The Missing Defendant: A Rationale for Corporate Criminal Liability for Ecocide under the Rome Statute
Toshika Sharma
Introduction
“Ecocide”, which refers to severe destruction of the natural environment by deliberate or negligent human action, has been proposed to be recognised as the fifth international crime, altogether with genocide, crimes against humanity, war crimes and the crime of aggression. In June 2021, the Independent Expert Panel (IEP) for the Legal Definition of Ecocide, convened by Stop Ecocide International, defined “ecocide” as “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.” This definition has also been advocated in a proposal submitted by Vanuatu, Fiji and Samoa to the International Criminal Court to amend the Rome Statute to designate ecocide as an international crime.
The term ecocide gained prominence in the late 1960s after the large-scale environmental degradation caused during the Vietnam War. Amidst this context of environmental destruction by the States during wartime, Article 8(2)(b)(iv) of the Rome Statute was enacted, which prohibits severe damage to the natural environment only when committed during an international armed conflict. However, in the present era, even larger and more widespread environmental destruction is caused by corporations during peacetime. A recent study, aimed at assisting governments in holding corporations financially accountable, reported that the world’s biggest corporations have caused a total of $28 trillion in climate damage.
In this context, this blog post argues for the recognition of corporate criminal liability under the Rome Statute as a necessary step toward holding corporations accountable for acts of ecocide. To advance this contention, this post analyses gaps that impede the prosecution of corporate actors within the current framework of ecocide, and evaluates national legal approaches and emerging cases to outline possible models for criminalising ecocide at the international level.
Current Challenges in holding Corporate Individuals Liable for Ecocide
Article 25(1) of the Rome Statute limits the jurisdiction of the International Criminal Court to natural persons. Therefore, even if ecocide is recognised as an international crime, only individual corporate persons and not the corporations would be liable for its commission. Imputing such liability on corporate individuals suffers from various issues which may be outlined as the gravity and nature of intent in the definition of ecocide, and the complexity of attributing liability within the corporation.
A. Knowledge and Intent Thresholds
The proposed definition of ecocide requires the committing party to have “knowledge” of the environmental damage likely to be caused by their acts. The earlier definition of ecocide proposed by Richard A. Falk in 1973 described it using terms like “intent to disrupt or destroy” a human ecosystem. Along with being anthropocentric, this definition mirrored genocide in its articulation and accountability. However, even though the definition by the IEP in 2021 has evolved to be eco-centric, it still suffers from a lack of clarity on the element of mens rea of the alleged act. “Knowledge”, as defined under Article 30(3) of the Rome Statute, means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. This emphasises the foreseeability of the harm caused, which may simply allow perpetrators to plead ignorance of the acts leading to environmental harm, as such corporate actors may contend that they were not acting with the knowledge or intention of committing any widespread destruction. Westing even contends that in the context of ecocide, intent is often irrelevant and impossible to prove, considering that environmental destruction is rarely the explicit objective or a deliberate aim of the alleged corporate activity. To avoid such challenges around determining intent, ecocide has also been proposed as a strict liability offence, so that the corporations cannot shield themselves due to a lack of knowledge of the harm.
These difficulties surrounding the mental element also expose broader limitations in the current accountability framework proposed for ecocide. The approach by Stop Ecocide International largely rests on the assumption that imposing criminal liability on individuals will meaningfully alter corporate behaviour. However, this assumption appears overly optimistic. Emphasising individual accountability allows corporations to distance themselves from wrongdoing by terminating the employment of responsible individuals while avoiding institutional responsibility for the harm caused. Thus, such a model of individual accountability for ecocide may at best result in temporary reputational damage to the corporation, and later on, the corporation might just dissociate itself from the crime.
B. Attribution Complexity
The effectiveness of the proposal to amend the Rome Statute depends on whether ecocide-related activities can be personally attributed to the corporate executives. They can be held accountable for corporate activities in three waysunder the Rome Statute: (i) indirect perpetration, (ii) aiding and abetting [Article 25(3)(c) of the Statute], and (iii) superior responsibility [Article 28 of the Statute].
