Sentencing ecocide: history, doctrine, theory

Chernobyl. Bhopal. Exxon Valdez. Kuwait’s burning oil wells. Through human malfeasance, petroleum spills, toxic leaks, deforestation, napalming, and other targeted habitat destruction have poisoned ecosystems and killed untold flora, fauna, and persons. This ecocidal conduct has been lightly punished, if at all. Can international criminal law (ICL) do better? The question is urgent: the Independent Expert Panel for the Legal Definition of Ecocide has sparked debate about liability, yet almost nothing about punishment. This article fills that gap by examining how ecocide should be sentenced. Historical, statutory, penological, philosophical, human rights, and ecological lenses shape the analysis. ICL’s post-WWII tribunals rarely engaged with punishment theory, leaving later adjudicators with little guidance and producing inconsistency. The ICC offers firmer orientation, emphasising gravity—both ‘in abstracto’ and ‘in concreto’. Our gravity analysis suggests that ecocide, often involving widespread and intergenerational harm capable of destroying ecosystems and human communities, would rank among the gravest core crimes. It may take multiple forms, involve diverse actors, and overlap with other international offences. The ICC, unlike earlier courts, is structurally positioned to impose serious punishment proportionate to ecocide’s multi-faceted and horrific harms. Understanding how to punish ecocide should therefore inform how its liability is ultimately defined.