Abstract
In 2021, an Independent Expert Panel for the Legal Definition of Ecocide launched what they described as a ‘practical and effective definition of the crime of ecocide’. The Panel expressed their hope that the ‘proposed definition might serve as the basis of consideration for an amendment to the Rome Statute of the International Criminal Court’. The proposed crime differs from the majority of those currently codified in the Rome Statute in that it adopts an ‘ecocentric’ understanding of harm, meaning damage to the natural environment alone is sufficient as the basis for the crime. In this article, we extend this ecocentric perspective to the International Criminal Court’s (ICC’s) victim participation and reparation regime. Drawing on emerging ecocentric legal movements, including the recognition of territories as victims of armed conflict, international rights of nature movements, environmental restorative justice, and existing juridical practice on repairing environmental harm, we consider the environmentally reparative possibilities of recognising the environment itself as a victim of a crime, with accompanying rights to participation, representation, and reparation. We argue that such recognition may enable more holistic repair in the aftermath of atrocity and could therefore be a valuable development both alongside and in the absence of a new crime of ecocide.
Keywords
Introduction
On 22 June 2021, the Stop Ecocide Foundation’s (2021b) Independent Expert Panel for the Legal Definition of Ecocide launched what they described as a ‘practical and effective definition of the crime of ecocide’ (p. 2), namely ‘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’ (p. 5). The 12 Panel members – criminal, environmental, and climate lawyers from around the world – expressed their hope that the ‘proposed definition might serve as the basis of consideration for an amendment to the Rome Statute of the International Criminal Court’ (Stop Ecocide Foundation, 2021b: 5). Ecocide, as they envisioned it, would form a distinct crime, extending the International Criminal Court’s (ICC) mandate to a category of harm not presently amenable to ICC jurisdiction: environmental damage occasioned during peacetime (Stop Ecocide Foundation, 2021a: 3).
The Panel’s work builds on long-standing critiques of law’s capacity to meaningfully respond to environmental harm, and their ecocide proposal is by no means the first (see Cabanes, 2016; Falk, 1973; Gray, 1996; Higgins, 2010; Mégret, 2013; Mehta and Merz, 2015; Neyret, 2015; Promise Institute for Human Rights (UCLA) Expert Working Group, 2021; Tekayak, 2016). However, it has come at a time when political momentum and interest surrounding ecocide’s criminalisation is growing. Statements of support have come from, for example, the Republic of Vanuatu, the Republic of Maldives, France, Belgium, and the European Parliament. 1 Campaigners are increasingly confident that ecocide’s criminalisation at the ICC is ‘only a matter of time’ (The Guardian, 2020). The political and practical challenges of pursuing international accountability for ecological harms remain substantial (Doran et al., 2021), yet even in the absence of a new crime, there are clear signs that the ICC is concerned to adopt a more environmentally conscious approach to its work. This is evidenced by the Office of the Prosecutor’s (OTP) 2024 ‘public consultation on a new policy initiative to advance accountability for environmental crimes under the Rome Statute’ which ‘aims to ensure that [the OTP] takes a systematic approach to dealing with crimes within the Court’s jurisdiction committed by means of, or that result in, environmental damage’ (ICC OTP, 2024).
The concerted pursuit of greater accountability for environmental crime is also evident in the scholarship. Since its introduction in June 2021, the Stop Ecocide Panel’s proposed definition of ecocide has been subject to extensive debate and analysis. Academic commentators have interrogated the wording (Hellar, 2021; Minkova, 2023) and workability of the definition (Greene, 2021; Gupta, 2021; Hellar, 2021); explored the feasibility and benefits of introducing a new crime (see Alberro and Daniele, 2021); questioned whether such a crime is necessary (see Killean, 2021b) or whether other options and/or forums might be more pragmatic (Minha, 2021; Robinson, 2022); and challenged the use of ‘depoliticised’ international criminal law to address environmental destruction (Cusato and Jones, 2023). These debates feed into a substantial body of literature exploring the possibilities, promises, and pitfalls of a new international crime against the environment (see Gray, 1996; Higgins, 2015; Lay et al., 2015; Legge and Brooman, 2020; Lindgren, 2018; Mégret, 2011; Mwanza, 2018; Teclaff, 1994), as well as the literature on how existing mechanisms can be used to address environmental wrongs (Gillett, 2022; Paulose, 2021).
The literature exploring ecocide in the specific context of the ICC has focused on the framing of the crime and its constituent elements (Higgins, 2015; Mégret, 2011), the challenges surrounding proof (e.g. Ahmed, 2019), the limitations of the ICC’s focus on individual criminal liability (Minha, 2020; Scheffer, 2016), and the Rome Statute’s high amendment threshold (Killean and Short, in press; Robinson, 2022). This paper seeks to make a different kind of contribution. Taking as a starting point the argument raised by ecocide’s proponents that the crime would further the ‘emerging ecocentric worldview in law that affords intrinsic value and rights to nature’ (Wijdekop, 2016), this paper addresses another aspect of what it might mean for the ICC to adopt an ‘ecocentric’ approach to the destruction of the environment. Specifically, we interrogate the possibility of an ICC that recognises the environment as a victim, thereby extending to the environment rights to participation and legal representation in ICC proceedings and reparation.
Thinking ahead to what such a development would entail, the paper makes connections between the campaign to criminalise environmental harm and other legal movements which explore the possibilities of justice for the environment. We draw inspiration from the legal recognition of ‘territories’ as victims of the Colombian conflict, ‘rights of nature’ movements, restorative justice responses to environmental crime, courts’ practices of awarding reparations for environmental harm, and the rich theoretical scholarship that has built up around these developments. While the Stop Ecocide Panel did not explicitly engage with the victim-oriented aspects of the ICC, other ecocide proponents have done so. Their work is duly considered where relevant, in order to explore the links between criminalising ecocide and recognising environmental victimhood. Drawing from wide-ranging practice and scholarship, we argue that far from an outlandish proposition, the expansion of victimhood to encompass the environment finds support and precedent in these various intersecting, ecocentric movements, and could play an important role in ICC practice with or without a new crime of ecocide.
In making explicit these intersections, we have two goals. First, we seek to contribute to the specific discussion around the criminalisation of ecocide, by considering how criminalisation could be accompanied by appropriately ecocentric forms of acknowledgement and repair. Second, we seek to contribute to broader, emerging conversations about what the push to recognise natural entities as rights-bearers means for responses to mass violence (see Huneeus and Rueda Sáiz, 2021; Izquierdo and Viaene, 2018; Ruiz Serna, 2023). Some claim that recognising natural entities as victims would ‘dilute the notion of victim’ or ‘sideline concern for human rights’ (Huneeus and Rueda Sáiz, 2021: 2; see also Dvorsky, 2017). To the contrary, we argue that such a development would enable a more holistic understanding of the interlinked nature of human and other-than-human harm.