Indirect perpetration: CEOs or Directors can be held liable via indirect perpetration when there exists a significant degree of control by them over the crimes committed by another person. However, such a high degree of control is unusual in corporations due to their complex structures, and as a consequence, the CEO is shielded by multiple levels of hierarchy and distinct legal entities.
Aiding and abetting: Even though the Office of the Prosecutor’s policy paper sets out that individuals can be held responsible under Article 25(3)(c) for environmental crimes, the actual challenge lies in establishing CEO/Director’s accountability through aiding and abetting. In the Bemba trial, the ICC held that the term “purpose” in the opening clause “for the purpose of facilitating the commission of such a crime” in Article 25(3)(c) goes beyond the ordinary mens rea standard encapsulated in Article 30 of the Statute and penalises such assistance only if a higher subjective element is satisfied on the part of the accessory. In the case of ecocide, meeting this higher standard of mens rea is difficult due to the complex and multi-layered nature of corporate decision-making. Environmental harm typically results from collective processes rather than direct, intentional acts of individual executives, making it hard to attribute such specific intent to an individual CEO or Director.
Superior Responsibility: The principle of holding a superior responsible for the acts of its subordinates is also difficult to establish in the case of ecocide because the senior executive might not even be aware of the crime due to the intricate and inaccessible structure of corporations.
The Rome Statute did not yet recognise the necessity of corporate criminal liability because the present four international crimes involve direct and identifiable human conduct; in such cases, the roles and culpability of the individuals within an organisation or a corporation could be clearly established. For instance, in the Zyklon B. case, the three accused held different positions within the company (one was the owner, the other was the second in the chain of command, and the third one was a mere technician), which supplied poison gas to the Nazi concentration camps. The court acquitted the technician and held the other two liable, while giving the reasoning that knowledge of the gas's intended use and the capacity to influence or stop its transfer were the primary factors in determining culpability. This case demonstrates that individual accountability in a company can be certainly attributed when the individuals of the company are directly involved. However, in the context of ecocide, active participation of the individual actor is not necessary and therefore holding individuals liable is more strenuous in complex company structures.
Furthermore, the definition of ecocide encompasses “long-term damage” to the environment. Given the extended temporal dimension of such harm, the individuals occupying corporate leadership positions, such as CEOs or other key executives, are likely to change over time. This temporal discontinuity raises a complex question of attribution of liability. If liability is imputed to the executive who authorised or initiated the project that subsequently resulted in ecological destruction, the element of foreseeability becomes problematic, as such an individual may not have been able to reasonably anticipate the eventual magnitude or manifestation of harm, particularly after leaving office. Conversely, if responsibility is imposed on the executive who holds office at the time the environmental damage materialises, that individual may lack both the requisite mens rea and direct knowledge of the prior decisions that precipitated the harm.
Conjointly, these structural and temporal challenges expose a fundamental limitation of relying solely on individual criminal liability for ecocide committed through corporate activity. The complex and hierarchical nature of corporations obscures the level of control and knowledge required to attribute responsibility to specific individuals under the Rome Statute of the International Criminal Court. At the same time, the long-term nature of environmental harm makes it difficult to identify which executive possessed the requisite mens rea when the damage ultimately materialised. These combined difficulties create significant accountability gaps, suggesting that effective prosecution of ecocide may require recognition of corporate criminal liability alongside individual responsibility.
Limitations of Domestic Frameworks and the Need for International Recognition of Corporate Accountability for Ecocide
While several domestic legal systems have begun recognising corporate liability for environmental harm, these developments primarily highlight the limitations of relying on national frameworks alone. Given the transnational nature of corporate activity and environmental damage, domestic regimes often remain constrained by jurisdictional and enforcement barriers. Therefore, these developments must be viewed as reinforcing the need for a coherent international framework under the Rome Statute to effectively address corporate accountability for ecocide.
One of the major such developments at the domestic level in this regard is the new EU Environmental Crime Directive, which classifies environmental offences as qualified criminal offences and depending on the severity of crime, these offences may attract imprisonment up to 10 years for offending individuals and severe sanctions for offending organisations (including multinational companies) comprising extensive fines, license withdrawal and mandated closure. In February 2024, Belgium became the first EU country to recognise ecocide as an international crime in Article 94 of the new Belgian Penal Code, which sanctions both natural and legal persons.
