Can You Attempt Ecocide? Criminal Liability and Environmental Harm

Introduction

Environmental harm is by nature irreversible, with no amount of liability which can ever restore it. Yet, international criminal law has recently attempted to impose liability not just for the harm already caused but also for environmental harm that has not been completed yet. It is not new that international law typically waits for atrocity to be completed before imposing liability. However, contemporary debates are recently introducing the term “ecocide”as a preventative tool of environmental damage. Ecocide is identified on the basis of the deliberate or negligent violation of state and human rights, producing (1) serious, and extensive or lasting, ecological damage, (2) international consequences, and (3) waste (Gray, 1996). The debate on how to best address ecocide has been discussed predominantly in the environmental governance sphere and within the international crime framework with the proposal to amend the Rome Statute. However, this challenge has been present long before these concerns emerged into the mainstream international debate, mainly seen with Vietnam’s recognition of ecocide in domestic criminal law as early as 1985 (Linh, 2025).

However, the primary question in this essay is whether the accepted international criminal law approach of imposing liability only after an atrocity occurs is defensible in the case of ecocide, where harm is gradual, foreseeable and to an extent scientifically predictable. This

essay does not only explore the contemporary challenge of criminalising environmental harm, but also whether the doctrine of attempt liability can be extended to the proposed international crime of ecocide, such that high-risk environmental conduct can have criminal responsibility attached to it before catastrophe fully materialises.

Ecocide and International Criminal Law

The concept of ecocide entered international discourse in 1970, when Arthur Galston first used the term to describe the ecological destruction caused by herbicidal warfare in Vietnam (Gray, 1996). Following this, Swedish Prime Minister Olof Palme's 1972 Stockholm Conference address and Polly Higgins's 2010 UN Law Commission proposal laid the

groundwork for the 2021 definition of ecocide, finalized by the Stop Ecocide Foundation's Independent Expert Panel (“Independent Expert Panel”, 2021). This marks a significant departure from the existing provision on environmental harm, Article 8(2)(b)(iv) of the Rome Statute, which addresses environmental destruction only in the context of armed conflict (Rome Statute, 1998). Under this article, the mens rea, also known as the “guilty mind” or the mental state, intent, or moral blameworthiness required to hold a person legally responsible for their actions, avoids the requirement for specific intent. This positions ecocide as a crime of advertent recklessness, bridging the gap between the intentional destruction already covered under war crimes law and the purely administrative environmental offences that currently exhaust domestic enforcement frameworks (Higgins et al., 2013). However, the question remains whether a legal framework built on human atrocities can successfully penalize the destruction of the natural world.

Attempt Liability in Criminal Law

Attempt is an inchoate offence. Looking at the general framework, attempt liability arises when the defendant has failed to commit the full offence. The law of attempt plays a role on different levels and differently depending on the jurisdiction. Broadly, it relies on the dangerousness or wrongfulness of the conduct and subjectively on the dangerousness and

culpability of the actor. This applies to a broad range of offences, but there are also specific crimes which, if attempted, are criminalised. Across different jurisdictions, both common and civil law, the normative justification for attempt liability rests on three foundations: subjective dangerousness revealed by the subjective dangerousness revealed by the actor’s conduct, the objective risk created by acts proximate to a serious offence, and the communicative function of law for condemning deliberate pursuit of a prohibited outcome. Where the contemplated harm is irreversible, the preventive rationale is as a result strengthened (American Law Institute, 1962)

Why the Attempt Doctrine is Difficult to Apply to Ecocide

The application of the attempt doctrine to ecocide confronts structural difficulties that do not arise in its application to ordinary crimes.

The first difficulty is doctrinal. Under the American Law Institute's Model Penal Code, attempt liability requires that the actor has taken a "substantial step" and forms part of the course of an act planned towards the completion of the offence (American Law Institute, 1962, § 5.01). This test was designed for discrete acts with a clear endpoint. Environmental harm differs because it typically accumulates over years and decades through incremental acts, which, if considered in isolation may appear lawful. For example, identifying a single moment when an actor has crossed the threshold from lawful industrial activity to a

substantial step toward ecocide is difficult to establish.

Second, environmental harm is multicausal. The attempt doctrine is designed around a single actor’s causal trajectory toward a specific harm and therefore cannot impose liability when there are dispersed, uncoordinated cumulative contributions to harm. Neither conspiracy doctrine nor joint enterprise liability resolves this, because contributors to ecological harm are typically not engaged in a common criminal enterprise and do not have a common premeditated or foreseeable plan (Higgins et al., 2013).

