About the Author: Paola Vitale holds a Master’s Degree from the University of Bologna. She is passionate about international climate and environmental law, and collaborates as a core-team member with Youth for Ecocide Law. She writes for the Stop Ecocide International guest blog.
As climate harms intensify, existing legal systems struggle to keep pace. Many are beginning to ask whether criminal law should step in where civil and regulatory actions have fallen short. With this blog post, I unpack a question that is urgent and emotionally charged: can we protect the climate through criminal law?
When I first approached this question, I realised that the real difficulty lay in understanding why this debate is emerging now. Asking whether climate change can be addressed through criminal law raised a series of further questions, including how criminal law, environmental law, and climate law should each be defined, and whether current proposals, such as the recognition of ecocide under the Rome Statute, could offer an effective legal response.
Why is This Debate Emerging Now?
Environmental and climate laws can fall short in different moments of the compliance process: implementation policies might be inadequate, or enforcement can fail. Implementation is about putting rules into practice: it includes the laws, policies, and actions that actors adopt to fulfil the commitments they have made. Enforcement refers to the measures and mechanisms in place to detect violations and respond to them (for example through fines). As the UNODC-WWF report notes, environmental fines do not work as enforcement and deterrent mechanisms, as they are frequently treated by large corporations as ‘operational costs’, expenses that can be internalised and ultimately passed on to consumers. If even environmental fines cannot change the behaviour of big corporate actors, sanctions can seem like the strongest legal tool available. But even here, caution is needed. Before asking whether criminal law can be used, we need to ask a more fundamental question: what do we mean when we say that a law is “effective”? Different layers of effectiveness can be identified in international law:
- Output: actors agree to comply with the rule.
- Outcome: the rule begins to shape behaviours more broadly (e.g. stronger deterrence)
- Impact: the rule contributes to wider, systemic change, reshaping norms, practices, or structures within the international system over time.
A criminal law might look successful on paper because it creates new offences and harsher penalties. It might even influence behaviour to some extent. But if it does not reduce environmental harm in practice, can it really be deemed effective? To understand this, we need to clarify the interactions between environmental, climate and criminal law.
How do “Environmental”, “Climate” and “International Criminal Law” intersect?
International criminal law can be defined as the system of legal rules created by the International Criminal Court (ICC) through the Rome Statute. The Rome Statute establishes individual criminal responsibility for a small number of exceptionally serious crimes considered to concern the international community as a whole: genocide, crimes against humanity, war crimes, and aggression. Criminal law protects ‘legal goods’ or ‘legal interests’ – those values that are considered so fundamental that they warrant the intervention of public authorities in case of violation, such as life, bodily integrity, property, and state security.
Over time, criminal law has been extended to ensure protection of the environment – understood as the totality of fauna, flora, soil, and waters – but we have not taken into account the protection of the climate as something distinct and separate. The word ‘climate’ in legal and scientific discussion has a very specific meaning. Following the IPCC, climate ‘(…) is usually defined as the average weather (…) over a period of time ranging from months to thousands or millions of years. The classical period for averaging these variables is 30 years, as defined by the World Meteorological Organization (WMO).’ Should climate be protected as part of the broader concept of ‘environment’? Or should it be recognised as an independent legal good?
While it may seem too theoretical, this question is central as the scope of the protected legal interest shapes the perimeter and limits of criminal mechanisms. On the one hand, it can be argued that the atmosphere should be recognised as a distinct protected interest, separate from ‘air’ or the broader ‘environment’, because climate stability is a precondition for life on Earth. On the other hand, creating a separate category risks fragmentation and confusion. In my view, selecting the atmosphere as the protected legal good has the limitation of failing to account for the other components of the climate system (namely the hydrosphere, cryosphere, biosphere, and lithosphere) and, consequently, results in narrower and less comprehensive protection. By contrast, focusing on the protection of a stable concentration of greenhouse gases can help ensure broader protection.