The UK Supreme Court in Okpabi v. Royal Dutch Shell Plc, supported corporate liability for environmental harm on a mass scale. Fiji, one of the island states that submitted proposal for criminalising ecocide, witnessed a significant development in its domestic environmental jurisprudence with its first environmental crime sentence in April 2022. In State v. Freesoul Real Estate Development (Fiji) PTE Ltd., Fiji’s High Court imposed a substantial monetary penalty on Chinese resort development company Freesoul Ltd. after finding that its resort development activities had caused extensive damage to local marine life, thereby violating the provisions of Fiji’s Environment Management Act. While delivering this judgment, Justice Gounder expressed his inability to impose a custodial sentence on a corporate entity. At the same time, he emphasised the seriousness of environmental harm, stating that “This case is about environment, criminal responsibility and punishment.”
However, there also exist cases like Chevron Corporation v. Steven Donziger, where the US Supreme Court held the judgment passed by the Ecuadorian Court against Chevron to be unenforceable. Thus, despite judicial findings of environmental offence being committed in Ecuador, the absence of cross-border enforcement mechanisms enabled Chevron to evade criminal accountability. This case underscores the structural deficiency in cross-border enforcement and illustrates that, in the absence of a universal legal mechanism, domestic jurisdictions alone remain ill-equipped to hold multinational corporations effectively liable for ecocide.
The concept of “eco-global criminology” introduced by Rob White advocates for a criminological approach that transcends national boundaries. Hence, despite the existence of various national frameworks criminalising ecocide, due to challenges like the extraterritorial applicability of these domestic laws, there arises a need to have an international framework to overcome the ‘accountability gap’ or the ‘responsibility gap’ for environmental crimes committed by corporations.
The Way Forward
The proposal to amend the Rome Statute may not be effective in accomplishing its objective of restraining ecocide if the actual perpetrators are not held accountable. Given that CEOs make decisions for their companies and that shareholders, board members, directors, and other executives are involved, ecocide should be viewed as a “collective offence” when considering corporate responsibility and presenting it as a corporate crime. Pursuant to this, scholars also use the term “system criminality” to explain how there are no individuals in organisations and that organisations, not the individuals, commit crimes.
The Rome Statute’s travaux préparatoires indicate that the original draft of Article 25 would have allowed prosecution of both individuals and corporations. Article 17(6) of the Working Group on General Principles of Criminal Law’s draft of April 1, 1998 provided that “the criminal responsibility of legal persons shall not exclude the criminal responsibility of natural persons who are perpetrators or accomplices in the same crimes.” Further, according to Articles 23(5) & 23(6) of the July 3, 1998 draft, corporations can only be tried when the natural person who was in a position of control within the juridical person, was acting on the behalf of the juridical person with the latter’s explicit consent, and such natural person has been convicted of the alleged crime. Such models of individual and corporate criminal liability can be incorporated in the Rome Statute to ensure effective implementation of the punishment for the crime of ecocide. End Ecocide on Earthhas proposed to amend Article 25(1) to read as “The Court shall have jurisdiction over natural and fictional persons pursuant to this Statute.”
Moreover, it has been seen that the corporations are not made accountable to the real victims, thus, corporate responsibility shall also enable the affected person to seek reparations under Article 75 of the Rome Statute. For this, the provision under Article 75(2) should be amended to include corporations in the definition of “convicted person” against whom reparations can be claimed. In order for this approach to be more fruitful, it is also suggested that recipients of reparations should include non-human entities like animals, forests, or waterways, in addition to natural and legal persons.
Given that the definition of ecocide is inherently eco-centric, its effective implementation must also adopt an eco-centric approach. The need for corporate accountability was not felt for other international crimes because of their anthropocentric nature. However, an eco-centric offence demands that liability extend to the actual perpetrators, corporations that orchestrate large-scale environmental destruction, rather than to individuals who merely act as instruments of corporate policy. Therefore, unlike other anthropocentric international crimes, ecocide risks remaining a toothless tiger unless corporate criminal liability is incorporated within the Rome Statute.
Author:
Toshika Sharma is a third-year BA LLB (Hons.) student at Rajiv Gandhi National University of Law. Her research interests include International Criminal Law and Human Rights Law.
