As Indigenous peoples face the deliberate destruction and loss of their ancestral lands—through deforestation, mining, oil exploitation, and other industrial activities that threaten their identity and, ultimately, their survival—it is essential to assess whether International Criminal Law (ICL) can provide effective protection to these peoples. In particular, this involves examining whether such acts could be classified as international crimes, such as crimes against humanity, genocide, or potentially ecocide, provided that the latter is formally recognized under the Statute of the International Criminal Court (ICC) and/or incorporated into the criminal laws of various States. If the current legal framework proves insufficient, what measures can be taken to strengthen the protection of Indigenous peoples?
This question is all the more pressing given that Indigenous peoples currently own, manage, use, or inhabit at least one-quarter of the world’s land, positioning them as vital stewards of biodiversity and key contributors in the fight against climate change. Yet, despite their essential role in safeguarding the planet, their accounts of systematic destruction, and even extermination, are often unheard, met with troubling silence from the international community (see here). Breaking this silence through legal accountability mechanisms is not only a matter of justice, but a crucial step toward the global protection of both environmental and human rights.
Before proceeding with the analysis, it is important to clarify that this discussion focuses exclusively on acts committed against Indigenous peoples during peacetime. In the context of armed conflict, the provisions on war crimes under Article 8 of the ICC Statute would also be applicable.
Crimes Against Humanity or Genocide?
At first glance, when the destruction or dispossession of Indigenous peoples’ lands results from State or corporate policies that undermine their well-being or prevent them from exercising their fundamental rights, it may seem that existing legal frameworks offer sufficient protection. Such actions could potentially be classified as crimes against humanity under Article 7 of the ICC Statute, which sanctions acts committed ‘as part of a widespread or systematic attack against any civilian population’ (see here, p. 524). Notably, these attacks need not be carried out solely in furtherance of state policy; they may also be perpetrated in alignment with the policies of other organized entities, such as corporations, provided these entities are capable of conducting widespread or systematic operations (see here, §12). Furthermore, crimes against humanity do not require the victims to belong to specific protected groups, making this category of crimes broadly applicable to Indigenous peoples.
Some may also argue that criminal acts committed against Indigenous peoples could constitute genocide under Article 6 of the ICC Statute, particularly when committed with the specific intent to destroy these communities as such. For instance, this could include targeting their fauna and flora, which are vital to their survival as distinct groups (see here, here, and here). However, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide limits its protections to ‘national, ethnic, racial, or religious groups,’ raising the delicate question of whether Indigenous peoples fall within these categories. The definition of Indigenous identity is complex and debated, partly because it was constructed by colonizers who often overlooked the rich diversity of native societies. As a result, there is no single, universally accepted Indigenous ethnicity, religion, or nationality (see here, p. 31, here, and here). Nevertheless, the United Nations offers a framework that recognizes Indigenous peoples as a distinct social and cultural group, defined by their ‘distinct languages, cultures, belief and knowledge system’ and strong collective ties to the lands and natural resources they have traditionally inhabited or from which they have been displaced. That being said, the Genocide Convention does not explicitly prohibit political or cultural genocide (for debates on the concept of ‘cultural genocide,’ see here, here, and here). While Indigenous communities could potentially be classified as ethnic groups—given their shared traditions, cultural practices, and histories intrinsically linked to their natural environment—this classification remains contentious. Therefore, despite the possibility of framing such crimes as genocide, significant legal and conceptual hurdles persist in securing robust protections for Indigenous peoples within this framework.
More importantly, it should be highlighted that international crimes, such as crimes against humanity and genocide, are primarily intended to protect individuals. For the destruction of Indigenous lands to fall within the scope of these crimes, the resulting harm must be sufficiently severe to threaten or destroy the community, either as part of a civilian population or as a protected group. The existing international legal system is fundamentally anthropocentric: it seeks to safeguard human beings, not the environmentin and of itself. As such, environmental destruction is only criminalized when it directly and significantly harms the people who rely on the land for their survival.
Ecocide?
This underscores the growing significance of the debate around ecocide—a concept that has recently gained renewed attention, especially after the formal proposal by three Pacific Island States—Vanuatu, Fiji, and Samoa—to include this crime within the jurisdiction of the ICC through a new Article 8ter. Many countries are also considering incorporating ecocide into their national criminal laws, with 16 already having done so. In essence, ecocide aims to criminalize ‘severe and either widespread or long-term damage to the environment.’ While these proposals have sparked controversy (see here and here), they offer potential new avenues for protecting Indigenous peoples (see here). If ecocide were recognized as an international crime, it could, in theory, prohibit the destruction or dispossession of ecosystems essential to the survival of these communities.
