[Article updated: December 5, 2023]

While the war in Ukraine certainly piqued the interest of many commentators as to the status of the crime of Ecocide1 the current Israeli war in Palestine – both in Gaza clearly and arguably in the West Bank – is bound to hasten the introduction of Ecocide as a crime, whether committed in peacetime or an armed conflict.

Ecocide was a crime originally written into the Draft Rome Statute2 in the aftermath of World War II, when the Holocaust was seared into the minds of the Western elite and, ironically “never again” was the theme of the day, but the destruction of the natural environment on a widespread scale was also condemned. Thus Ecocide was part of the Statute’s suite of crimes including Crimes Against Humanity, War Crimes, Genocide and Crimes of Aggression. But it was removed towards the end of the process of drafting a final version. Why that happened is beyond the scope of this piece.

However, what did remain in the Statute, the destruction of the environment, is a crime in international law if committed during a war. There is no reference to “ecocide” as such, but that is what is understood by the wording in Article 8 (2) (b) (iv) of the Rome Statute dealing with War Crimes:

“(iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or 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 this has been criticized3, rightly, as being weak for allowing environmental loss “where not excessive…”, the devastation wrought in Gaza by the IDF (aka Israel Death Force), a Doomsday scenario we have seen day after day on TV , surely qualifies as a violation of the Rome Statute.

There is, of course, an interesting connection between Genocide and Ecocide. Under the United Nations Convention on the Prevention and Punishment of Genocide the crime is committed in several different ways:

Article II In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

      1. Killing members of the group;
      2. Causing serious bodily or mental harm to members of the group;
      3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
      4. Imposing measures intended to prevent births within the group;
      5. Forcibly transferring children of the group to another group.
      6. In my view Israel has clearly violated sections II (a) (b) (c), but of particular interest here is section (c).
      7. Article 1 of the Convention on Genocide puts an obligation on all signatories to prevent and punish acts of Genocide.4

The evidence and commentary I have seen from afar on both Al Jazeera (largely from a Palestinian perspective) and the Western media en banc (from the IDF and Israeli officials past and present, and pundits) much of the physical evidence of devastation is the same or similar, showing very substantial areas of the Gaza strip, small and crowded as it is, has been flattened. The physical demolition of residences, churches, mosques, schools, clinics and much else; the killing of perhaps 20,000, the injuring of perhaps 30,000 Palestinians-many thousands young children and babies-is clearly Genocidal.

What is the connection with Ecocide? While much of the evidence will only be discovered in the future when the impact of the toxic bombs, shells from artillery and smaller weapons upon the waters – above ground and under – the dusty Gazan soil, and the flora and fauna-possibly even the fish along the coast- can be measured through scientific research, there can be no doubt that the natural environment has been very seriously affected negatively, probably for a very long time. Of course some of the destruction of the natural environment is already clear to the naked eye.

There are as of now unknown impacts e.g. it is not clear whether the Israelis are using the uranium-depleted shells in their bombardment. But such impacts are what Prof. Rob Nixon has called “hidden” and “deferred” results, the “silent violence” wreaked upon the poor5, in this case the Palestinians-physically and mentally- thus a massive Genocide- and upon the ecosystems of the Gaza environment, a truly tragic Ecocide.

Since the ICC has  jurisdiction over Gaza and the West Bank from 2014, and a number of complaints of Israeli Genocide have already been filed with the ICC, it can agree to inquire whether there are reasonable grounds to investigate whether Genocide  has been committed in either or both territories. Chief Prosecuter Khan is there now making inquiries.

With regard to Ecocide, as seen above it is alluded to in Article 8 of the Rome Statute, therefore an action for harm to the natural environment can also be sought from the ICC.

Alternatively one or more of the countries, about a dozen, with Ecocide in their Criminal Codes may seek to assert “universal jurisdiction”6 in order to launch a case against Israel, its leading officials responsible for the military actions taken in Gaza, including of course the Prime Minister Netanyahu, all or at least some of his National Security Cabinet, and top ranking IDF personnel.

Gill Boehringer
Professor Gill H. Boehringer is Honorary Senior Research Fellow at Macquarie University Law School, Sydney, Australia.

Banner: IDF forces during ground operations in the Gaza Strip, 1 November 2023. Wikipedia Commons

  1. See for example: https://ipisresearch.be/weekly-briefing/the-ukraine-war-environmental-destruction-and-the-question-of-ecocide/
  2. https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf
  3. https://www.reuters.com/business/sustainable-business/society-watch-drive-make-ecocide-an-international-crime-gains-momentum-2023-02-20/#:~:text=In%202021%2C%20independent%20lawyers
  4. Convention on the Prevention and Punishment of the Crime of Genocide, Adopted by the General Assembly of the United Nations on December 9, 1948 as General Assembly Resolution 260, and entered into force on 12 January 1951, available at: https://treaties.un.org/doc/Publication/UNTS/Volume%2078/volume-78-I-1021-English.pdf. The Genocide Convention has 147 signatories, including the United States, Israel and Palestine.
  5. Rob Nixon, Slow Violence and the Environmentalism of the Poor, Cambridge, Mass., Harvard University Press, 2011.
  6. https://ijrcenter.org/cases-before-national-courts/domestic-exercise-of-universal-jurisdiction/

Posted by Gill H. Boehringer

Professor Gill H. Boehringer is Honorary Senior Research Fellow at Macquarie University Law School, Sydney, Australia. He has a long history of struggle for social justice and against repression and exploitation of workers, those who defend them, and to protect the environment. He is the Co-Chair of the Monitoring Committee on Attacks on Lawyers of the International Association of People’s Lawyers. His ongoing research focuses on two interconnected phenomenon threatening the basis of democracy in the Philippines: the murderous “war on drugs” and the violent attacks on lawyers, many of which are drug war related.