To take two present-day examples, Russia’s continuing aggression towards Ukraine has involved both crimes against civilian populations and attacks upon the natural world, as exemplified by the seizure and destruction of the Nova Kakhova dam in 2023 (Pantazopoulos, 2023). Meanwhile, Israel’s indiscriminate bombardment of Gaza has grave human and environmental consequences and follows a longer-term depletion of natural resources across occupied Palestinian territory (Molavi, 2024). In both contexts, the environmental destruction wrought is likely to have implications that outlast the cessation of violent conflict (Pantazopoulos, 2023; Shuker, 2023), and accusations of ecocide have accompanied those of other international crimes (Boehringer, 2023; Yerkmak and Wallström, 2023). Acknowledgement of nature as a victim assists us in understanding how human conflict impacts the natural world, and how ‘environmental harm affects both humans and non-humans’ (White, 2018b: 249). Furthermore, when it comes to reparative justice, such recognition may also lead to more effective modes of repair, in contrast to anthropocentric approaches which risk misunderstanding the scale and extent of the harm (O’Donnell and Talbot-Jones, 2018: 3).
The paper proceeds as follows. In the second part, we distinguish between anthropocentric and ecocentric understandings of environmental harm and victimhood. We demonstrate how anthropocentrism shapes the ICC’s current legal framework and introduce the ecocentric movements highlighted above. We draw on these movements to explore ecocentric possibilities for (1) the recognition of natural entities as victims, (2) participation and representation, and (3) reparation at the ICC. We conclude in the final part by reflecting on the opportunities and challenges of responding to environmental destruction through a more inclusive approach to victimhood.
Anthropocentrism, ecocentrism, and framings of environmental harm
Environmental destruction can be described as ‘victim-full’, encompassing ‘the environment and its components – ecosystems, streams, trees, plants, animals, biodiversity and water’ (Hamilton, 2021: 127; see also White, 2018b: 241) in addition to human beings, communities, and future generations (Preston, 2011). Mass victimisation is characteristic of events considered ecocidal, such as extractivism in the Alberta Tar Sands (Crook and Short, 2014; Tekayak, 2016), Niger Delta region (Lynch et al., 2021), Brazil (Henry et al., 2021), and Venezuela (Burelli, 2020). The extent of harm caused by environmental destruction has led some to refer to it not as ‘ecocide’ (meaning ‘killing our home’) but as ‘omnicide’ (the killing of everything) (Celermajer, 2020; Levene and Conversi, 2014) or ‘mundicide’ (the killing of worlds) (Mitchell, 2014).
Despite the far-reaching impacts and consequences of environmental destruction, the capacity of our existing legal systems and tools to recognise and redress such harms is restricted (Maloney, 2015). To the extent that injury and victimhood have been recognised in the context of environmental harm, they have generally been linked to ‘conventional’ understandings of crime and cast in ‘anthropocentric’ terms (Skinnider, 2011: 2, 17). This means harm to the environment is of consequence only insofar as it interferes with human (aesthetic, cultural, and/or economic) concerns (De Lucia, 2015: 91; Hamilton, 2021: 6; Lin, 2006). Notions of victimhood are predominantly centred on the human individual as an autonomous and independent subject, entitled to rights due to their unique moral nature (Donnelly, 2013). Such a framing excludes other-than-human entities, such as animal species or ecosystems, from having their harms recognised. As a result, environmental harms are often considered ‘victimless’ in the absence of quantifiable damage to a rights-holding entity (Hamilton, 2021: 3–4), and victims of environmental harm are rarely recognised or treated as victims of crime (Flynn and Hall, 2017; Obilor and Oraegbunam, 2020: 19; Varona, 2020).
This approach to victimhood is reflective of the limitations of existing legal architecture and the ideologies that inform them. As critical victimology tells us, ‘being and becoming a victim is never socially neutral’ (White, 2018b: 248, citing Davies et al., 2017). Legal categories of ‘victim’ often serve to reinforce the prevailing logic according to which ‘actions that are just or unjust are so because they are in accord with or violate human-centred visions of justice’ (Lynch et al., 2019: 129). In most legal systems, nature is framed as the passive backdrop against which human activities play out, as a source of resources and wealth creation, or as a threat to be neutralised and protected against (Racz, 2020; Sanden and Bachmann, 2013). Distinctly anthropocentric priorities such as the protection of private property rights (in the case of individuals and corporations), territorial sovereignty (in the case of nation-states) (Bosselmann, 2022: 131), and economic growth (Maloney, 2011: 124) undergird our legal systems. This anthropocentrism finds its roots in ideologies dominant in the Global North and the perceived dichotomy between ‘nature’ and ‘culture’ found in Judeo-Christian cosmologies (Geisinger, 1999), a dichotomy that has been replicated in (international) human rights and criminal laws’ clear distinction between humans and their natural environments (Boyd, 2017).
Anthropocentrism pervades even our foundational international agreements to protect nature; the 1992 Rio Declaration on Environment and Development, for example, identifies human beings as ‘the centre of concerns for sustainable development’ (cited in White, 2018a: 345). Meanwhile, environmental law has itself been critiqued as anaemic, defined, and limited by its reliance on moment-in-time, once-and-for-all impact assessments (Bates, 2023: 155); preoccupation with aesthetic and consumable (rather than living, dynamic) nature; and aversion to concrete, science-based bans, benchmarks, and targets (Stephens, 2018: 129, 136). The label ‘environment’, conventionally understood to mean one’s surrounds, is itself anthropocentric, working to reinforce nature’s designation as ‘other’ – an object rather than a subject (Graham, 2010). While these ‘conventional’ legal approaches are not without regard for the environment, its destruction is often legitimised in the pursuit of other goals (Maloney, 2011: 143; Garver, 2020: 1).
In international criminal law, environmental destruction has remained something of a blind spot (Mégret, 2011: 196). This is evident at the ICC, both in terms of the crimes it investigates and prosecutes and the victims it recognises. In relation to the former, the sole prohibition of environmental destruction is found in Article 8(2)(b)(iv) of the Rome Statute of the International Criminal Court, which criminalises ‘intentionally launching an attack in the knowledge that such attack will cause . . . widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated’. While the Stop Ecocide Foundation’s (2021b) panel proposed definition of ecocide draws in part from Article 8(2)(b)(iv), the existing provision is more restrictive. It applies only to international armed conflicts, and its cumulative use of ‘widespread, long-term and severe damage’ alongside its subjective proportionality test are features that make it prohibitively difficult to prosecute – to date it has never been used (Gillett, 2023: 1472; Killean, 2021a: 328).