However, a closer look at the current proposal for Article 8ter reveals that ecocide primarily seeks to protect the environment for its intrinsic value (though it introduces a problematic anthropocentric element by weighing environmental damage against social or economic benefits). While ecocide aims to prevent large-scale harm to nature, it does not fully recognize the deep, symbiotic connection that Indigenous peoples have with their land, nor the ways in which they have shaped it. Over generations, Indigenous peoples have transformed their landscapes, creating unique ecosystems that are as integral to their identity as they are to the land itself (see here). While ecocide’s focus on environmental protection is important, it falls short of safeguarding the cultural and spiritual bonds that are fundamental to Indigenous life.
An Aggravated Form of Ecocide?
In summary, traditional international crimes, such as genocide and crimes against humanity, were not designed to protect the environment itself. Instead, they focus on safeguarding human populations. Indeed, these crimes can only be invoked when environmental destruction directly threatens the life or well-being of Indigenous peoples, and this destruction serves as a means to commit those crimes. Arguably, genocide, in particular, aims at protecting the identity of specific groups, which could make it more suitable for addressing the unique nature of environmental destruction faced by Indigenous peoples. However, this would require recognizing Indigenous peoples as ethnic groups—not only because of their shared cultural traditions and languages, but also due to their socio-cultural practices, which are deeply connected to their relationship with the natural world. While the current concept of ecocide is innovative and focuses on protecting the environment, it does not adequately address the unique human-environment relationships that are vital for the survival, identity, and cultural preservation of Indigenous communities and their distinct environments (see Szczupak, To Prevent the Fall of the Sky: Addressing Genocide Against Indigenous People in the 21st Century, LLM Thesis, Geneva Academy of International Humanitarian Law and Human Rights, 2024, p. 21, on file with the author).
This gap reveals a critical shortcoming in ICL, reflecting a long-standing Western dichotomy between humans and nature (see also here, p. 1502-1503). As Szczupak (supra, p. 21) aptly concludes, this body of international law, by maintaining separate legal categories—one primarily protecting humans (crimes against humanity and genocide) and the other primarily safeguarding the environment (ecocide)—fails to fully address the plight of Indigenous communities, whose identity and survival are inextricably linked to the land they inhabit. It also fails to capture the uniqueness of their environment—including its fauna and flora—which is profoundly shaped by the presence of these communities. When this vital relationship is disrupted, both the very existence of these communities and the distinctiveness of their environment are threatened (on the complex relationship between genocide and ecocide and the possibility of using ecocide as a method to commit genocide, see here and here). Yet, the current structure of ICL struggles to comprehensively address this complex reality. This situation serves as a crucial test for the ability of this branch of international law to evolve in a pluralistic and inclusive manner— moving beyond colonial frameworks (see here)—to more fully recognize and protect the interconnectedness of human and environmental rights (see here).
In this context, how can the protection of Indigenous territories and peoples be strengthened under ICL? Expanding the definitions of crimes against humanity and genocide—long established in the ICC Statute and international jurisprudence—to encompass the unique relationship between Indigenous peoples and their lands appears unlikely. Similarly, the creation of a new international crime—such as‘ethnocide’ (focusing on the protection of communities) or ‘terricide’ (emphasizing the protection of land and territory)— remains unlikely. In contrast, the emerging concept of ecocide offers a more viable legal pathway. Ongoing discussions surrounding its definition and potential adoption by the Assembly of States Parties to the ICC, as well as by individual States, offer a promising path forward.
When environmental destruction becomes so severe that it threatens the identity of a community whose way of life is intrinsically tied to the natural world—and when the loss of that community, in turn, endangers the environment—such harm could be considered an aggravated form of ecocide. To reflect this, a new paragraph 3 could be added to the proposed Article 8ter of the ICC Statute, stating: ‘Ecocide is aggravated when environmental damage significantly impairs the enjoyment of the fundamental rights of Indigenous peoples, as recognized in the United Nations Declaration on the Rights of Indigenous Peoples (13 September 2007).’ This provision could also be extended to other communities whose fundamental rights are deeply interconnected with their natural environments. Such an amendment would position ecocide as a critical legal mechanism for acknowledging and protecting the profound interdependence between certain communities and their ecosystems—ensuring that both receive tailored and enhanced safeguards under international law.
The Destruction of Indigenous Communities’ Landscapes, an Aggravated Form of Ecocide?
