Jonatan Rigo García is a PhD candidate in international law at the University of the Balearic Islands. He is currently a visiting scholar at the NOVA Centre on Business, Human Rights and the Environment.
1. Introduction [1]
Due to the threat that the current triple planetary crisis of climate change, pollution and biodiversity loss possesses to existence on Earth as we know it, humanity finds itself in desperate need for a way out. Indeed, as of today, seven out of ten planetary boundaries have been breached, meaning that such disruptions risk triggering a cascade effect on Earth systems that may lead to irreversible changes. Even though law is not but one of the many human institutions which must necessarily adapt to nature’s limits, it is because its potential in shaping and regulating human behaviour that becomes a key tool in addressing environmental issues, including the climate. After all, those are mainly anthropogenic. In this regard, the negative effects of environmental harm upon the full enjoyment of human rights have been long stablished. At the same time, damage to the environment —at least as far as the type of large-scale damage capable of disrupting an ecosystem is concerned— is largely derived from industrial corporate activities. Which, in turn, are also direct responsible of many others human rights abuses. Two paradigmatic examples are the actions of Chevron-Texacoin Ecuador and Shell in Nigeria. [2]
This blog post explores the prospect of holding corporations criminally liable under international law for the crime of ecocide through an historical assessment of past failures.
2. Ecocide and the International Criminal Court
If there is a legal concept which promises to be capable of addressing human rights violations, environmental harm, and corporate liability is that of ecocide. All while potentially promoting ecocentric sensibilities. Despite lacking a harmonised definition, ecocide is generally depicted as human-caused environmental damage on a mass scale (see here, and here).The crime of ecocide would thus seek to prevent human activities that endanger the well-being and health of ecosystems and all its inhabitants, whether human or nonhuman. As a matter of fact, there is a growing interest in the literature to link the most serious instances of crimes and harms to the environment with colonialist legacies, proposing that ecocide cannot be separated from the socio-economic realities of the Global South in its connection with genocide (see here and here). Given that environmental criminality is the fourth most lucrative illegal business, in which corporations play a significant role, it is argued that the latter would be the main perpetrators of ecocide. By way of example, Article 5 of the Draft Convention Against Ecocide presented by Laurent Neyret and his working group in 2017 lays down the obligation on States Parties “to ensure that a legal person can be held criminally liable for the crime of ecocide”.
Bearing in mind the interconnected, global reach of the ecological crisis, an international law of ecocide could encourage businesses to move towards an economic model aligned with planetary boundaries under the threat of criminal prosecutions for the most serious instances of environmental harm, protecting human rights along the way. [3]
Nevertheless, we must be cautioned that international law, let alone international criminal law, is not a panacea and that much deeper systemic changes are required to escape the worst scenarios of the Anthropocene. Moreover, were ecocide to be prosecuted at the International Criminal Court (ICC), we should first acknowledge its limited jurisdiction ratione personae over individuals (Art. 25 Rome Statute or RS). Notwithstanding that corporate officials could be prosecuted under Article 28(2) RS, any attempt to hold legal persons criminal responsible for ecocide should thus aim to reform Article 25. In fact, although it did not reach the final text, the criminal liability of legal persons was proposed and discussed in early drafts of the Statute. Let us have a look on the arguments put forward during the Rome Conference of 1998 (RC) to leave corporate criminal liability out of the RS, and to analyse their current validity (see here and here).
3. Corporate Criminal Liability: Past, Present and Future?
According to the Chairman of the Committee of the Whole, as recorded during its first meeting (Vol. 2, 135, par. 50), the reasons given by the delegations not to accept the liability of legal persons were: the problem of implementation in domestic law, the difficulty of finding acceptable definitions, the implications for the complementarity principle, the possible creation of new obligations for States, and the challenge to what was considered the exclusive focus of the Statute, namely individual criminal responsibility. First, the problem of implementation in domestic law speaks of the divergences among the legal principles of States Parties since, as highlighted by the French delegation, not all of them recognised the concept of criminal liability of legal persons (Vol. 2, 133, par. 32). Secondly, the implications for the complementarity principle refer to the same lack of acceptance —or the disparate options in doing so— of such a concept in many domestic jurisdictions, as noted for instance by the Cuban delegation (Vol. 2, 134 par. 38). Even though the multicoloured landscape of models of corporate criminal liability remains today, the argument of the widespread lack of recognition of this concept may now be overturned. Currently, there are 146 States that recognise the criminal liability of legal persons for at least some type of environmental offences.
As to the difficulty of finding an acceptable definition, apparently the nature of the problem was time constraints as warned, among others, by the US representative (Vol. 2, 135 par. 54). This issue may be easily sidestepped now through Article 121(2) RS’ Review Conference to address any proposed amendment that specifically required so, giving enough time to negotiate a consensus. Furthermore, where a consensus is not attainable, Article 121(3) allows for a two-thirds majority to pass an amendment.
