Ecocide: Exploring the Roots and Current Applications of the Concept

by Pamela McElwee

On September 9, 2024, the small Pacific Island country of Vanuatu, joined by Fiji and Samoa, formally submitted a request to the International Criminal Court (ICC) to recognise ecocide as an international crime. The proposal asked the UN and countries belonging to the Court to revise its founding statute, which currently prosecutes four types of crime: genocide, war crimes, crimes against humanity, and crimes of aggression. Ecocide would be a fifth offense; Vanuatu’s argument, as expressed by its special envoy for Climate Change and Environment, Ralph Regenvanu, was that ‘Environmental and climate loss and damage in Vanuatu is devastating our island economy, submerging our territory, and threatening livelihoods … Legal recognition of severe and widespread environmental harm holds significant potential to ensure justice and, crucially, to deter further destruction’.¹

The concept of ecocide as an international crime has a history going back to the Vietnam War, when the term itself originated. For many years interest in ecocide related primarily to preventing or remediating the environmental impacts of war. More recently, the concept of ecocide has been applied outside of military contexts, particularly to the possibility of holding governments or companies responsible for climate change.² Whether this approach will be effective remains unclear, given the past fifty years of experience since the Vietnam War. And what this shift would mean for countries, international organisations, and businesses, has rarely been explored.

In its submission, the Republic of Vanuatu proposed a definition of 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’. This definition was developed in 2021 by a panel of independent experts convened by the Stop Ecocide International, an NGO that has campaigned on this issue since 2017. While the Foundation’s work has referenced the Vietnam War, its proposed definition of ecocide raises as many questions as it answers. How does a concept originally applicable to wartime come to be applied more widely? Who should be held culpable, individuals or organisations? Does the standard of ‘wanton acts’ apply only to extraordinary acts of pollution, like oil spills, or could it encompass more day-to-day carbon emissions that raise global temperatures, also with potentially devastating consequences? Are crimes against the environment also violations of human rights, or can nature be treated as worthy of its own rights? And is a legal approach or a social and political approach the right one to tackle current environmental crises? On examination of the deeper roots of ecocide in the Vietnam War, and the subsequent attempts to hold both military and nonmilitary actors responsible for environmental destruction, the challenges to a more expansive legal approach to ecocide become clearer.

The roots of ecocide in the US-Vietnam War

The term ‘ecocide’ was first used in early April 1969, in a story in an Ohio newspaper describing ‘crimes against humanity by destruction of the environment’. Most histories attribute wider use of the term to Dr Arthur Galston, a plant biologist at Yale University, who spoke of ecocide regularly, from 1970 onward, to describe the deliberate targeting of the environment in the ongoing conflict in Vietnam. Galston and many other US scientists particularly objected to the widespread use of defoliating herbicides, most infamously the one dubbed ‘Agent Orange’, by the US military across swaths of South Vietnam, which had begun in late 1961. This was not the first use of herbicides in conflict: the British had deployed them in the 1950s during the Malayan Emergency, and when the US Department of Defense first proposed using them in Vietnam, they pointed to this precedent.³The military purpose was to remove the vegetation cover used for concealment by Vietnamese communist forces (known colloquially as the Viet Cong), who posed an increasingly difficult challenge to South Vietnam’s government. President John F. Kennedy personally gave approval to the strategy, and for the first year all herbicide targets had to receive specific approval from the South Vietnamese government and the White House. ⁴

Between 1961 and 1971, Operation Ranch Hand sprayed over 75 million litres of herbicides, more than half of which was Agent Orange, over South Vietnam and Laos. Herbicide missions were carried out by US Air Force pilots in specially designed C-123 cargo planes, which flew low and could release around 3,600 litres of herbicides in short bursts, taking only around four minutes to blast chemicals over 130 hectares per trip. Spraying missions were conducted along roads, canals, railroads, and other transportation arteries, as well as in dense jungle areas that were suspected of being supply routes or hideouts and sanctuaries for the Viet Cong. Spraying was also targeted at crop production to deny food to suspected insurgents and their supporters. Agent Orange, a 50:50 combination of the chemicals 2,4,5-T and 2,4-D was only one of the herbicides sprayed, but it came to dominate discussion of the Ranch Hand operations because of the subsequent discovery that it was contaminated with dioxin.