Environmental harms can also be prosecuted if they constitute a method or result of the commission of any core crime under the Rome Statute, namely genocide, crimes against humanity, war crimes, and aggression (Anton, 2016; Freeland, 2005; Mistura, 2018). As noted in the ‘Introduction’, the ICC is keen to explore how this approach can be better supported; at the time of writing there is an ongoing public consultation exploring how the ICC can develop ‘best practices for investigating and prosecuting crimes that can be committed by means of or that result in environmental damage’ (ICC OTP, 2024). While there is some limited precedent for using the core crimes in this way, 2 and the public consultation suggests we may see more of this in future, this approach is only available in respect of environmental harms that are connected to attacks perpetrated against people, property and state territory (see Lostal, 2021a; Safferling and Petrossian, 2021; Stahn et al., 2017). Thus, as Gillett (2017: 230) argues, the ICC’s recognition of environmental harms remains ‘subject to anthropocentric values’.
This anthropocentric framing of harm is equally evident in the ICC victims’ rights framework. Victims are defined in the ICC’s Rules of Procedure and Evidence (RPE) as including (1) natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court; and (2) organisations or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art, science or charitable purposes, and to their historic monuments, hospitals, and other places and objects for humanitarian purposes. 3 The ICC’s jurisprudence has clarified that a victim must be a natural person (i.e. a human being) or legal entity that has suffered harm; that the harm can be material, physical, or psychological; and that while the harm can be experienced directly or indirectly, it must be personal. 4 Thus, natural entities are currently excluded from exercising victims’ rights, such as access to legal representation and reparations for harm suffered (Lostal, 2021a).
The push for a new crime of ecocide can be understood as part of a range of broader movements that seek to promote a more ‘ecocentric’ understanding of harm within our legal systems. By ‘ecocentric’, we mean movements that view ‘nonhuman species and entire ecosystems not merely as elements in an anthropocentric utilitarian calculus or as extensions of human moral characteristics, but as entities with moral value in their own right’ (Krakoff, 2003: 462; see also Berry, 1999). An ecocentric perspective ‘recognizes intrinsic value in ecosystems and the biological and physical elements that they comprise, as well as in the ecological processes that spatially and temporally connect them’ (Gray et al., 2018). Such an approach finds its roots in, and continues to be informed by, Indigenous worldviews and decolonial perspectives, particularly, but not exclusively those that have emerged across Latin America (Ordóñez-Vargas et al., 2023).
Translated into the language of law, an ecocentric paradigm provides that the environment not only ‘warrant[s] a duty of care on the part of humans’ but also recognition as a ‘potential rights-holder’ (White, 2018b: 243, 2018a: 344). In the context of a criminal offence such as the proposed crime of ecocide, damage to the environment is, from an ecocentric standpoint, a sufficient basis for the crime, without the need for humans or human organisations to have suffered harm (Greene, 2020). This does not minimise or preclude the recognition of human suffering as a result of environmental destruction; humans remain part of a wider community which ‘relies on the well-being of Earth as a whole’ (White, 2018a: 345). An ecocentric framing of environmental crime merely acknowledges the protection of the natural world as a legitimate ‘end in itself’ (Swart and Sands, 2021).
Proponents of ecocide have argued that its criminalisation could assist in ‘transform[ing] our understanding of nature from property to an equal partner with humans’ (Wijdekop, 2016). However, this is not entirely true. While criminalising ecocide would mean acknowledging nature as the target of harmful acts, the anthropocentric understanding of ‘victimhood’ entrenched in the procedural framework of the ICC would mean that only human beings or specific legal entities would be recognised as victims of such acts. This would have knock-on effects in terms of how the harm is understood, and how accountability and reparation are subsequently framed. We argue that to ‘transform our understanding of nature from property to an equal partner with humans’, a new crime of ecocide, without more, is insufficient, and more substantial changes to the ICC’s currently anthropocentric framework are needed.
There are now a range of ecocentric legal movements emerging around the world that seek to reframe nature as a subject with accompanying procedural and substantive rights capable of being enforced in a court of law. Sometimes referred to as examples of earth jurisprudence (Koons, 2009) or ‘wild law’ (Burdon, 2010), these legal developments share a commitment to better recognising nature’s interests (White, 2018a: 356). Key developments include the recognition of ‘territory-as-victim’ in Colombia’s transitional justice processes (Huneeus and Rueda Sáiz, 2021), the proliferation of movements to recognise the rights of nature – either in general terms, or by recognising specific ecosystems or natural entities as legal persons (see generally Boyd, 2017; O’Donnell, 2020; Tanasescu, 2022) – and the use of environmental restorative justice practices in response to environmental crime (see Forsyth et al., 2022).
Taken together, these movements suggest a growing willingness to treat nature not only as something that can experience harm, but as something that may bear rights and have its interests upheld in the aftermath of that harm. In the following section, we unpack these developments in more detail, exploring how they might inform a more ecocentric approach to victimhood within the ICC and thereby enhance the capacity of the ICC to facilitate meaningful redress for environmental destruction (White, 2023: 5, 10), whether through the criminalisation of ecocide or through the use of existing criminal frameworks. We explore such possibilities in the following subsections, focusing on (1) the recognition of natural entities as victims; (2) participation and representation; and (3) reparation.
Thinking beyond the human at the ICC
Recognising natural entities as victims
As noted above, only ‘natural persons’ and a specific group of organisations and institutions are capable of being recognised as victims before the ICC. Subsequent case law has broadened understandings of victimhood in some ways. For example, the concept of ‘indirect victim’ (i.e. one who suffers due to the harm experienced by a direct victim) has been understood as encompassing non-nuclear conceptualisations of family when culturally relevant.
5
The concept of ‘legal person’ has been understood in relatively broad terms, including: inter alia, nongovernmental, charitable and non-profit organisations, statutory bodies including government departments, public schools, hospitals, private educational institutes (primary and secondary schools or training colleges), companies, telecommunication firms, institutions that benefit members of the community (such as cooperative and building societies, or bodies that deal with micro finance), and other partnerships.
6
However, the notion of ‘personhood’, while not expressly defined in the ICC’s legal documents, remains exclusively human-centric. The Rome Statute’s preamble, for example, refers to ‘children, women and men’ as victims, while the ICC’s early jurisprudence makes clear that ‘the ordinary meaning of the term “natural person” . . . is . . . in English, “a human being”. A natural person is thus any person who is not a legal person. 7
Various advocates for ecocide have challenged this framing of victimhood. For Mark Gray (1996), former Head of the Environmental Law Unit for the Australian Department of Foreign Affairs and Trade, ‘the natural world’s beauty, complexity and fragility suggest that it and its components in their own right have interests worthy of protection’ (p. 225). He suggests that as the concept of ecocide gains recognition, ‘acknowledgment of non-human rights, such as that of other species to exist, will broaden standing’ (Gray, 1996: 270). British barrister Polly Higgins also envisioned a framing of victimhood that extended beyond natural and legal persons. In 2011, she organised a Mock Trial to test the workability of her own draft ecocide law, incorporating a restorative justice conference in which nonhuman casualties – birds and the Earth itself – were recognised as victims in their own right (see Rivers, 2012). Commenting on the process, solicitor and mediator Liz Rivers (2012) asserted that the experiment was proof of concept, demonstrating that ‘it is possible to give voice to diverse and other-than-human elements of the system . . . in a meaningful way’. We return to the concepts of representation and voice below. But first, we offer some snapshots of real-world examples illustrating an ecocentric evolution of legal victimhood.
