Broadening the Subject-Matter Jurisdiction of the International Criminal Court to Better Prosecute Twenty-First Century Harms

Broadening the Subject-Matter Jurisdiction of the International Criminal Court to Better Prosecute Twenty-First Century Harms

Elena Macomber

In 2002, the Rome Statute came into force and operations at the International Criminal Court (ICC) commenced.[1] With the twentieth-century backdrop of two world wars and massive ethnic violence, both individuals and states were motivated to create a permanent and universal body to prosecute systemically violent crimes against human beings.[2] While the Court has endured for over two decades, a notorious critique of the ICC is that member-state participation is far from universal, as powerful countries like the United States, Russia, and China are not parties to the Rome Statute.[3]

However, another notable jurisdictional shortcoming is the ICC’s prosecutable subject-matter. Under the Rome Statute, the ICC can prosecute four core crimes: genocide, crimes against humanity, war crimes, and crimes of aggression.[4] Other crimes, such as enslavement, torture, and rape, are prosecutable, but they must have occurred in the context of one of the four primary crimes.[5]

Genocide, crimes against humanity, war crimes, and crimes of aggression will continue to harm individuals around the world, but there are additional major threats to human rights in the twenty-first century that often go unpunished. Therefore, the prosecutable subject-matter at the ICC should be expanded to include additional contemporary transnational crimes, notably ecocide and human trafficking. National laws regulating these acts are often weak or non-existent, and no major international body exists to prosecute either one.[6] Furthermore, the devastating impacts and international scope of environmental destruction and human trafficking naturally coincide with the serious crimes the ICC already prosecutes.[7]

One potential area of expansion lies in criminalizing ecocide as a fifth core crime in the Rome Statute. Ecocide refers to “the destruction of large areas of the natural environment as a consequence of human activity.”[8] Instances of ecocide, as well as the general effects of climate change, disproportionately harm countries in the Global South.[9] Individuals in these communities, and their governments, often lack the resources to instigate legal action against foreign entities.[10] Environmental degradation by corporations, states, or other actors not only affects wildlife, but can also threaten internationally protected human rights such as the right to adequate food, housing, or the highest possible standard of physical health.[11]

For example, in 2015, two mining dams in Brazil collapsed and spilled 50 million cubic meters of toxic residue.[12] Nineteen individuals were killed, buildings were swept away, water was deemed untreatable for human consumption, and aquatic life was desecrated for 500 kilometers.[13] Due to the involvement of multinational companies in the collapse, victims of this disaster filed cases in national courts in Brazil, the U.S., the U.K., and Australia.[14]

If individuals instead have had the option to bring this case to the ICC, which still poses issues of accessibility, the case could have been prosecuted in one singular, specialized forum as opposed to four national courts with different laws.[15] Therefore, given the far reaching and detrimental effects of ecocide on communities who are frequently isolated from justice and remedy, amending the Rome Statute to include the crime of ecocide would ensure better recourse for human rights violations that often remain unpunished.

Another act that could be brought as a core crime in the Rome Statute is human trafficking. Human trafficking occurs around the world, affecting an estimated 40 million victims—the vast majority being women and children—and rakes in up to $150 billion annually.[16] Given vast global smuggling networks, the ICC is institutionally better structured to handle such complex international human rights cases than national courts.

For instance, in 2022, an Interpol-organized effort led to the arrest of over 300 traffickers and smugglers across Forty-four countries, involving almost 700 victims of human trafficking.[17] Efficiently prosecuting hundreds of traffickers in dozens of jurisdictions is a monumental challenge. Prosecuting such a case at the ICC, where the same legal standards and rules would be consistently applied by a specialized court, would create better outcomes for victims as opposed to the disparate, patchwork of cases that will likely unfold in multiple countries.

Beyond concerns of efficiency and uniformity, the pervasiveness and severity of human trafficking around the globe, coupled with the current lack of forums to efficiently penalize the act, merits its designation as a distinct core crime from crimes against humanity.[18] Such an amendment would also fall in line with the Court’s existing subject-matter jurisdiction, at least compared to ecocide.[19]

For decades, states have demonstrated a desire to better regulate environmental and human trafficking issues at the international level. Between the 1992 United Nations Framework on Climate Change, the 1997 Kyoto Protocol, the 2016 Paris Agreement, and the 2000 UN Trafficking Protocol (which has since been adopted by a whopping 178 countries), there is sufficient momentum among states to take international legal action to hold individuals accountable for more types of human rights violations.[20] It would therefore not be unprecedented to add ecocide and human trafficking as the fifth and sixth core crimes to the Rome Statute.

Given the lack of core environmental and human trafficking treaties and associated regulatory bodies, akin to the International Covenant on Civil and Political Rights and the Human Rights Committee, it would be more efficient to amend the existing Rome Statute than to create a new governing document and body dedicated to prosecuting ecocide and/or human trafficking.

