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THE STORY BEFORE THE LAW

Before there were statutes, before there were courts, and before environmental harm became a legal category, there was memory.
Communities did not read the environment; they listened to it. They learned when rivers changed their tone, when winds carried warnings, when birds refused to return to certain trees. Law did not exist in books—it lived in stories told by elders, repeated under trees, beside fires, across generations.
Today, we speak of ecocide. But long before the word existed, the idea was already known to those who lived closest to land and water: that destroying the Earth is not only an environmental act, but a moral rupture.
It is from this memory that this inquiry begins.

THE MODERN INTERRUPTION — WHEN TECHNOLOGY ENTERS THE SKY

In our present time, humanity has begun to look upward to solve what it has broken below.
We now speak of Solar Radiation Management (SRM) and Carbon Dioxide Removal (CDR)- technologies that attempt to correct the climate by altering the atmosphere itself.
But in oral traditions, elders would ask a simple question:
“When you change the sky to fix the Earth, who asked the Earth if it agrees?”
SRM reflects sunlight into space. CDR pulls carbon from the air. These are not small acts - they are interventions in planetary memory.
And like all powerful actions, they do not remain confined. Winds carry consequences beyond borders. Monsoons shift. Oceans respond. Agriculture trembles.
In South Asia, where life depends on monsoon rhythm, the sky is not abstract - it is survival.

This paper examines the likelihood of criminal liability resulting from the development of climate engineering projects. These include two types of projects: Solar Radiation Management (SRM) and Carbon Dioxide Removal (CDR). It does so by examining these projects against both emerging ecocide frameworks and the Rome Statute of the International Criminal Court. The significance of this research lies in its analysis of an increasing number of geoengineering technologies being introduced into global climate governance systems at present. There is a significant risk associated with geoengineering of creating irreversible ecological damage and transboundary environmental damage; additionally, there exists a risk of disrupting monsoons and causing loss of biodiversity and humanitarian instability. Climate vulnerability has been exacerbated due to the effects of climate change on South Asia. As such, one of the primary objectives of this paper will be to identify a significant legal void in international criminal law. Presently, the Rome Statute contains no codification of a peacetime ecocide offence and limits the mechanism available to prosecute environmentally damaging acts committed during times other than armed conflict. Using a legal doctrinal methodology, this research will assess Article 31 defences, case law from the ICC, international environmental principles and recent developments in climate governance. Ultimately, it will assess whether necessity or duress may be able to serve as a defence for those engaging in geoengineering projects that have resulted in harm. The results indicate that Article 31 defences would likely provide limited immunity to individuals engaged in geoengineering because geoengineering carries with it a predictable level of risk, scientific uncertainty regarding the consequences of geoengineering, a disproportionate relationship between geoengineering and traditional approaches to emissions reductions and renewable energy transitions; and finally that geoengineering could be avoided through compliance with established laws and regulations.

As climate crises intensify across the globe, technology is being relied on more than ever before to counteract increased temperatures and ecological instabilities. Among the most contested of these technologies are Climate Engineering technologies, particularly SRM (Solar Radiation Management) and CDR (Carbon Dioxide Removal). While Climate Engineering technologies are increasingly framed as emergency climate solutions, they also raise serious legal, environmental and humanitarian implications due to the risk of irreparable transboundary ecological consequences, including disrupting monsoon cycles, degrading biodiversity, destabilising marine ecosystems and threatening food and water security. Given the heightened ecological vulnerability of populations in South Asia, combined with high population densities and dependency on climate-sensitive agricultural production, Climate engineering may exacerbate the adverse effects associated with large-scale climate engineering. As the potential for large-scale environmental damage resulting from Climate engineering becomes increasingly apparent, the lack of accountability mechanisms within international criminal law to hold individuals accountable for conducting environmental crimes committed during peacetime remains a major void. The Rome Statute limits environmental crime to armed conflict, thus creating a considerable legal void regarding environmentally destructive activity conducted during times of peace.

ECOCIDE IN INTERNATIONAL CRIMINAL LAW

Evolution of the Concept of Ecocide – A NAME FOR AN OLD WOUND

Ecocide is becoming increasingly prominent in international environmental law and jurisprudence. Originating in the context of environmental damage resulting from the use of chemical defoliants like Agent Orange during the Vietnam War (1960s), ecocide progressed over time from a political, moral term to an internationally recognised category of crimes. Since 2015, increased concern about climate change, loss of biodiversity, ocean degradation, deforestation, industrial pollution, etc., has contributed to a growing belief that the destructive capacity of severe environmental crimes can threaten not just ecosystems, but human life, public health, food security and ultimately international peace. As noted above, the Independent Expert Panel established by the Stop Ecocide Foundation in 2021 proposed defining ecocide as those unlawful or wanton acts committed with knowledge of a substantial likelihood of causing severe and either widespread or long-term damage to the environment. Importantly, this definition includes criminal law elements relevant to establishing criminal responsibility,  namely: intent; knowledge; recklessness; foreseeability; and unlawfulness, which expand the scope of international legal discussions relating to holding individuals accountable for their environmentally damaging actions. Additionally, the increasing frequency of natural disasters and ecological crises has increased global support for recognising ecocide as a separate international crime capable of addressing severe peacetime environmental damage.