Turning to the possible creation of new obligations for States, it must be noted that several international legal instruments provide for such an obligation, i.e. the adoption of domestic legislation implementing corporate liability, albeit usually referring to the specific legal tradition of the State and making no distinction among administrative, civil and criminal liabilities. To name but a few examples: the 2000 UN Convention Against Transnational Organised Crime (Art. 10), the 2000 International Convention for the Suppression of the Financing of Terrorism (Art. 5), and the 2003 UN Convention Against Corruption (Art. 26). As to regional instruments, for instance, the early 1999 Council of Europe Criminal Law Convention on Corruption was more ambitious in this regard for Article 18 prescribed that State Parties shall ensure that legal persons can be held criminally liable —and not otherwise— for the offences in accordance with this Convention. Concerning environmental offences specifically, the recent Directive (EU) 2024/1203 on the Protection of the Environment Through Criminal Law (Art. 6) expresses this obligation in similar terms, as did the previous Directive 2008/99/EC (art. 7). On the contrary, both the new 2025 Council of Europe Convention on the Protection of the Environment through Criminal Law (Art. 34) and its antecedent of 1998 (Art. 9) kept the ambiguity between criminal and administrative proceedings.
We can as well mention two (yet) non-binding instruments which will be relevant in the upcoming years: the updated Draft Legally Binding Instrument on Business and Human Rights prescribe similar obligations (Art. 8), and the 2019 International Law Commission Draft Articles on Prevention and Punishment of Crimes Against Humanity (Art. 6(8)). Moreover, it is worth recalling the recent 2025 Advisory Opinion on the Obligations of States in Respect of Climate Change of the Internacional Court of Justice. Drawing from previous pronouncements, the Court has confirmed the duty of the States to put in place legislation to regulate the activities of private actors as part of their obligations on both preventing significant harm to the environment and protecting human rights, whether in general or in the context of climate change (pars. 282, 403). Although it did no mention whether criminal mechanisms were included.
Finally, the ICC focus on individual criminal responsibility is perhaps the most problematic issue since this concept remains a core foundation of international criminal law. While this is true, so too is that the Rome Statute is a conflation of different legal traditions, namely the Common Law and the Civil or Continental Law traditions, the latter of which has been historically more reluctant to accept the concept of corporate criminal responsibility while the former has applied it for centuries. Hence, as pointed out by Slye “there is no reason that the same form of accountability at the international level should be viewed differently.” In this regard, the legacy of Nuremberg has often been presented as a definitive shift to individual responsibility in international criminal law. Chief Justice Stone’s renown dictum that “crimes against international law are committed by men, not abstract entities” has been used to argue against corporate liability under international criminal law ever since. Nevertheless, this assertion was made to distinguish between State and individual responsibility and was not directly intended for legal persons, as highlighted in the New TV S.A.L. case (STL-14-05)before the Special Tribunal For Lebanon in 2014 (par. 64), which together with the Akhbar Beirut S.A.L case (STL-14-06) represent the first (and only) precedent of a corporate criminal prosecution by an International Tribunal.
In fact, Articles 9 and 10 of the Nuremberg Charter provided that any group or organisation could be declared criminal by the Tribunal, although not prosecuted. However, the individuals within could, and did, be tried before domestic courts. Put it differently, the Charter somewhat recognised the criminal capacity of legal persons. As Stahn argues, “defendants were charged symbolically as company leaders and individuals to demonstrate the [corporate] economic power behind Nazi atrocities.” Apparently, the objection is not so much to recognise their criminal capacity as their blameworthy. Distinction which, according to classic criminal theories of individual responsibility, is justified on the grounds that corporations are not moral agents and, therefore, blame cannot be attributed to them (here). Nevertheless, the argument that a legal person does not fit within a category which was developed solely for individual criminality is so obvious that it should not be raised as a real impediment. Likewise, the necessity “to adapt and transform basic concepts of criminal law so that they ‘fit’ the special characteristics of a legal person” (ibid.) should neither be a hurdle. At the end of the day, functional different models of corporate criminal liability have been stablished in domestic jurisdictions despite their inescapable deficiencies.
All things considered, this lacuna of international criminal law deriving from a no-longer-existing past could be filled in a near future, given the current, aforementioned conditions. Particularly, the urge for holding corporations internationally accountable for their environmental and human rights wrongdoings could benefit from the initiative to criminalise ecocide. Unfortunately, the proposal presented by Vanuatu back in 2024 to amend the Rome Statute to adopt the former as the fifth standalone core crime has missed the opportunity to meet this momentum.
4. Conclusions
Winds of change are blowing in the international field, where corporate legal shortcuts to avoid accountability are growing thin, although exasperatingly measured at times. Be that as it may, such developments are not enough. The evidence suggests that stronger policies and legislation are required. The time has come to harmonise the shifting sands of corporate liability under international criminal law, as described by Kaeb.
[1] The research stay associated to this work has been funded by a mobility grant of the Direcció General d’Universitats i Ensenyaments Artístics Superiors de la Conselleria d’Educació i Universitats, Govern the les Illes Balears [Grant FPU-CAIB 2023, Government of the Balearic Islands].
[2] Ecuador National Court of Justice’s cassation adjudication, partially confirming the fine imposed upon Chevron, can be consulted here in Spanish (note, however, that the company sued Ecuador before the Permanent Court of Arbitration in an Investor-State dispute, winning the award). The Hague Court of Appeal’s pronouncements on Shell’s oil leaks in, e.g., the village of Oruma (Nigeria) can be consulted here and here in English.
[3] It must be stressed that the mere change to a more circular economy and the implementation of new crimes will most likely be pointless if they remain rooted in the very same anthropocentric, capitalist system that has caused the crisis in the first place (see here and here).
Suggested citation: J. Rigo García, ‘Revisiting International Corporate Criminal Liability in Light of the Crime of Ecocide‘, NOVA BHRE Blog, 14 February 2026