Written by Jérôme de Hemptinne and Helena SzczupakAs Indigenous peoples face the deliberate destruction and loss of their ancestral lands—through deforestation, mining, oil exploitation, and other industrial activities that threaten their identity and, ultimately, their survival—it is essential to assess whether International Criminal Law (ICL) can provide effective protection to these peoples. In particular, this involves examining whether such acts could be classified as international crimes, such as crimes against humanity, genocide, or potentially ecocide, provided that the latter is formally recognized under the Statute of the International Criminal Court (ICC) and/or incorporated into the criminal laws of various States. If the current legal framework proves insufficient, what measures can be taken to strengthen the protection of Indigenous peoples?
This question is all the more pressing given that Indigenous peoples currently own, manage, use, or inhabit at least one-quarter of the world’s land, positioning them as vital stewards of biodiversity and key contributors in the fight against climate change. Yet, despite their essential role in safeguarding the planet, their accounts of systematic destruction, and even extermination, are often unheard, met with troubling silence from the international community (see here). Breaking this silence through legal accountability mechanisms is not only a matter of justice, but a crucial step toward the global protection of both environmental and human rights.
Before proceeding with the analysis, it is important to clarify that this discussion focuses exclusively on acts committed against Indigenous peoples during peacetime. In the context of armed conflict, the provisions on war crimes under Article 8 of the ICC Statute would also be applicable.
Crimes Against Humanity or Genocide?
At first glance, when the destruction or dispossession of Indigenous peoples’ lands results from State or corporate policies that undermine their well-being or prevent them from exercising their fundamental rights, it may seem that existing legal frameworks offer sufficient protection. Such actions could potentially be classified as crimes against humanity under Article 7 of the ICC Statute, which sanctions acts committed ‘as part of a widespread or systematic attack against any civilian population’ (see here, p. 524). Notably, these attacks need not be carried out solely in furtherance of state policy; they may also be perpetrated in alignment with the policies of other organized entities, such as corporations, provided these entities are capable of conducting widespread or systematic operations (see here, §12). Furthermore, crimes against humanity do not require the victims to belong to specific protected groups, making this category of crimes broadly applicable to Indigenous peoples.
Some may also argue that criminal acts committed against Indigenous peoples could constitute genocide under Article 6 of the ICC Statute, particularly when committed with the specific intent to destroy these communities as such. For instance, this could include targeting their fauna and flora, which are vital to their survival as distinct groups (see here, here, and here). However, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide limits its protections to ‘national, ethnic, racial, or religious groups,’ raising the delicate question of whether Indigenous peoples fall within these categories. The definition of Indigenous identity is complex and debated, partly because it was constructed by colonizers who often overlooked the rich diversity of native societies. As a result, there is no single, universally accepted Indigenous ethnicity, religion, or nationality (see here, p. 31, here, and here). Nevertheless, the United Nations offers a framework that recognizes Indigenous peoples as a distinct social and cultural group, defined by their ‘distinct languages, cultures, belief and knowledge system’ and strong collective ties to the lands and natural resources they have traditionally inhabited or from which they have been displaced. That being said, the Genocide Convention does not explicitly prohibit political or cultural genocide (for debates on the concept of ‘cultural genocide,’ see here, here, and here). While Indigenous communities could potentially be classified as ethnic groups—given their shared traditions, cultural practices, and histories intrinsically linked to their natural environment—this classification remains contentious. Therefore, despite the possibility of framing such crimes as genocide, significant legal and conceptual hurdles persist in securing robust protections for Indigenous peoples within this framework.
More importantly, it should be highlighted that international crimes, such as crimes against humanity and genocide, are primarily intended to protect individuals. For the destruction of Indigenous lands to fall within the scope of these crimes, the resulting harm must be sufficiently severe to threaten or destroy the community, either as part of a civilian population or as a protected group. The existing international legal system is fundamentally anthropocentric: it seeks to safeguard human beings, not the environmentin and of itself. As such, environmental destruction is only criminalized when it directly and significantly harms the people who rely on the land for their survival.
Ecocide?
This underscores the growing significance of the debate around ecocide—a concept that has recently gained renewed attention, especially after the formal proposal by three Pacific Island States—Vanuatu, Fiji, and Samoa—to include this crime within the jurisdiction of the ICC through a new Article 8ter. Many countries are also considering incorporating ecocide into their national criminal laws, with 16 already having done so. In essence, ecocide aims to criminalize ‘severe and either widespread or long-term damage to the environment.’ While these proposals have sparked controversy (see here and here), they offer potential new avenues for protecting Indigenous peoples (see here). If ecocide were recognized as an international crime, it could, in theory, prohibit the destruction or dispossession of ecosystems essential to the survival of these communities.