One example can be found in Colombia, a state that has experienced protracted armed conflict precipitated by disputes over natural resources, land grabbing, and displacement. Colombia’s transitional justice measures have recast who and what is considered a victim of conflict (Huneeus and Rueda Sáiz, 2021). Since 2019, the Jurisdicción Especial para la Paz (JEP), a specialist court established through Colombia’s 2016 peace accord, has passed five resolutions recognising the Katsa Su, the Cxhab Wala Kile, and the Esperera Euja (territories of the Awá, Nasa, and Sia Indigenous people), as well as the territories of the Black communities of Tumaco, Ricaurte, and Barbacoas, as victims of the almost six decade-long conflict (Huneeus and Rueda Sáiz, 2021; Ordóñez-Vargas et al., 2023). Reflecting Indigenous worldviews, which denote ‘no separation between the material, cultural and spiritual spheres’ (Ariza-Buitrago and Gómez-Betancus, 2023: 87), ‘territories’ are understood as encompassing human beings, natural entities such as rivers, the relationships between humans and between humans and nature, and ‘mother nature’ as a ‘living being’ in her own right (Ariza-Buitrago and Gómez-Betancus, 2023; Huneeus and Rueda Sáiz, 2021: 221). Notably for our purposes, the territories recognised by JEP are considered ‘legal subjects with rights to justice, truth and reparation, and the right to participate in each stage of the legal process’ (Huneeus and Rueda Sáiz, 2021: 210, our emphasis). While challenges in the practical implementation of these developments remain, they offer a precedent for ‘expanding the notion of territory so that it is a subject . . . of law’ (Huneeus and Rueda Sáiz, 2021: 219).
The JEP’s resolutions can be understood as a ‘ripple effect’ of the Colombian Constitutional Court’s 2016 decision recognising the Atrato River as holding ‘rights that imply its protection, conservation, maintenance and . . . restoration’ (Ariza-Buitrago and Gómez-Betancus, 2023: 86, citing the Atrato River case). 8 Since then, Colombian judges have recognised rivers, national parks, wetlands, and the Colombian Amazon rainforest as rights-holders (Ariza-Buitrago and Gómez-Betancus, 2023: 86). The Colombian developments can in turn be situated within emerging law and jurisprudence recognising the legal subjectivity of natural entities (Huneeus and Rueda Sáiz, 2021: 229; Lyons, 2023: 65–66). Although based in ancient Indigenous ontologies and governance structures (O’Donnell et al., 2020), the move to grant nature legal rights specifically can be traced to scholarship and practice which emerged on the American continent in the 1970s and 1980s. Notable early works include American law professor Christopher Stone’s (1972) article ‘Should Trees Have Standing?’ and Godofredo Stutzin’s (1984) arguments in favour of rights of nature in the context of environmental advocacy in Chile. Since the turn of the century, the idea that natural entities such as forests, bodies of water, and flora and fauna should enjoy rights capable of being vindicated in a court of law has inspired constitutional amendments, ordinary legislation, judicial decisions, by-laws, local council motions and community initiatives, as well as interdisciplinary scholarship across multiple jurisdictions on every continent (Houck, 2017; Kauffman, 2020: 5; Putzer et al., 2022). 9
In terms of the formulation and implementation of rights of nature, differing but often overlapping approaches are discernible. These include the conferral of enumerated rights (e.g., the right to exist, regenerate, and flourish (Wood, 2023: 6–7)), legal standing, personhood, citizen status (see Greenfield, 2020), and/or the appointment of legal guardians for nature (Bleby, 2020: 41; Cullinan, 2021: 237; Kauffman, 2020: 1–2; Putzer et al., 2022: 89–90; Wessels and Wijdekop, 2022: 81–82). It is common, for instance, for rights of nature instruments to authorise specified persons (or citizens generally) to initiate legal proceedings on nature’s behalf (Bleby, 2020: 53–54). We discuss standing further in the section below, in connection with models of representation and participation for natural entities.
In several jurisdictions, particular natural entities have been recognised as legal persons endowed with associated capacities and rights (Clark et al., 2019). In Aotearoa, New Zealand, the Te Urewera Act 2014 extends legal personality to the forest, lakes, and rivers that make up Te Urewera (formerly a national park) and appoints trustees to protect the area (Rodgers, 2017). Similarly, the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 confers full legal personality on the Whanganui River system, with all the rights, powers, duties, and liabilities of a legal person (see O’Donnell and Talbot-Jones, 2018: 7; Rodgers, 2017). India has also extended legal personhood to ecosystems, with the High Court of Uttarakhand recognising the Ganges and Yamuna as ‘juristic/legal persons/living entities having the status of a legal person’, 10 as well as ‘all other natural objects in the State of Uttarakhand, including the Gangotri and Yamunotri glaciers that provide headwaters for the Ganges and Yamuna rivers’ (O’Donnell, 2018: 136). In February 2019, the High Court Division of the Supreme Court of Bangladesh recognised the Turag River as both a living entity and a legal person; it expanded this decision in July 2019, proclaiming that ‘all other rivers flowing in and through the territory of this country will also enjoy the same status’ (Page and Pelizzon, 2022: 6).
The specific recognition of natural entities as victims can also be found within environmental restorative justice practice. Environmental restorative justice is an evolving body of ‘critical knowledge and practice’ interested in ‘how to conceive of violence and harms against ecosystems and non-human beings’ (Varona, 2021: 42), how to use restorative justice principles to respond to those harms (Biffi and Pali, 2019), and how to ‘infuse’ restorative justice principles and practices with an environmental sensibility (Forsyth et al., 2021). Drawn initially from Indigenous conceptions of justice, this growing field envisages the resolution of environmental conflicts and violations via constructive interaction between offender, victim, and community (Forsyth et al., 2022: 6). The framing of ‘victim’ in this context has often been understood as encompassing natural entities. As environmental justice proponent and Chief Judge of the New South Wales Land and Environment Court Brian Preston (2011) explains, the ‘biosphere and nonhuman biota have intrinsic value independent of their utilitarian or instrumental value for humans’ and therefore ought to be entitled to participate as victims in restorative justice processes (p. 143).