One of the first people to raise concerns about the impacts of Ranch Hand was Congressman Robert W. Kastenmeier of Wisconsin, who wrote to President Kennedy in March of 1963 and ‘urged him to renounce the use of herbicides as chemical weapons in Vietnam, questioning whether …[it] was worth compromising America’s moral principles’.⁵ At this point, the Geneva Protocol prohibiting the use of chemical weapons, which had been negotiated in 1925 after the horrific use of chlorine and mustard gas in World War 1, remained unratified by the US; Kastenmeier and other Senators now urged ratification.⁶ The Pentagon’s response was that herbicides did not fall under the definition of chemical weapons, which they defined as those deliberately targeting human populations. The herbicides in Vietnam targeted hiding areas, not rebels themselves, according to the military’s narrative.

Viet Cong revolutionary soldiers on the ground had little understanding of what was being sprayed from the planes and why. A North Vietnamese general later recalled:

suddenly one morning, after the enemy aircraft glided as usual, we saw the sky hovering amid the dust clouds. White clouds descended, covering the forest canopy, spreading thickly on the ground, and dissolving into spring water … From then on, the whole forest area from Xieng Phan to the 9th road – 150 kilometres long and dozens of kilometres wide – was contaminated with toxic chemicals. Except for two tree species that survived, all the forest trees were dry, dying and dead …We did not understand all the harmful effects of this chemical, and … most of our officers and soldiers used spring water contaminated with the poison.⁷

Rising concerns for the campaign’s environmental impacts began to be expressed in the US. In 1964, the Federation of American Scientists voiced opposition, and in 1967 the American Association for the Advancement of Science (AAAS) called on the Department of Defense to study the possible long-range ecological consequences of the Ranch Hand operations. In the same year, President Johnson’s Science Advisor received a petition signed by more than 5,000 scientists, including 17 Nobel laureates and 129 members of the National Academy of Sciences, urging the end to the use of anti-crop chemicals in Vietnam, warning that ‘If the restraints on the use of one kind of CB [chemical or biological] weapon are broken down, the use of others will be encouraged’.⁸ Notably, in these protests there was little direct attention to health effects of herbicides on Vietnamese citizens; rather, scientists objected to the ecological consequences of widespread forest loss, the destruction of crops and possible food crises, or the possibility of encouraging more destructive chemical weapons use by other nations, perhaps against the US. There was little question of potential human impacts from Agent Orange, as the herbicides 2,4,5-T and 2,4-D were widely used in the US for weed suppression and were considered largely safe.

In response to these protests, the Defense Department commissioned the Midwest Research Institute to conduct a study – based on a survey of existing literature regarding the impacts of herbicides on soil and plant life, rather than on any Vietnam-based fieldwork – which concluded that the defoliating effects of the Ranch Hand herbicides would not last long and that re-vegetation would occur. Dissatisfied with this report, the AAAS established a Herbicide Assessment Commission (HAC), led by Dr Arthur Westing of Windham College, to visit Vietnam. Funded with only $80,000, the HAC looked at maternity records in South Vietnam, patterns of crop destruction, impacts on food chains, regeneration of tropical forests and other topics.

Meanwhile, in the fall of 1969, a study conducted in the US and published by the National Cancer Institute presented evidence that 2,4,5-T could in relatively high doses cause malformed offspring as well as stillbirths in mice, due to TCDD dioxin contamination, a by-product of the production process at high temperatures.⁹There was immediate, significant domestic pressure to suspend the use of 2,4,5-T in the US, with the USDA obliging in early 1970 by banning its use on food crops.¹⁰ The results of the HAC study were also widely reported in the popular press the same year, as their findings were significantly more negative than that of the previous Defense Department study, with the AAAS group the first to systematically raise the concern that there might be long-lasting damage to both humans and the ecosystem.¹¹ This mounting pressure led the DoD to suspend use of Agent Orange on April 15, 1970, and the last herbicide mission of the war was flown in January 1971.