This leads to the third challenge in addressing ecocide through the international law framework. It is difficult to prove that an ecocide crime was foreseeable and intended. Proving the mens rea that the defendant was aware of a "substantial likelihood" of severe environmental damage is difficult in this context, as it would be assessed by reference to scientific evidence surrounding environmental harm risk which is often contested.

These challenges in applying criminal law to environmental concerns illustrate the difficulty of establishing a threshold for ecocide attempt liability. A liability threshold that is set too low risks criminalising legitimate industrial activity, and a standard set too high enables the completion of the offence with no preventative power over it (Gray, 1996).

Case Study: Belgium and Energy Risk

Belgium illustrates both the potential and the limits of preventive environmental criminalisation. As an industrialised, energy-dependent country, Belgium hosts significant nuclear installations and the Antwerp petrochemical complex, one of the largest in Europe. These activities generate environmental risks that are foreseeable, scientifically predictable, and potentially irreversible.

Environmental offences in Belgium are predominantly prosecuted as regulatory infractions rather than as crimes attracting significant imprisonment, and the threshold for criminal prosecution remains high. This reflects the broader EU criminal law tradition, in which criminal law is reserved for the most serious cases of culpable environmental destruction, while regulatory enforcement addresses industrial risk. Yet, the Belgian Penal Code incorporates endangerment offences that attach liability to risk-creating conduct before harm occurs. For example, provisions governing hazardous waste transport criminalise the creation of environmental risk irrespective of whether damage materialises. This demonstrates that the preventive structure required by attempted ecocide liability is already present in some national legal systems. In fact, in 2024 Belgium has become the first European country to recognise ecocide as an international crime (Stop Ecocide, 2025).

However, Domestic preventive criminalisation, despite it being progressive and setting external norms, cannot address the global character and international cooperation required in addressing ecological risk (Higgins et al., 2013). International criminal law must therefore

evolve to complement domestic environmental governance.

Conclusion

International criminal law was designed to account for completed atrocities. Ecocide, if it enters the Rome Statute, demands a more specific approach: liability for foreseeable catastrophe, before our ecosystem crosses the threshold of irreversible harm. The doctrinal

tool for this is attempt liability. Although for the specific case of ecocide multi-causation, cumulative harm, and scientific uncertainty all complicate the application, these constraints can be addressed through adapting the law to our present context of a rapidly degrading

environment. Belgium’s domestic experience with endangerment offences demonstrates that preventive criminalisation of environmental risk can be legally realised. The issue remains at the international level, because without attaching international criminal liability to ecocide, it

is near impossible to prevent environmental damage if we do not involve the most serious liability we have available for the global legal order. International criminal law therefore needs to be adaptable in extending the atrocities to ecocide and finding a novel way to offer meaningful protection to the environment before ecological destruction harm.

International criminal law must therefore find a novel approach to address atrocities relating to the environment, extending to a preventative or protective reach to ecocide and adapting the doctrinal tools necessary to prevent ecological destruction before it crosses the threshold of irreversibility.

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References

American Law Institute. (1962). Model Penal Code (§ 5.01). American Law Institute.

Gray, M. A. (1996). The international crime of ecocide. California Western International Law Journal, 26(2), 215–271.

Independent Expert Panel for the Legal Definition of Ecocide. (2021, June 22). Legal definition of ecocide. Stop Ecocide Foundation. https://www.stopecocide.earth/legal-definition

Higgins, P., Short, D., & South, N. (2013). Protecting the planet: A proposal for a law of ecocide. Crime, Law and Social Change, 59(3), 251–266. https://doi.org/10.1007/s10611-013-9413-6

Linh, N. H. K., Bao, P. N. G., & Minh, L. L. (2025). Ecocide: From Global Historical Development to Vietnamese Context. Vietnamese Journal of Legal Sciences, 15(3), 65–79. https://doi.org/10.2478/vjls-2025-0018

Stop Ecocide International (2025) Belgium becomes first European country to recognise ecocide as international level crime, Stop Ecocide International. Available at: https://www.stopecocide.earth/2024/belgium-becomes-first-european-country-to-recognise-ecocide-as-international-level-crime (Accessed: 31 May 2026).

Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90.

Cover image

Radic, I. (2021). “Make Ecocide An International Crime Now” sign on the tarmac at a rally against climate change [Photograph]. Flickr. Licensed under Creative Commons Attribution 2.0 Generic.