Of course, treaty negotiations between dozens of states are always a protracted and contested process. The Court is dependent on state participation, and states are understandably hesitant to give up any sovereignty in exchange for potentially incurring liability at an international court.[21] However, despite the ICC’s rather young age, the crime of aggression was not one of the original crimes written in the Rome Statute​​—it was only added in 2010.[22] Thus, the institutional architecture of the Court is demonstrably not set in stone and possesses the capacity to further evolve.[23]

Amending the Rome Statute would signal to the international community the seriousness of ecocide and human trafficking.[24] One would hope that individuals would be deterred from committing such acts if the ICC could prosecute them. However, given the ICC’s short list of ten successful and collectively controversial convictions (all of them being individuals from African nations), expectations cannot be too high.[25] At the very least, the potential to prosecute more human rights abuses at the ICC would give victims an international legal forum that they currently lack.

The International Criminal Court is just over twenty years old, and its subject-matter jurisdiction should reflect our progressive recognition of human rights violations since 2002.[26] The very purpose of the Court is to prosecute serious threats to humanity, and its jurisdiction should consequently be expanded to better prosecute the swath of harms threatening human beings in the twenty-first century.


[1] See Dumitriţa Florea et al., The Premise of the Establishment of the International Criminal Court, 6 Eur. J.L. & Pub. Admin., 213, 217 (2019); Rome Statute of the International Criminal Court, July 17, 1998 2187 U.N.T.S. 90 [hereinafter Rome Statute].

[2] Florea, supra note 1, at 23, 215, 217.

[3] See Tijana Surlan, Expanding Jurisdiction of the International Criminal Courts: Coherence or Chaos 107 (2016); State Parties to the Rome Statute, Int’l Crim. Ct., (noting that the Rome Statute still maintains a membership of 123 members from all regions of the world).

[4] How the Court Works, Int’l Crim. Ct.,,Jurisdiction,jurisdiction%20of%20the%20Court%3B%20or.

[5] Rome Statute, supra note 1, art. 7, ¶¶ 1(c), (f), (g).

[6] See Romina Morello & Frederika Schweighoferova, Taking Down One of the World’s Largest and More Profitable Criminal Industries: Trafficking in Persons (Part I), Harv. Int’l L. J., (2021),; Molly Ma et al., Modernising the International Criminal Court; Crimes against the Environment, Trafficking in Human Beings, Hybrid Justice and Corporate Accountability 19 (2022).

[7] See Morello & Schweighoferova, supra note 6; Ma et al., supra note 6, at 23.

[8] Ecocide, Merriam Webster, (last visited Jan. 22, 2023).

[9] See Ma et al., supra note 6, at 19.

[10] See id. at 19.

[11] See id. at 20; International Covenant on Economic, Social and Cultural Rights art. 11, ¶1, art. 12, ¶1, Dec. 16, 1966, S. Exec. Doc. D. 95-2 (1978), 993 U.N.T.S. 3.

[12] BHP & Vale lawsuit (re dam collapse in Brazil, filed in Brazil), Bus. & Hum. Rts. Res. Ctr.,

[13] Bruce Douglas, Brazil’s slow-motion environmental catastrophe unfolds, Guardian (Nov. 13, 2015, 2:03 PM),

[14] BHP & Vale lawsuit (re dam collapse in Brazil, filed in Brazil), Bus. & Hum. Rts. Res. Ctr.,; BHP & Vale lawsuit (re dam collapse in Brazil, filed in the US), Bus. & Hum. Rts. Res. Ctr.,; BHP & Vale lawsuit (re dam collapse in Brazil, filed in the UK), Bus. & Hum. Rts. Res. Ctr.,; BHP & Vale lawsuit (re dam collapse in Brazil, filed in Australia), Bus. & Hum. Rts. Res. Ctr.,

[15] In this example, the ICC’s jurisdiction would likely have to be amended to allow the Court to prosecute corporations, a power it currently lacks. See Ma et al., supra note 6, at 25.

[16] See Morello & Schweighoferova, supra note 6.

[17] Operation Weka II: Nearly 700 human trafficking victims rescued, Interpol (June 29, 2022),

[18] See Morello & Schweighoferova, supra note 6.

[19] See id.

[20] See id. Dates reflect when these agreements were adopted, not when they went into force.

[21] See Mark D. Kielsgard, Reluctant Engagement: U.S. Policy and the International Criminal Court at 97 (2010) (ebook).

[22] See Rome Statute, supra note 1; The Crime of Aggression.

[23] See Surlan, supra note 3, at 111.

[24] See Ma et al., supra note 6, at 20.

[25] See Surlan, supra note 3, at 108.

[26] See Akila Radhakrishnan & Danielle Hites, Expanding Justice for Gender-Based Crimes with a Treaty on Crimes Against Humanity, Just Sec. (Sept. 29, 2021),