Legal approaches to ecocide

Alongside the pressure from scientists concerned about herbicides, anti-Vietnam War protesters raised attention to a number of perceived war crimes. At a 1972 UN Conference on the Human Environment in Stockholm (widely seen as giving rise to the modern era of global environmental governance), Swedish Prime Minister Olof Palme opened with warnings of ecocide: ‘The immense destruction brought about by indiscriminate bombing, by large scale use of bulldozers, and herbicides is an outrage sometimes described as ecocide, which requires urgent international attention’.¹² These sentiments had been prefigured in a pre-conference event featuring a three‐day ‘hearing on the disruption of human society in Indochina’, which criticised American defoliation and bombing, among other issues. The pre-meeting event was the first to call for a ‘UN Convention on Ecocidal Warfare’ that would seek to define and proscribe ecocide as an international crime of war and establish the mechanisms for demanding reparations from responsible parties. Both Arthur Galston and Art Westing were in attendance. Also present was Princeton Law Professor Richard Falk, who would publish an article the following year arguing that existing genocide conventions were not enough to cover US actions in Vietnam. According to Falk, what was needed was an International Convention on the Crime of Ecocide.¹³ Yet despite the attention from international bodies during the early 1970s, such a convention failed to materialise.

Nonetheless, other treaties and laws were developed or altered in response to the devastation of Vietnam, including a new treaty prohibiting the use of large-scale environmental modification technologies in warfare. These changes arose in the early 1970s, alongside the realisation that, in addition to herbicides, the US military had secretly developed a weather-modification programme that used cloud-seeding with silver iodide to create torrents of rain, in order to bog down combatants on the Ho Chi Minh Trail. (The Trail was a labyrinthine series of paths and roads that moved people and material from North Vietnam to the South to support the resistance, mostly via rugged mountains bordering Laos; an estimated 1 million people would traverse it by war’s end.) Operation Popeye targeted the Trail with cloud-seeding from 1967–72, which was said to have increased rainfall by 30 percent over Laos and extended the monsoon season by thirty to forty-five days, at a cost of four million dollars per year. These efforts were considered to have slowed at least some of the material and soldiers moving on the Trail.¹⁴ The operation shut down abruptly in 1972, after an exposé by The New York Times that lead to hearings in the US Senate on ‘Prohibiting Military Weather Modification’ in July of that year. The Soviet Ambassador to the UN declared a need to outlaw future use of any technologies of weather alteration, giving such examples as the creation of windows in the ozone layer, the use of infra-acoustic waves, and the creation of artificial hurricanes and tsunamis.¹⁵ In 1977, both the US and USSR agreed to a UN Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD), which specified the manipulation of ‘earthquakes and tsunamis, an upset in the ecological balance of a region, or changes in weather patterns (clouds, precipitation, cyclones of various types and tornadic storms), in the state of the ozone layer or ionosphere, in climate patterns, or in ocean currents’, where such activity would cause ‘widespread, long lasting or severe’ damage.¹⁶

In addition to the ENMOD Convention, the Geneva Conventions, which govern conduct during wartime, were revised with new additional protocols in 1977, including Article 55, which prohibits ‘widespread, long term, and severe damage to the natural environment’ during warfare. The protocol states that ‘This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population’. While the US has not ratified this protocol, nearly all other countries have.¹⁷

International law was further reshaped in the 1990s after the end of the Cold War, including by the reemergence of proposals for an international court that would adjudicate war crimes, which were rooted in the lessons from the Nuremberg trials of Nazi leaders in post-war Europe but also informed by the experiences of the Vietnam War. The UN’s International Law Commission (ILC) drew up a Draft Code of Crimes Against the Peace and Security of Mankind in the early 1990s and considered the inclusion of an environmental crime within this framework. The ILC debated whether to treat environmental crimes as a form of crime against humanity, a form of war crime, or as a distinct category. In 1998, after a decade of negotiations, UN member countries adopted what became known as the Rome Statue, which included Article 8(2)(b)(Iv) on War Crimes referring to the intentional creation of ‘widespread, long-term and severe damage to the natural environment’ within a war context, although not more widely.¹⁸ The treaty entered into force on July 1, 2002 and established the International Criminal Court (ICC) in The Hague.