Evidence of such practice can be found in responses to environmental offending across multiple jurisdictions, even in the absence of formal recognition of legal personhood. In New Zealand, for example (see Hamilton, 2008, 2021; Wessels and Wijdekop, 2022), the Waikato River was recognised as a victim in a restorative conference following its illegal pollution, and the Walnut Stream in Canterbury was classed as a victim alongside the local community and Māori population in a conference following the accidental discharge of contaminants into its waterways. 11 Subsequent New Zealand case law has also seen trees cut down without the appropriate consent treated as victims in their own right for the purposes of restorative conferencing. 12 Elsewhere, Canadian case law has permitted community members to collectively represent the interests of a river subjected to dewatering during the construction of a bridge. 13
In highlighting these examples, we seek to demonstrate first, that the concept of ‘personhood’ is by no means fixed in its meaning or implications; it is an elastic concept the content of which is dependent on the legal frameworks, judicial interpretations, and attitudes of the day (see also Jha and Ghosh, 2018; Miller, 2019). As Stone observed in 1972, personhood has previously been expanded to include children, women, the mentally ill, and other marginalised groups (p. 451), and as the above examples show, notions of legal personhood are now evolving to capture a range of natural entities across a range of jurisdictions (Kauffman, 2020; Putzer et al., 2022). Second, these examples show that natural entities can have, and are having, their victimisation recognised in retributive, reparative, and restorative justice mechanisms. Taken together, these observations suggest that the ICC’s expansion of victimhood to encompass natural entities is legally feasible and would make an important contribution to responses to atrocity (including a new crime of ecocide if introduced) as well as emerging ecocentric practice around the world. We argue that such an approach is necessary to ensure legal responses to ecological harms are both effective and meaningful.
Currently, the ICC’s Rules of Procedure and Evidence leave little room for such expansion. Neither the category of ‘natural persons’ nor ‘organizations or institutions’ encompass nature and its components. Marina Lostal has imaginatively argued that the latter category could encompass nature in situations where an organisation ‘whose purpose is to preserve or protect the environment’ and whose ‘property’ encompasses natural resources is recognised as a victim (Lostal, 2024). However, as she notes, a potential limitation arises in that the ICC requires such property to be ‘dedicated to religion, education, art or science or charitable purposes’ or to take the form of ‘historic monuments, hospitals or other places and objects for humanitarian purposes’. Furthermore, in such cases the victim would be the organisation or institution rather than nature in its own right. While a potentially pragmatic step towards enabling reparations for environmental harm, such a framing reasserts anthropocentric understandings of harm, understanding nature as valuable only insofar as it doubles as human property (ICC RPE, 85(b)).
We suggest that an ‘ecocentric’ understanding of victimhood, which recognises the natural entity as a victim in its own right rather than through the lens of human interest, would necessitate a new category of victim. In contrast to the examples described in this section, many of which are specific to their cultural and geopolitical contexts, such a category would need to be sufficiently flexible to recognise the plethora of natural entities and biophysical systems that might suffer harm in a case before the ICC (see Wood, 2023). The Stop Ecocide Panel’s definition of the ‘environment’, meaning the earth, its biosphere, cryosphere, lithosphere, hydrosphere, and atmosphere, as well as outer space, offers one inclusive approach (Article 8(2)(e) ter: Stop Ecocide Foundation, 2021b). This, coupled with a criterion similar to that included in the ICC’s RPEs – that the environment has sustained direct harm as a result of the commission of a crime within the ICC’s jurisdiction (Rule 85) – could offer a potential way forward.
Important issues surrounding participation and representation flow from such a proposal. As White notes in his account of ecocentric criminal justice: ‘if the non-human is to be acknowledged in law as a “victim”, then the non-human environmental entity must be able to convey, in some way, the nature of its victimization’ (White, 2018a: 345). The question naturally arises: if victimhood were extended to nature, ‘who may speak for it and . . . carry its case in court?’ (Houck, 2017: 29). The following section considers this question.
Participation and representation
The ICC’s Rules of Procedure and Evidence provide that the ICC ‘shall take into account the needs of all victims and witnesses . . . in particular, children, elderly persons, persons with disabilities and victims of sexual or gender violence’ (RPE, Rule 86). This applies to both natural and legal persons. 14 To present their views and concerns before the Court, victims have the option of making a written application to the Court’s Registrar, who then transmits the application to the relevant Chamber. That Chamber then specifies the proceedings and manner in which participation is considered appropriate. The RPEs also allow for victims to choose legal representatives to attend and participate in the Court’s proceedings on their behalf (RPE, Rule 90(1)). This can include participation in hearings, making opening and closing statements (RPE, Rule 89), questioning witnesses, tendering evidence as to the guilt or innocence of the accused, 15 and making written observations and submissions (RPE, Rule 91). Groups of victims that share a certain identity, set of characteristics, geographical location, or experience of victimisation, or that simply self-identify as a collective, may be asked to choose a common legal representative or may have one chosen for them by the Court (RPE, Rule 90). In practice, the realities of mass victimisation and the ICC’s significant resource and logistical constraints have meant increased reliance on court-appointed common legal representatives for victim applicants (Killean and Moffett, 2017).
The threshold requirement for participating in ICC proceedings is meeting the definition of ‘victim’ contained in the ICC’s RPEs. Rule 85’s inclusion of organisations and institutions demonstrates that the ICC’s framework contemplates the representation and participation of certain other-than-human victims. This is not unusual. As Houck notes, lawyers routinely represent ships, estates, and corporations, all constructs that ‘we have simply declared to be persons’ (Houck, 2017: 44). Examples of the use of legal spokespersons, guardians, and proxies can be found in various legal settings and scenarios, including crimes against legal persons (Motupalli, 2018: 345), but also in cases where the primary victim is deceased, and in situations where a litigation guardian is needed to represent a child or mentally disabled person in court (Cruz Correia, 2019: 95). The ICC’s RPEs make provision for this, stipulating that an application may be made by ‘a person acting with the consent of the victim, or a person acting on behalf of a victim, in the case of a victim who is a child or, when necessary, a victim who is disabled’ (RPE, Rule 89(3)).
Proponents of an ecocide law have envisioned the adjustment of such provisions to accommodate the environment-as-victim. Gray, for example, argued that if natural entities or future generations were recognised as having their rights violated by ecocide, they could be represented by a ‘next friend’, which he identified as including a state, an institution mandated to make such claims, or a conservation organisation (Gray, 1996: 228). In Higgins’ 2011 Mock Trial, some 4,000 birds said to have been injured or killed due to the fictional oil spill and the Earth as a whole were each represented by a spokesperson at the restorative justice conference (Rawlinson, 2011; Rivers, 2012). This suggests two possible approaches to representation for the environment-as-victim before the ICC: representation for particular classes, orders, or other taxonomic rank of living things (e.g. avian populations), and/or the appointment of one or more representatives to speak on behalf of an impacted ecosystem or geo-region as a whole. As discussed below, delineating environmental victim groups and assigning appropriate legal representatives to those groups, while unlikely to be a straightforward exercise, is both necessary and achievable.
Stone’s famous argument in favour of natural objects having legal rights to seek compensation and reparation for damage contemplated that such natural objects would vocalise their claims through appointed spokespersons (Stone, 1972, 1985, 1987). As Bleby argues, the availability of a human ‘mouthpiece’ or legal proxy for nature is necessary to ensure that rights of nature are actionable as opposed to existing merely on paper (Bleby, 2020: 53–4). Some have questioned how any human can presume to know the interests or feelings of a voiceless object (Sagoff, 1974: 221–222; Rogers and Maloney, 2014: 174), noting that some (natural) phenomena are ‘beyond [human] knowability’ (Lyons, 2023). Houck, however, argues that certain grounding principles can be found, as ‘all living things struggle against dying and to reproduce their own . . . which if nothing else demonstrates a primordial urge to exist and continue existing’ along with ‘an urge to restore itself when it can’ (Houck, 2017: 40).