However, a closer look at the current proposal for Article 8ter reveals that ecocide primarily seeks to protect the environment for its intrinsic value (though it introduces a problematic anthropocentric element by weighing environmental damage against social or economic benefits). While ecocide aims to prevent large-scale harm to nature, it does not fully recognize the deep, symbiotic connection that Indigenous peoples have with their land, nor the ways in which they have shaped it. Over generations, Indigenous peoples have transformed their landscapes, creating unique ecosystems that are as integral to their identity as they are to the land itself (see here). While ecocide’s focus on environmental protection is important, it falls short of safeguarding the cultural and spiritual bonds that are fundamental to Indigenous life.
An Aggravated Form of Ecocide?
In summary, traditional international crimes, such as genocide and crimes against humanity, were not designed to protect the environment itself. Instead, they focus on safeguarding human populations. Indeed, these crimes can only be invoked when environmental destruction directly threatens the life or well-being of Indigenous peoples, and this destruction serves as a means to commit those crimes. Arguably, genocide, in particular, aims at protecting the identity of specific groups, which could make it more suitable for addressing the unique nature of environmental destruction faced by Indigenous peoples. However, this would require recognizing Indigenous peoples as ethnic groups—not only because of their shared cultural traditions and languages, but also due to their socio-cultural practices, which are deeply connected to their relationship with the natural world. While the current concept of ecocide is innovative and focuses on protecting the environment, it does not adequately address the unique human-environment relationships that are vital for the survival, identity, and cultural preservation of Indigenous communities and their distinct environments (see Szczupak, To Prevent the Fall of the Sky: Addressing Genocide Against Indigenous People in the 21st Century, LLM Thesis, Geneva Academy of International Humanitarian Law and Human Rights, 2024, p. 21, on file with the author).
This gap reveals a critical shortcoming in ICL, reflecting a long-standing Western dichotomy between humans and nature (see also here, p. 1502-1503). As Szczupak (supra, p. 21) aptly concludes, this body of international law, by maintaining separate legal categories—one primarily protecting humans (crimes against humanity and genocide) and the other primarily safeguarding the environment (ecocide)—fails to fully address the plight of Indigenous communities, whose identity and survival are inextricably linked to the land they inhabit. It also fails to capture the uniqueness of their environment—including its fauna and flora—which is profoundly shaped by the presence of these communities. When this vital relationship is disrupted, both the very existence of these communities and the distinctiveness of their environment are threatened (on the complex relationship between genocide and ecocide and the possibility of using ecocide as a method to commit genocide, see here and here). Yet, the current structure of ICL struggles to comprehensively address this complex reality. This situation serves as a crucial test for the ability of this branch of international law to evolve in a pluralistic and inclusive manner— moving beyond colonial frameworks (see here)—to more fully recognize and protect the interconnectedness of human and environmental rights (see here).
In this context, how can the protection of Indigenous territories and peoples be strengthened under ICL? Expanding the definitions of crimes against humanity and genocide—long established in the ICC Statute and international jurisprudence—to encompass the unique relationship between Indigenous peoples and their lands appears unlikely. Similarly, the creation of a new international crime—such as‘ethnocide’ (focusing on the protection of communities) or ‘terricide’ (emphasizing the protection of land and territory)— remains unlikely. In contrast, the emerging concept of ecocide offers a more viable legal pathway. Ongoing discussions surrounding its definition and potential adoption by the Assembly of States Parties to the ICC, as well as by individual States, offer a promising path forward.
When environmental destruction becomes so severe that it threatens the identity of a community whose way of life is intrinsically tied to the natural world—and when the loss of that community, in turn, endangers the environment—such harm could be considered an aggravated form of ecocide. To reflect this, a new paragraph 3 could be added to the proposed Article 8ter of the ICC Statute, stating: ‘Ecocide is aggravated when environmental damage significantly impairs the enjoyment of the fundamental rights of Indigenous peoples, as recognized in the United Nations Declaration on the Rights of Indigenous Peoples (13 September 2007).’ This provision could also be extended to other communities whose fundamental rights are deeply interconnected with their natural environments. Such an amendment would position ecocide as a critical legal mechanism for acknowledging and protecting the profound interdependence between certain communities and their ecosystems—ensuring that both receive tailored and enhanced safeguards under international law.
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