A new push to have ecocide more explicitly recognised by the Rome Statute as a unique type of crime, rather than just one among many potential war crimes, came from Polly Higgins, a Scottish lawyer, who proposed in 2010 that the ICC pass judgement on the concept of ecocide. In 2019, the European Parliament supported these efforts and voted for an amendment to its Human Rights and Democracy in the World report that urged ‘the EU and the Member States to promote the recognition of ecocide as an international crime under the Rome Statute’. Higgins was a co-founder of Stop Ecocide International, the organisation that in 2021 convened a panel of independent jurists to develop a definition of ecocide that could be adopted by the parties to the Rome Statute, and which was used by Vanuatu in its recent submission to the ICC.¹⁹

National ecocide laws have been adopted as well. Vietnam was the first country to adopt a law against ecocide, no doubt as a consequence of its experiences during wartime. The Penal Code of Vietnam adopted in 1990 notes in Article 278 that ‘Ecocide, destroying the natural environment, whether committed in time of peace or war, constitutes a crime against humanity’.²⁰ Belgium has also introduced a national crime of ecocide, and other countries such as Peru, Brazil, Scotland, Italy, and Mexico are considering their own laws.²¹ Yet the ecocide law in Vietnam has resulted in no prosecutions for environmental damage to date, despite several large corporate pollution cases involving millions of dollars of environmental damage. The adoption of other ecocide laws pertaining to domestic, peacetime scenarios (including, for example, in both Russia and the Ukraine) have also had little impact on either preventing harm or holding powerful actors accountable.

Part of the push to have ecocide recognised as a specific type of prosecutable activity is due to the perceived weaknesses of current international law, environmental agreements, and treaties that rarely have a focus on criminal conduct or liability.²² With only a few exceptions, environmental agreements encourage certain types of activity within national boundaries (such as to promote sustainability) but have few mechanisms for punishment for those who fail to comply, and no criminal liability. In other cases, a determination of environmental damage is contingent upon humans also being harmed by the activity, rather than recognising nature’s inherent value.

There are other ways that national legal systems could approach damages to the environment. For example, damage to capital assets is usually treated as property crime in most countries; if damage to natural assets (e.g., to water, lands and other supplies of ecosystem services) were similarly criminalised, it might force businesses to treat nature as an asset class and risk to their bottom lines. Other court decisions recognising the legal rights of nature have provided further potential mechanisms for redress. The UN General Assembly affirmed the human right to a ‘clean, healthy and sustainable environment’ in 2022, laying the groundwork for citizens to fight for that right.

However, corporate malfeasance can be addressed by national laws and existing international courts, and it is unclear how ecocide statutes would help the situation. For example, a Dutch court has ordered the Nigerian branch of Shell to compensate farmers for recent oil spills,²³ and the InterAmerican Court of Human Rights ruled in 2012 that oil companies who polluted lands on Kichiwa-owned territory should pay reforestation compensation.²⁴ A recently adopted EU Corporate Responsibility Due Diligence Directive from the summer of 2024 requires large companies based in Europe or doing more than $450 million worth of business there to contribute to ‘the identification, and where necessary, prioritisation, prevention and mitigation, bringing to an end, minimisation and remediation of actual or potential adverse human rights and environmental impacts connected with companies’ own operations, operations of their subsidiaries and of their business partners in the chains of activities of the companies, and ensuring that those affected by a failure to respect this duty have access to justice and legal remedies’.²⁵

Conclusions:

As the 50^th anniversary of the end of the Vietnam War arrives in the spring of 2025, the legacies of this conflict and its environmental devastation continue to echo in current debates over legal approaches to ecocide. Within Vietnam, many post-war impacts remain unaddressed: vast stretches of formerly rich mangrove forests remained barren a generation after the end of the war and have had to be mechanically re-planted. Landmine and UXO-studded fields still regularly kill and maim unsuspecting farmers and children. Most devastatingly, dioxin reservoirs remain in the soil, particularly around former US airbases where the herbicides were stored, causing health impacts among second- and third-generation nearby residents, who have ingested these toxins. Long-term remediation of these sites has only begun in the last fifteen years, long after the end of the war, indicating how challenging it is to fully address the environmental impacts of warfare.²⁶