This does not mean that there are no overlaps between environmental and climate harm. Activities like deforestation, illegal logging, water pollution, or wildlife trafficking are regulated as environmental crimes, but they also have climate impacts that are still addressed in a fragmented, sectoral way. Another issue is the distinction between direct and indirect emissions. Direct emissions are physically released (e.g. CO₂ from a coal plant), while indirect emissions relate to the destruction of carbon sinks, such as deforestation. From a criminal law perspective, direct emissions can be linked to permit violations, whereas indirect emissions raise more complex problems of causation, quantification, and attribution. The proposal by the 2021 Independent Expert Panel to introduce ecocide as a new crime under the Rome Statute can be viewed as a laboratory to test these interactions.
The Ecocide Proposal as a Laboratory
The protection of the environment emerges only in limited form in the Rome Statute. Article 8(2)(b)(iv) prohibits widespread, long-term and severe damage to the natural environment in armed conflicts. The provision has never been applied in practice and many have criticised it, as it is extremely difficult to prove that damage was cumulatively widespread, long-term, and severe. In addition, the formulation has often been seen as favouring military operations rather than genuinely protecting the environment, as the environmental damage needs to be ‘clearly excessive’ in relation to the military advantage achieved (see, for example, here, here).
The definition proposed by the Independent Expert Panel for ecocide refers to ‘unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term environmental damage’. Although the protected interest is formulated as ‘environment’, the language is very close to that of the ‘climate system’ used by the IPCC and reflected by the UNFCCC, Kyoto Protocol and Paris Agreement. However, the effectiveness of the criteria ‘widespread’, ‘long-term’ and ‘severe’ in tackling climate harms has been questioned:
- Widespread: “If the globally averaged greenhouse gas concentration in the atmosphere is taken as the starting point for climate protection under criminal law, an increase in this concentration always occurs everywhere to the same extent and at the same time.”
- Long-term: “[…] a CO2 molecule remains in the atmosphere for up to a thousand years. Therefore, the criterion of long-term (substantially likely) damage could at best have a limiting function for other greenhouse gases that are less climate-relevant overall, although here too half-lives of many years can regularly be found.”
- Severe: “In view of the total amount of emissions responsible for climate change, any specific emission behaviour ultimately does not appear to carry any weight.”
These observations are relevant but not necessarily decisive, for four reasons:
- Greenhouse gases do not instantly disperse globally; their effects are initially more localised and depend on the type of gas.
- The crime of ecocide is designed to be comprehensive, addressing environmental harm generally, not only greenhouse gas emissions.
- The criteria of widespread, long-term, and severe must be read together, alongside the requirements of unlawfulness or wantonness. They are cumulative thresholds.
- Finally, and most importantly, it is assumed that widespread, long-term and severe refers to the conduct (the action you take). However, they refer to the damage. Climate damage should not be understood as the emission itself, but the measurable alteration of the climate system.
Attribution science already gives us increasingly robust tools to link specific actors to climate-related harm. A study examining 213 heatwaves over a twenty-year period found that emissions attributable to the largest emitter, the former Soviet Union, made 53 of those heatwaves (approximately 25% of the total) at least 10,000 times more likely to occur.The coal and rail company Elgaugol – which is the smallest Carbon Major by emissions – has made 16 heatwaves more likely by 8%. The sole emissions of those Carbon Majors would have made possible heatwaves that would otherwise have been virtually impossible.
Conclusion
International criminal law, as it currently stands, does not directly protect the climate. The proposal to introduce ecocide into the Statute has opened an important and necessary debate, which also exposes structural difficulties. Defining climate as a protected legal interest is conceptually challenging and applying traditional criminal law criteria becomes complicated when the harm is global and cumulative.
At the same time, it would be ‘too quick’ to conclude that criminal law has no role to play. Criminal law is not only an instrument of deterrence, it is also expressive, it defines boundaries and in moments of profound social transformation, it can contribute to shaping what a community considers intolerable. This debate cannot be reduced to intuition or urgency alone. It requires an honest, academically grounded, and policy-sensitive confrontation with its structural limits, as well as a reflection on what criminal law can – and cannot – realistically achieve.
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