Environmental Protection under the Rome Statute – LAW THAT HEARS THE EARTH ONLY IN WAR

Although environmental protection provisions exist under the Rome Statute, these are limited in both purpose and geographic applicability. Article 8(2)(b)(iv) specifically prohibits intentional attacks on civilian targets during international armed conflicts when it is known that the attack would result in widespread and long-term environmental damage. Notably, however, this provision does not apply to environmental harm occurring outside of armed conflict. e.g. through large-scale geoengineering projects. Furthermore, due to the cumulative nature of the requirements for proving "environmental damage" (i.e. the harm must be both widespread, long-term and severe), an extremely high burden of proof exists for prosecutors attempting to establish such crimes before international courts. Historically, international criminal institutions have focused almost entirely upon prosecuting direct violence against people rather than ecological harm, thus limiting the ability of prosecutors to prove issues related to causality, foreseeability and cross-border effects. Thus, currently, there exists a significant accountability deficit regarding the prosecution of severe environmental harm resulting from geoengineering technologies and similar forms of large-scale environmental intervention undertaken outside of war.

Emerging Recognition of Ecocide

As previously mentioned, recent international developments indicate growing momentum among advocates of environmental justice to include ecocide within international law. Advocates for greater international accountability regarding ecological destruction include several small island developing states such as Vanuatu and the Maldives, numerous environmental organisations, and some legal scholars. Recent climate-related disasters between 2022 and 2026,  e.g. flooding, glacier melting, biodiversity loss and extreme heat waves, provide additional evidence supporting the claim that environmental damage undermines intergenerational justice, human security and sustainable development.

CLIMATE ENGINEERING AND ENVIRONMENTAL HARM

WHEN HUMANITY TOUCHES THE ATMOSPHERE

Solar Radiation Management

Solar Radiation Management (SRM) is a technological approach toward "climate engineering" to reduce global temperature through reflection of incoming solar radiation back out into space. There are many approaches proposed under the umbrella of SRM, but one of the most widely studied proposals is stratospheric aerosol injection. This would involve injecting reflective sulphates into the upper atmosphere to create a similar effect on the planet's energy balance to large volcanic eruptions. Supporters claim SRM can quickly reduce global temperature increases and serve as an emergency intervention against climate change. Geoengineering using SRM has been very controversial due to many scientists' fears that altering atmospheric conditions will cause other types of negative environmental impacts. Assessments by scientists have identified numerous potential ecological hazards. These include disruption of precipitation regimes; weakening of monsoonal circulation; triggering regional droughts; contributing to ozone depletion; and disrupting atmospheric circulation patterns. South Asia presents an especially high risk due to its dependence on reliable monsoon rains for irrigation, water availability and food production. Limited changes in rainfall intensities could lead to agricultural failure, economic uncertainty, humanitarian crisis and ecological insecurity for tens of millions of people.

Carbon Dioxide Removal (CDR)

Carbon Dioxide Removal (CDR) technologies seek to reduce atmospheric greenhouse gas concentrations through methods such as direct air capture, afforestation, bioenergy with carbon capture and storage, and ocean fertilisation. The main difference is that while some of these methods (such as CDR) are seen as less "dangerous" in terms of their impact on the environment compared to other options (such as SRM), many of them still have potential negative impacts on ecosystems and governance systems. For example, one method called "ocean fertilisation", which aims to stimulate phytoplankton growth by adding nutrients to the oceans, could potentially cause disruptions in marine diversity, affect fishery stability, alter food chains in the oceans, decrease dissolved oxygen levels in the oceans and cause a range of other problems. The same is true for afforestation and large-scale BECCS projects. Afforestation has the potential to lead to land use conflict, threats to indigenous communities, and additional strain on water sources. Thus, even if an intervention intended as a means of mitigating global warming appears to be sustainable or environmentally friendly, it can still result in serious unintended negative environmental effects if implemented on a planet-wide scale.

Transboundary Environmental Harm

Climate engineering is a transnational issue as Climate engineering occurs outside of state boundaries, i.e., through actions taken by states, such as in the case of oceans and the atmosphere. A project initiated by one country will likely cause serious ecological effects on its neighbours. Because of this, there are significant legal issues about sovereignty, environmental consent, common ecological obligation, and liability for transnational harm. The principle of preventing injury from one's activities to other nations was established by the Trail Smelter Arbitration. These principles were further expressed in the Stockholm and Rio Declarations. Thus, if a nation undertakes extensive Climate engineering involving atmospheric or marine intervention and the ecological damage caused by those actions is reasonably foreseeable to extend past national boundaries, then the nation would likely have international responsibility.