In practice, in jurisdictions where a natural entity has been granted legal personhood, such as New Zealand, India, and Colombia, guardian councils or bodies have been appointed by legislation or judicial pronouncement to represent that natural entity (Clark et al., 2019). Such bodies often include members of Indigenous communities connected to the relevant entity or ecosystem, as well as government representatives. In other cases, open standing to sue on nature’s behalf has been introduced. The Tamaqua Borough Sewage Sludge Ordinance, for instance, confers on local residents and council members standing to sue on behalf of ecosystems in the municipality. 16 The Ecuadorian Constitution likewise establishes open standing for citizens to bring proceedings on behalf of nature in Ecuadorian courts for breaches of its constitutionally entrenched rights. This standing has been used by communities. For example, in the Intag Cloud Forest litigation, local communities availed of the open standing provisions to bring a claim in defence of nature’s constitutionally entrenched rights in the Tropical Andes, whereby they successfully blocked the Llurimagua copper mining project in the Intag Valley, a global biodiversity hotspot (Kimbrough, 2023).
Further examples can be found in environmental restorative justice practice (Preston, 2011; White, 2018a). Restorative justice circles convened in response to environmental offending in New Zealand and Canada have previously employed human guardians to represent natural entities who are considered victims of crime (Hamilton, 2021; Wessels and Wijdekop, 2022). For example, vegetation that had been illegally cleared 17 and waterways that had been polluted 18 were represented by local councils, 19 authorities, 20 Indigenous groups, 21 or members of the community. 22 In many instances, co-victims of the relevant environmental crime, such as the land’s original custodians, played a dual role, participating as victims and as representatives of the harmed environment. In the New Zealand Interflow case, for instance, the Onuku Runanga (the local Māori iwi) reflected on the relevant pollution incident in terms of the damage done to Māori cultural heritage as well as to the contaminated stream, speaking on behalf of the latter and its inhabitants (including eels and multiple fish species) in the conference proceedings (Hamilton, 2021: 139–140, 223–224; Wessels and Wijdekop, 2022: 85–86).
We argue that these models and practices could inform the participation of the environment-as-victim at the ICC. Doing so would require modifications or additions to the Court’s RPEs. Specific reference to participating on behalf of the environment-as-victim might be made in Rule 89(3), which presently allows for an application for victim participation to be made by a non-victim acting on behalf or with the consent of a victim who lacks capacity due to youth or disability. There is precedent for adapting existing mechanisms to incorporate natural entities in this way. For example, in its rulings granting legal rights to the Ganges and Yamuna, the High Court of Uttarakhand framed the rivers as legal minors, thereby acknowledging their status as legal persons as well as their inability to speak for themselves (O’Donnell and Talbot-Jones, 2017). The Uttarakhand High Court’s reasoning makes clear the analogy to be drawn between categories of persons that lack capacity and the environment: both lack a ‘voice’ for the purposes of instigating and participating in legal proceedings, and there is a need for the law to step in and fill this gap through provision for the appointment of litigation guardians. Another example, in a different format, can be found in the Global Initiative Against Transnational Organized Crime’s project on developing victim impact statements (VIS) for animal species. This project involved the preparation of science-based written statements and expert witness testimony in wildlife trafficking cases (MacBeath and Whitfort, 2024), and such VIS have been successfully used in legal proceedings in Hong Kong, South Africa, and Zambia. Across the three jurisdictions, the content of the VIS varied, incorporating both ecocentric and anthropocentric descriptions of harm and detailing the harm experienced by the subject species, but also the knock-on effects on other species and human communities.
Of course, as White notes, ‘who speaks for whom is . . . controversial, especially when it comes to natural objects such as trees, rivers and specific bio-spheres’ (White, 2014: 44). Determining who should speak for the environment-as-victim posed a challenge in several of the examples of environmental restorative justice practice referred to above (O’Donnell and Talbot-Jones, 2018). An added complexity is the array of harms that may be experienced by the natural entity, and/or across multiple of the Earth’s ‘spheres’, creating the need for a representative who can ‘speak with authenticity’ (Kershen, 2019) and accurately convey those harms and associated needs (Wuijts et al., 2019).
Another challenge may arise if several potential representatives are identified in a particular case (Hamilton, 2021: 222), requiring ‘consensus around the legitimacy of different actors to speak for the victimised environment’ (Kershen, 2019). Possible representatives may include Indigenous peoples with spiritual and cultural ties to the natural entity or ecosystem (Lyons, 2023: 68), relevant organisations that have worked in the relevant environment prior to, during, or after the ecocidal event, or ecologists or other scientific professionals familiar with or otherwise linked to the impacted environment (Forsyth et al., 2021: 33–34). In such a situation, the choice of representative/s could be incredibly important. As Kershen (2019) highlights, a range of inter-species communicators might articulate on behalf of the environment-as-victim through ‘electronic, non-verbal or intuitive means’ and different interlocutors might tell varying stories about the nature of the harm (p. 50; see also Hamilton, 2021: 227–228).
Given these potential tensions around choosing a representative, it is important to note entry-points for additional voices to be heard. For example, relevant organisations and scientific professionals may also occupy the role of an expert witness, called upon to quantify and describe the damage from an external (e.g. scientific or ‘facts and figures’) rather than internal (experiential or ‘storytelling’) point of view (Hamilton, 2021: 226). The ICC’s procedures allow for this – experts have previously been called to provide the Court with insights into the harms of, for instance, sexual- and gender-based violence and the destruction of cultural heritage (Gilmore, 2021; Lostal, 2021b). This input will be crucial, as understanding environmental victimhood will require an understanding of the ‘interdependencies between elements, feedback effects and tipping points’ (MacBeath and Whitfort, 2024: 6). Importantly, victims’ legal representatives can, as well as question expert witnesses called by the Parties, call witnesses themselves (Gillett, 2022: 214). Expert witnesses were used in Higgins’ Ecocide Mock Trial, where a consultant ornithologist and oceanographer provided accounts of the oil spill’s impact on avian and marine life, respectively (Blair, 2011). Ultimately, as with human victims of international crimes, there may be a need for appropriately qualified persons to both ‘speak on behalf of’ and to ‘speak about’ natural entities, so as to present the Court with the fullest possible picture of the harm caused.
