Abstract
The destruction of the natural environment represents a common and devastating feature of contemporary non-international armed conflicts (NIACs). Despite this, the Law of Non-International Armed Conflict (LoNIAC) lacks explicit treaty provisions and definitive customary international law rules to protect the environment. The Rome Statute of the International Criminal Court (ICC) currently omits specific environmental war crimes applicable to NIACs. It is for this reason that this study critically evaluates whether the proposed amendment to the Rome Statute to introduce ‘ecocide’ as a fifth international crime can effectively serve as that gap-filler to secure environmental protection and enhance accountability in NIACs. While the ecocide proposal is championed as a necessity for peacetime environmental destruction, it’s functional compatibility with the realities of a NIAC remain underexplored. Addressing this gap, this study questions whether this proposed amendment, if adopted, can be utilised to hold non-state actors accountable for environmental destruction during NIAC. Through analysis of treaty, customary, general principles of law and the elements of the proposed Draft Article 8ter, this contribution deconstructs the proposed crime of ecocide and argues that the ecocide formulation is structurally misaligned with NIAC including the anthropocentric “wanton” standard, and damage thresholds which clash with the established principle of military necessity. It’s subjective mens rea imposes an evidentiary burden on evidence scarce in conflict zones in a NIAC. Ultimately, this contribution demonstrates that accountability may better be achieved through existing frameworks rather than relying on a statutory amendment. This may include securing Deeds of Commitment with non-state armed groups and applying International Human Rights Law and International Environmental Law as a lex specialis.