d44-tar-sands-web-mech.pdf (visited 21 June 2023), at 9.

See section 4(A).

J. Rosenberg and S. Hallegatte, ‘Poor People on the Front Line: The Impacts of Climate Change on Poverty in 2030’, in S.M.R. Kanbur and H. Shue (eds), Climate Justice: Integrating Economics and Philosophy (Oxford University Press, 2018) 24–42, at 24.

N. Hassoun and A. Herlitz, ‘Climate Change and Inequity: How to Think about Inequities in Different Dimensions’, in S.M.R. Kanbur and H. Shue (eds), Climate Justice: Integrating Economics and Philosophy (Oxford University Press, 2018) 95–112, at 104; Adler and Treich, supra note 135, at 279–308.

Adler and Treich, supra note 135, at 280.

Kooijman, supra note 17, at 122.

Gillett, supra note 29, at 173–174.

S. Caney, ‘Justice and Posterity’, in S.M.R. Kanbur and H. Shue (eds), Climate Justice: Integrating Economics and Philosophy (Oxford University Press, 2018), 157–174, at 158.

Ibid. , at 164–165.

S.M.R. Kanbur and H. Shue, ‘Climate Justice: Integrating Economics and Philosophy’, in Kanbur and Shue (eds), supra note 147, 1–23, at 1.

Reasons of Judge Geoffrey Henderson, Gbagbo and Blé Goudé (ICC-02/11-01/15- 1263-AnxB-Red), Trial Chamber I, 16 July 2019, § 10.

Separate opinion Judge Christine Van den Wyngaert and Judge Howard Morrison, Bemba (ICC-01/05-01/08-3636-Anx2), Appeals Chamber, 8 June 2018, § 75.

Kooijman, supra note 17; Cusato and Jones, supra note 17; Lindgren, supra note 52.

Grear, supra note 9, at 94.

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