Grappling with who speaks for victim communities, determining the proper role for experts, and navigating the panoply of views within victim collectives are not new challenges for the ICC (Killean and Moffett, 2017). The ICC’s victim participation framework is designed to balance the objective of justice for victims (including procedural justice) with the goals of efficiency, workability, and fairness (War Crimes Research Office (WCRO), 2007). To this end, it adopts a relatively wide (if anthropocentric) definition of victim while giving the Court broad discretion to determine when and how a victim or victim group may exercise their right to participation. This includes the Court’s discretion under Article 68(3) of the ICC’s Rome Statute to limit the modalities and scope of victim participation – for example, victims’ representatives may be limited to submitting written observations only – and the preference in practice for collective rather than individual representation (WCRO, 2007: 28–31; see also Funk, 2015; Killean and Moffett, 2017). In cases of collective representation, the ICC has determined that representatives must fulfil certain criteria; that is, they should speak the same language as the victim group; have some temporal, spatial, experiential, or other connection to that group; and respect the group’s local traditions (Killean and Moffett, 2017). 23 It may be that similar criteria could dictate the selection of representatives for the environment-as-victim, requiring some minimum degree of affinity (qualifications, lived experience, expertise and/or other connection) with the victimised natural entity.
Crucially, enabling suitable participation and representation of the environment-as-victim in ICC proceedings could assist the Court in determining the true scope and extent of environmental damage, loss, and injury so as to award appropriate types and modalities of reparations (RPE, Rule 97). This notion of repair is explored further in the following section.
Reparations for nature
An important component of the ICC’s victim participation model is the ability of victims to seek reparations for ‘rights that have been violated, . . . harms suffered, and . . . indignities endured’ as a result of mass violence. 24 Reparations are awarded for the benefit of victims following the conviction of an accused and can be awarded to individuals, victim collectives, and/or to an intergovernmental, international, or national organisation (Rome Statute, Art. 75(2); RPE, Rule 98). Reparations can vary in form and scope, and may involve restitution measures, compensation, economic and/or psychosocial rehabilitation, guarantees of non-recurrence, and symbolic measures (Rome Statute, Art 75; RPE, Rule 94). Reparations orders can encompass reparations for individuals, groups, and organisations, as demonstrated, for example, in the ICC’s Al Mahdi case, which concerned the destruction of cultural heritage. 25 In addition to implementing reparation awards, the ICC’s Trust Fund for Victims (an independent, non-judicial institution) may also provide more general assistance to victims who have experienced harm as a result of a crime which is within the Court’s jurisdiction and linked to a situation under investigation. This can be done prior to the conviction of an accused person and has previously taken the form of physical and/or psychological rehabilitation and material support (Dutton and Ní Aoláin, 2019; Trust Fund for Victims, 2014).
Reparations for environmental victims are an often-overlooked potential benefit of pursuing ecocide at the ICC (Killean, 2023). Contemplating victimhood in the context of ecocide, Varona asks whether and how we might translate ‘elements of justice for non-humans’ such as ‘truth, acknowledgement/recognition, [and] accountability’ (Varona, 2020: 66). Recognising that some aspects of justice are profoundly anthropocentric (Celermajer et al., 2021), we argue that the prospect of awarding reparations represents one of the greatest advantages of using the ICC as a vehicle for responding to crimes against the environment. While humans may desire truth and/or accountability (Cuppini, 2022: 77–78), for a damaged ecosystem it is likely to be ‘repairing the harm’ and preventing recurrence that matters the most (Drumbl, 2005; Houck, 2017: 21). That said, for communities with particular cultural and/or spiritual connections with an ecosystem, these understandings of justice are likely to be deeply entwined. As Ruiz Serna (2023) explores, these harms and reparative needs may be symbiotic: reforestation is on one hand an important measure to re-establish biodiversity, but could equally be a necessary step in re-establishing communities’ relationships with spiritual beings that may have been lost as a result of environmental destruction. Reparation may also have important impacts on the perpetrator. As JoJo Mehta (Higgins’ co-founder of Stop Ecocide) has argued, ‘it’s hard to envisage a more direct way of bringing our inescapable connection to the land into consciousness for those who have ignored its living value and integrity’ (Mehta, 2019: 28).
Recognising natural entities as victims at the ICC could play an important role in repairing environmental destruction, reframing natural entities as subjects entitled to reparation in their own right. This reframing creates space to reconceptualise harm and reparation beyond prevailing anthropocentric understandings (Huneeus and Rueda Sáiz, 2021: 2). Furthermore, enabling the environment-as-victim to pursue reparations may engender more complete and efficient forms of repair than existing anthropocentric approaches allow. As O’Donnell and Talbot-Jones (2018) observe, if injuries to the environment per se, as opposed to those affecting only ‘the human users of, or participants in, that environment’, are made legally cognisable, then ‘a larger proportion of the total injuries may be accounted for’ (p. 2).
In the specific context of ecocide, reparation undeniably poses distinct challenges. For one, complete restitution in the aftermath may be impossible. 26 The nature of the offending may have ‘tipped an element of the environment into a new system state, like cumulative impacts of pollution on a river or the atmosphere’ (Hamilton, 2021: 162). This risk may be compounded by the time it takes to first investigate and prosecute harms, and then design reparation projects. During this time, there is also ‘a loss of ecosystem services and functioning as well as the loss of individual biota which will take time to replace’ (Preston, 2011: 18). In cases where restoring the affected ecosystem to its prior condition is impossible, Preston (2011: 18) has suggested that ‘environmental harm may need to be compensated by the offender carrying out, or paying for others to carry out, a project for the restoration or enhancement of the environment elsewhere, such as to provide compensatory habitat’. Because nature is non-fungible, such equivalency-based measures (to the extent that they reproduce the logic of interchangeability and tradability that underpins spurious carbon and biodiversity offset schemes) should be reserved for situations where exact or even approximate restitution in respect of the relevant ecosystem is altogether impracticable or impossible (Griggs, 2014: 213–214, 226–227).
Reparations are also likely to be highly technical, having to do with ‘the chemical balance and the right conditions for life to regenerate’ (Wijdekop, 2019). Reckoning with large-scale, complex harms is hardly new terrain for the ICC; the Court has previously met these challenges by calling on or contracting experts to report on the nature, impact, and financial cost of the destruction and determining the relevant quantum and heads of reparations accordingly (RPE, Rule 97(2); Gillett, 2017: 220). Still, environmentally reparative projects may require research and experimentation of a type not previously considered by the Court. In this context, it is worth noting both that the Trust Fund has previously proclaimed an intention to progressively integrate an environmental dimension into its interventions (Trust Fund for Victims, 2014), and that the ICC’s practice of reparations involves collaboration between the Trust Fund and relevant implementing partners on the ground. Thus, rather than requiring substantial investment in new forms of expertise within the Trust Fund itself, the implementation of ecocentric reparations is likely to be delegated to appropriate organisations (Killean, 2021a).