The first agreement between the US and Vietnam to address war damages did not take place until 2006, when U.S. President George W. Bush and Vietnamese President Nguyen Minh Triet agreed to undertake cooperative efforts, with Congress appropriating $3 million for the remediation of Da Nang airport. In total, US budgets have allocated nearly $500 million for Agent Orange or disability-related issues, including in the 2021 Defense Authorization Act, which provided $15 million to begin clean-up of the Bien Hoa Airbase (which may eventually cost an additional $200-300 million to remediate). A bill before Congress known as the Victims of Agent Orange Relief Act (H.R. 9977) would require the Secretary of State to provide increased humanitarian assistance to individuals in Vietnam, as well as ‘to remediate those geographic areas of Vietnam that the Secretary determines contain high levels of Agent Orange’.

Would an ecocide statute under the ICC have sped up the remedial work in Vietnam, or prevented the damage in the first place? Who could have been charged with ecocide – President Lyndon Johnson, Defense Secretary Robert McNamara, or executives from Dow Chemical and other makers of herbicides? The herbicides sprayed in Vietnam were in widespread commercial application in the US, and the government had determined that spraying would reduce risk to US troops. Although US veterans were able to settle a class action lawsuit (the Agent Orange Product Liability Litigation case) with herbicide manufacturers in 1984, resulting in a settlement fund of $180 million, lawsuits by Vietnamese citizens against these manufacturers were unsuccessful, with US courts ruling that government and military officials had authorised the herbicide use.²⁷

If holding the manufacturers of chemicals directly responsible for harm has failed in the past, is it likely that a more diffuse case regarding climate liability might succeed under a future ecocide statute? The use of fossil fuels is not criminalised anywhere – as herbicide use was not in the 1960s. Consequently, the limitations of the use of ecocide statutes in addressing contemporary climate crises seem considerable, and other social or political strategies by citizens might be more successful in pressuring businesses and governments to reduce their climate impacts. In the case of Vietnam, it was the role of scientists and legislators, alongside members of the affected population, working together to pressure decision-makers, that halted herbicide use and led eventually to a process of mitigating its historical impacts. Such coalition-building and political pressure might similarly be applied to the climate crises with more success than ecocide laws alone.

