Excerpted From: Carmen G. Gonzalez, Racial Capitalism, Climate Change, and Ecocide, 41 Wisconsin International Law Journal 479 (Summer, 2024) (251 Footnotes) (Full Document)

CarmenGonzalezLawyers, scholars, and activists have long sought the recognition of ecocide as either a method of genocide or as an independent crime under the Rome Statute of the International Criminal Court (ICC). The term “ecocide” generally refers to human activities that cause massive and severe environmental degradation. In 1973, Richard Falk was among the earliest scholars to call for the criminalization of ecocide in response to the devastating impacts of US environmental warfare in Vietnam. In 2010, international lawyer and environmental activist Polly Higgins proposed that the Rome Statute be amended to incorporate ecocide as a fifth stand-alone international crime, along with genocide, crimes against humanity, war crimes, and the crime of aggression. While these proposals were unsuccessful, the call for the criminalization of ecocide was reinvigorated in 2021, when the Independent Expert Panel, established by the Stop Ecocide Foundation, proposed a definition of the crime of ecocide for inclusion in the Rome Statute. The panel defined ecocide as “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.”

The effort to criminalize ecocide was motivated, at least in part, by the unprecedented threats to humans and nature caused by climate change and by the failure of international environmental law to adequately respond to the climate crisis. Describing climate change and environmental degradation as “the greatest threat to human rights in the Pacific,” the Republic of Vanuatu joined forces with other Pacific Island nations to advocate for the criminalization of ecocide. In March 2023, the EU parliament added ecocide to its draft list of environmental crimes, providing momentum to the campaign to amend the Rome Statute. Advocates for the incorporation of ecocide into international criminal law have argued that the criminal prosecution of corporate officers and high-level government officials may at long last end state and corporate impunity for climate change.

While the campaign to criminalize ecocide has produced lively legal and policy debates, the colonial origins of the fossil fuel-based world economy and the disparate impact of the climate crisis on racialized, colonized, and marginalized populations has often been overlooked in ecocide-related legal scholarship. This omission has produced depoliticized narratives about ecocide disconnected from the struggles of communities and states on the frontlines of climate change and other ecological crises.

This Article seeks to center the experiences of the racialized and the colonized by using the framework of racial capitalism to examine the climate crisis and the proposal to codify the crime of ecocide. Coined by South African scholars and activists and popularized by political theorist Cedric Robinson, the theory of racial capitalism offers valuable insights on the ways that capitalism's profit-making imperatives systematically degrade and plunder the land, labor, and natural wealth of persons racialized as inferior and the ecosystems upon which human and nonhuman life depend. Robinson's pioneering work draws upon the insights of what he called the Black radical tradition, including the scholarship of W.E.B. Du Bois, Eric Williams, Oliver Cromwell Cox, and C.L.R James. Robinson argued that capitalism did not homogenize the social hierarchies of feudalism, but instead intensified and reconfigured them as “racial” distinctions for the purpose of profit-making, initially in Europe and later globally. Following decades of relative neglect among critical social theorists, the theory of racial capitalism has experienced a resurgence in recent years across a variety of disciplines, including law. This Article draws upon the burgeoning racial capitalism literature to reframe the debates on climate change and ecocide and to provide context for the other articles published as part of this issue.

The Article proceeds in three parts. Part I explains the relationship between the theory of racial capitalism and the climate crisis and highlights two core features of racial capitalism: its racial stratification of humans for the purpose of profit making and its eco-destructive logic. Part II examines international law's complicity with racial capitalism's extraction of wealth from nature and from persons racialized as inferior. Part III draws upon the insights of the theory of racial capitalism to offer some preliminary observations on the movement to criminalize ecocide. The Article's conclusion confronts the possibility that the criminalization of ecocide may inadvertently reinforce rather than subvert the core features of racial capitalism, and it recommends alternative approaches grounded in reparative and restorative justice.

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This Article questions the emancipatory potential of criminalizing ecocide to address climate change and other socio-ecological crises. It does so by using the framework of racial capitalism to analyze the root causes of climate change, the complicity of international law, the limitations of international criminal law, and the pitfalls of the proposed definition of ecocide.

Before suggesting alternatives to the criminalization of ecocide, it is useful to briefly review the Article's key arguments. The climate crisis is a function of racial capitalism's voracious demand for cheap raw materials, cheap waste disposal, and cheap labor extracted disproportionately from marginalized and racialized communities. Racial capitalism targets specific groups for plunder and then constructs them as racially inferior to justify and facilitate successive interventions that only intensify their deprivation. Racial capitalism's profit-making imperative requires the endless expansion of production and consumption and generates enormous amounts of waste, including greenhouse gases. Its rapacious, extractive relationship with humans and nature has destabilized the planet's ecosystems and created a vast and growing number of racial sacrifice zones, where the land and the people have been devastated by pollution; by climate-related disasters; and, most recently, by mines, dams, and other projects related to the green energy transition.

International law has normalized and legitimized the destruction of nature and the immiseration of humans racialized as inferior. It has accomplished this through a variety of doctrines, including Eurocentric conceptions of property and sovereignty as well as the doctrine of discovery, terra nullius, the Mandate System of the League of Nations, the post-World War II trusteeship system, and the discourse of development. One of the themes that runs through the history of international law is the civilizing mission--the racialization of the Global South as inferior to construct the plunder of its resources as a benevolent attempt to bring civilization, modernity, and development to the benighted corners of the world. Even sustainable development, which seeks to balance environmental protection with social and economic development, has failed to curb racial capitalism's eco-destructive logic due to its commitment to economic growth.

While the discourse of ecocide may be useful as a means of exposing and condemning the ecological damage caused by powerful states and transnational corporations, expanding the ICC's jurisdiction by incorporating ecocide into the Rome Statute is problematic for at least three reasons. First, international criminal law's emphasis on individual culpability and spectacular acts of ecological destruction may obscure the “slow violence” racial capitalism inflicts on nature and on persons racialized as inferior. By treating high-profile ecocatastrophes as isolated and aberrant events, international criminal law may implicitly normalize and condone racial capitalism's unrelenting but often less visible structural violence. Second, international criminal law has historically reproduced international law's civilizing mission by constructing the Global South as lawless and barbaric, selectively prosecuting Africans, and ignoring the structural causes of poverty, conflict, and environmental degradation (including the culpability of Northern states and transnational corporations). This suggests that the targets of criminal prosecution for ecocide are likely to be Global South leaders and not the government and corporate officials in the Global North most responsible for the climate crisis. Third, the incorporation of cost-benefit analysis into the definition of ecocide may reinforce the treatment of nature as a resource for commodification and may devalue the lives and world views of colonized and racialized communities.

In short, the move to codify ecocide does not challenge the laws, institutions, or ideologies that reproduce racial capitalism. Instead of punitive solutions that seek to scapegoat individuals for the structural ills of capitalism, it may be more productive to focus on reparative and restorative forms of justice. One of the lessons of this Article is that the destruction of nature and the violence inflicted on marginalized populations are deeply intertwined. A second lesson is that the climate crisis originates in and intensifies the injustices caused by slavery, colonialism, and neocolonialism. As Sarah Riley Case has observed, reparations for ecological and racial injustices are rarely discussed together by international legal scholars. Recognizing the interconnectedness of slavery, colonialism, neocolonialism, and climate change could lead to more robust calls for structural, forward-looking reparations that subvert rather than reinforce the core features of racial capitalism.

Morris I. Leibman Professor of Law, Loyola University Chicago School of Law.