Guidance can also be found in the established jurisprudence and practice of specialist environmental courts and tribunals (White, 2014). The New Zealand Environment Court and the New South Wales Land and Environmental Court (NSW LEC) are two courts known for centring restorative and reparative, rather than merely retributive, modes of justice (White, 2017). In the NSW LEC, the world’s first specialist environmental court, sentences for environmental offending frequently incorporate some element of repair (White, 2017: 124). The use of environmental service orders (ESOs) designed to return victims to the position they were in prior to commission of the offence, and/or to prevent recurrence of the offence is a key example of this (Hamilton, 2021: 39). In various cases, offenders have been required to pay the amount of any fine imposed into an environmental trust or fund such as the National Parks and Wildlife Fund; 27 comply with an order to conduct a species mapping project in the affected area; 28 or carry out works for the mitigation and prevention of future soil erosion, in circumstances where the erosion that in fact occurred was a direct consequence of the unlawful activities of the defendant. 29
While comparatively novel in the context of responses to environmental offending, we argue that guarantees of non-repetition (GNRs) could be a particularly useful modality of reparation. GNRs such as training for security forces, promoting mechanisms for conflict resolution, and reforming laws that enabled the violations to take place, are designed to address the structural causes of violations to prevent future occurrences. 30 Due to the structural changes involved, GNRs are more commonly ordered/awarded against states rather than individual perpetrators. For example, the Inter-American Court of Human Rights has awarded guarantees of non-recurrence in cases involving desecration of victim groups’ ancestral lands (see Capone, 2018 for a discussion on the applicability of IACtHR practice to the ICC). The ICC also has some existing practice that might be adapted to suit environmental destruction. Its reparations decision in the case of Al Mahdi included specific reference to ‘effective measures to guarantee non-repetition’ 31 of the destruction of cultural heritage in Mali. Any such future measures would require consultation with governmental authorities and would need to be tailored to the particular environmental, social, cultural, and/or political context. 32
Future guidance concerning reparations awards for natural entities is also likely to become available as the Colombian territories cases progress. Tailored redress and repair for territories and ecosystems ‘moral[ly] and material[ly]’ tainted by the conflict in Colombia has been a salient consideration in Colombia’s transitional justice system (Ariza-Buitrago and Gómez-Betancus, 2023: 79–81, 87). While neither the JEP resolutions nor the 2016 Peace Accord prescribes modes of repair for territories or nature generally, the concept of territory-as-victim is likely to influence the JEP tribunal’s approach to fashioning reparative measures (Ariza-Buitrago and Gómez-Betancus, 2023: 79). As Huneeus and Rueda Sáiz (2021) observe: [D]efendants who cooperate with the JEP are eligible to benefit from ‘sanciones propias’, or alternative sanctions. In lieu of carceral punishment, they are able to propose undertaking projects, individually or collectively. This is one of the main forms that JEP reparations will take. These include . . . works that address material harm suffered by the territory, such as reforestation and landmine removal in indigenous and Black communities’ territories. (p. 224, emphasis added)
It is important to note that nothing discussed here precludes the involvement of, and the award of reparations to, human victims of ecocide. Human and other-than-human beings do not exist in a zero-sum relationship. The reality of Earth’s interconnected spheres means that any act of ecocide will make victims of humans as well (Killean and Short, in press). Thus, as Houck (2017) notes, ‘in many instances . . . anthropomorphic and ecocentric interests marry’ (p. 33). The point we wish to make is that by recognising the environment itself as a victim of ecocide, the ICC would have the opportunity to engage with and respond to the specific harms experienced by the natural world itself, as well as those experienced by the natural or legal persons connected to the damaged environment. Reimagining the environment as a subject of law provides a base from which to build ambitious reparative measures that holistically address the reality of ecocide (and other atrocity crimes) in their ‘victim-full’ dimensions.
This interconnected approach may beget its own challenges and tensions (Varona, 2020: 668). As White notes, ‘[t]here are, invariably, conflicts involving the different interests and rights of humans, specific ecosystems and animal and plant species’ (White, 2018b: 249). Environmental restorative justice scholar Mark Hamilton provides the example of a polluted river, noting the potential clash, for example, between the interests of the aquatic species that were killed, the humans who relied on those species for income, and Indigenous peoples with spiritual ties to the river. In his view, however, conflict is not necessarily insurmountable, or even a bad thing, but rather something to be engaged with in a productive way (Hamilton, 2021: 218). As Huneeus and Rueda Sáiz (2021) argue, ‘the focus must be on the restoration of a balanced relationship, not in the sense of excluding humans, nor in the sense of using land only as a resource’ (p. 20). While more restorative justice practices, such as those explored in Higgins’ Mock Trial, would require substantial additional changes to the ICC’s existing practice, recognising the environment-as-victim would offer one way to grapple with the role of reparation in restoring that balance.
Conclusion
This article has explored how the ICC might expand its conception of victims to encompass natural entities, thereby extending rights to participation, representation, and reparation to those entities. Drawing from proposals for a new crime of ecocide, as well as developments in the recognition of territories as victims in Colombia, rights of nature and environmental restorative justice practices around the world, and the practice of select specialist domestic and regional courts, we have argued that far from an outlandish proposition, the expansion of victimhood to encompass the environment-as-victim is a productive next step in the evolution of international criminal law, which finds support and precedent in various intersecting ecocentric movements.
We have explored the implications of recognising the environment as a victim of ecocide and argued that the recognition of the environment-as-victim would enable appropriate forms of repair in the aftermath of ecocide. However, we wish to reiterate that the criminalisation of ecocide is not a prerequisite for the expansion of victimhood. A new category of victim could see the environment-as-victim recognised as such in the context of the ICC’s current mandate of war crimes, crimes against humanity, genocide, and aggression. As flagged in our ‘Introduction’, atrocities perpetrated against human beings are often accompanied by or involve environmental destruction, and the recognition of the environment as a victim with associated rights offers one way to develop more holistic understandings of harm and repair. There is therefore potential value in a more inclusive understanding of victimhood even in the absence of a new crime of ecocide.
It is important to acknowledge that the proposals in this article would undoubtedly face significant challenges, both in introduction and implementation. As noted in the second part of this article, the ICC’s framework is largely anthropocentric and would require substantive changes before the Court could recognise and respond to the justice needs of the environment-as-victim. Furthermore, the ICC is hampered by numerous resource constraints and operational challenges that impede implementation of its existing mandate, without having to engage with new forms of harm and victimhood. We certainly do not wish to ignore or downplay these obstacles and limitations.
However, we want to conclude by emphasising not only the reparative benefits of such an approach, but the potentially significant expressive value of our proposals. By bringing nature into systems of law, and recognising its inherent worth, the expansion of victimhood to encompass natural entities is itself a reparatory act with discursive and normative weight. As Motupalli (2018) argues: looking at the environment as one of the victims not only helps address the needs of the environment, but also helps cultivate an alternative worldview in which the environment is not seen solely as a resource to be managed or used, but as an important member of our earth community. (p. 360)
Such a paradigm shift is due (if not overdue) at a time of escalating climate and biodiversity crises. As Preston (2011) has argued, ‘[b]y giving the environment a voice and recognising and healing it as a victim, humanity’s relationship with the environment is also transformed’ (p. 14). The ICC is one potential forum through which this transformation can be pursued.