FOOTNOTES

1
Stop Ecocide International, “Mass destruction of nature reaches International Criminal Court (ICC) as Pacific island states propose recognition of ‘ecocide’ as international crime”, September 9, 2024. https://www.stopecocide.earth/2024/mass-destruction-of-nature-reaches-international-criminal-court-icc-as-pacific-island-states-propose-recognition-of-ecocide-as-international-crime
2
Rob White, “Ecocide and the Carbon Crimes of the Powerful,” The University of Tasmania Law Review 37, no. 2 (2018): 95-115.
3
William Buckingham, “Operation Ranch Hand: The Air Force and Herbicides in Southeast Asia 1961-1971.” Office of Air Force History, United State Air Force (1982). http://www.dtic.mil/dtic/tr/fulltext/u2/a121709.pdf
4
David Zierler, The Invention of Ecocide: Agent Orange, Vietnam, and the Scientists who Changed the Way We Think About the Environment (University of Georgia Press, 2011).
5
Buckingham, “Operation Rand Hand.”
6
The official title of the 1925 Geneva Protocol is the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare. The US Senate did finally ratify the Geneva Protocol in April 1975, just weeks before the conclusion of the Vietnam War
7
Dong Si Nguyen. Duong Xuyen Truong Son: Hoi Uc [The Truong Son Trail: Reminiscences]. (NXB Quan Doi Nhan Dan, 1999). Translated by the author.
8
Matthew Meselson archives, letter to President Lyndon B. Johnson, 1967: https://projects.iq.harvard.edu/files/meselsonarchive/files/1967_petition_to_johnson.pdf
9
Institute of Medicine, Veterans and Agent Orange: Health Effects of Herbicides Used in Vietnam. Committee to Review the Health Effects in Vietnam Veterans of Exposure to Herbicides (National Academies Press, 1994).
10
In fact, Rachel Carson’s 1962 book Silent Spring had cited 2,4-D and 2,4,5-T in discussing the potential human health consequences of use of chemical herbicides, but no changes to their use had been proposed until the 1969 NIH study.
11
Philip Boffey, “Herbicides in Vietnam: AAAS Study Finds Widespread Devastation’,” Science 171 (1971): 43-47.
12
https://olofpalme.arbark.se/wp-content/dokument/720606a_fn_miljo.pdf
13
Richard A. Falk, “Environmental Warfare and Ecocide — Facts, Appraisal, and Proposals’,” Bulletin of Peace Proposals 4, no. 1 (1973): 93-95.
14
Pamela McElwee, “An environmental history of the Ho Chi Minh Trail,” in Military Landscapes, ed. Anatole Tchikine and John Dean Davis (Dumbarton Oaks and Harvard University Press, 2021): 249-278
15
Holes in the ozone layer did actually occur due to manmade chemicals, and this discovery in the 1980s led to the adoption of the Montreal Protocol, one of the most successful global environmental agreements.
16
Tracey Raczek, Geoengineering: Reining in the Weather Warriors (Chatham House, 2022), https://www.chathamhouse.org/2022/02/geoengineering-reining-weather-warriors
17
Only the US, Pakistan and Iran have not ratified the “Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977’.” Other countries have signed or ratified with reservations. The US objection is apparently based on concerns that Article 55 is overly broad and ambiguous. See Theodore Richard, Unofficial United States Guide to the First Additional Protocol to the Geneva Conventions of 12 August 1949 (Air University Press, 2019).
18
Kevin Jon Heller and Jessica C. Lawrence, “The Limits of Article 8(2)(b)(iv) of the Rome Statute, the First Ecocentric Environmental War Crime,” Georgetown International Environmental Law Review 20 (2007), https://ssrn.com/abstract=979460
19
Liana Minkova, “The Fifth International Crime: Reflections on the Definition of ‘Ecocide’,” Journal of Genocide Research 25 (2021): 62-83
20
https://ihl-databases.icrc.org/en/customary-ihl/v2/rule45?country=vn
21
https://www.stopecocide.earth; https://www.parliament.scot/-/media/files/legislation/proposed-members-bills/consultation-document-final-version–(1).pdf; https://www.theguardian.com/environment/2023/aug/26/growing-number-of-countries-consider-making-ecocide-crime
22
Alessandra Mistura, “Is There Space for Environmental Crimes Under International Criminal Law? The Impact of the Office of the Prosecutor Policy Paper on Case Selection and Prioritization on the Current Legal Framework’”, Columbia Journal of Environmental Law 43, no. 1 (2018): 181, 191, 201; Anastacia Greene, “The Campaign to Make Ecocide an International Crime: Quixotic Quest or Moral Imperative?” Fordham Environmental Law Review 30, no. 3 (2019): 1.
23
https://www.aljazeera.com/news/2021/1/29/dutch-court-orders-shell-to-pay-nigerian-farmers-over-oil-spills
24
http://hrlibrary.umn.edu/iachr/C/245-ing.html
25
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32022L2464 and https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:32023R2772 (emphasis added)
26
Susan Hammond and Đặng Quang Toàn, US Assistance to Vietnamese Families Impacted by Agent Orange, Special Report (US Institute of Peace, 2023), https://www.usip.org/sites/default/files/2023-09/sr-523_us-assistance-vietnamese-families-impacted-agent-orange.pdf
27
https://www.internationalcrimesdatabase.org/Case/896/Vietnam-Association-for-Victims-of-Agent-Orange-v-Dow/

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Pamela McElwee

Pamela McElwee is Professor of Human Ecology at the School of Environmental and Biological Sciences at Rutgers University. She is trained as an interdisciplinary environmental scientist, with a joint Ph.D. in anthropology and forestry, and has conducted fieldwork in Southeast Asia for the last 25 years. Her first book, Forests are Gold: Trees, People and Environmental Rule in Vietnam won the EUROSEAS prize for best social science book on Southeast Asia, and she was awarded an Andrew Carnegie Fellowship in 2019 to work on an upcoming book about the environmental legacies of the Vietnam War.