THE DEFENCE OF NECESSITY –

Article 31 Defence Under the Rome Statute

Article 31 of the Rome Statute outlines several reasons why criminal liability might be excused in the case of the International Criminal Court (ICC). They include mental incapacity, intoxication, self-defence, duress, necessity, and mistake. The necessity defence has particular relevance in the context of climate engineering controversies because Article 31 (1)(d) provides that when a person conducts himself with the intent to avoid impending death or serious bodily injury, provided that he did so reasonably and without intent to cause greater harm, such conduct will constitute necessity and duress. States and corporations involved in solar radiation management (SRM), carbon dioxide removal (CDR), etc., could use escalating global climate emergencies to support their position that they had no alternative to taking action on a large scale. While Article 31 was created for emergencies as opposed to deliberate actions taken by individuals or organisations at the planetary level, there is considerable legal controversy regarding whether this provision can apply to geoengineering.

International criminal jurisdiction construes necessity defences very strictly. As described in Prosecutor v Erdemovic, the ICTY stressed that even though extreme pressure may be applied to an individual in order to commit a serious violation of international law, it will not necessarily serve as a basis for criminal exoneration. It requires: 1) Immediacy; 2) Absence of Alternatives; 3) The necessity of the act; and 4) Proportionality between the amount of harm caused and the harm being avoided. This means that climate engineering would have difficulty meeting these requirements since most climate engineering decision-making is done in anticipation of future problems, and includes many factors of science-related uncertainty which may lead to unintended environmental consequences across borders. International environmental law follows a similarly strict interpretation. In the Gabčíkovo-Nagymaros Project Case, the ICJ recognised environmental protection as one of the essential interests of states; however, it emphasised that necessity only applies when danger is grave and imminent, reasonable alternatives are not available, and the conduct does not affect the essential interests of other states. Thus, climate engineering projects that potentially damage monsoons, agriculture, biodiversity, and marine ecosystems face significant challenges satisfying each of those conditions. Immediacy is likely the most difficult condition to meet. Generally, climate change results from cumulative and long-term developments rather than sudden emergencies or attacks. Additionally, while geoengineering may provide an option for addressing climate change, there are many additional lawful options to reduce emissions, restore ecosystems, implement adaptation strategies, and engage in international climate cooperation. Therefore, proportionality is also difficult for geoengineering because it may result in predictable impacts on food availability, ecological instability, water availability, displacement and migration of vulnerable populations in South Asia. Additionally, the Precautionary Principle undermines arguments based on necessity. Under Principle 15 of the Rio Declaration and the jurisprudence of South Asian courts such as Vellore Citizens' Welfare Forum and AP Pollution Control Board v. M.V. Nayudu, if there is scientific uncertainty about potential adverse effects resulting from environmental development or exploitation, then states and organisations have obligations to take all necessary steps to prevent irreversible environmental degradation. In essence, international criminal law prefers "ex ante" precautionary principles over "ex post" justifications for environmentally risky experiments, recognising that reckless experimentation may jeopardise both intergenerational justice, human rights, and ecological sustainability. For people living in South Asia, permitting necessity defences could provide an incentive for states and corporations to bear disproportionate environmental burdens relative to their contribution levels to greenhouse gases.

South Asian Perspective: Climate Vulnerability and Environmental Justice – THE REGION THAT LISTENS TO THE MONSOON

Regional Vulnerability

Regional climate vulnerability is an important concern for the South Asian region; countries such as India, Bangladesh, Pakistan, Sri Lanka, Nepal, and the Maldives have the potential to be severely impacted by a variety of environmental changes due to climate change. Glacier melting and resulting freshwater availability, rising sea levels leading to increased coastal erosion and loss of land area, the increasing frequency and severity of cyclonic storms and associated flooding, frequent droughts with their impact on agricultural productivity, and extreme heat waves all pose significant risks to these countries. Furthermore, there is high population density across much of this region, low average income per capita, large amounts of agriculture that rely on climate-sensitive weather patterns, and inadequate infrastructure to adapt to these changing climate conditions. Geoengineering technologies, specifically solar radiation management, may potentially cause significant disruptions to the global atmospheric circulation system and thus affect regional economies and food security based on seasonal rainfall. Thus, even relatively small disruptions to seasonal rainfall can result in catastrophic humanitarian emergencies affecting tens of millions of people. Therefore, geoengineering presents several serious issues related to sovereign equality, transboundary environmental responsibilities, and ecological security throughout the South Asian region.

Monsoon dependency and risk to agriculture

The majority of the South Asian population still relies upon agriculture as its main source of employment and continues to be highly reliant upon predictable monsoon rains to ensure adequate food supplies. Monsoon rains provide critical direct inputs into irrigation, agricultural production, fishing industry activities, groundwater recharge, and livelihoods for rural communities. Assessments conducted by scientists indicate that SRM will lead to weakened monsoons, altered rainfall patterns throughout the region, and diminished agricultural yields. Agriculture-based failures can lead to famine conditions, displacement of communities, economic instability, and other types of negative social and economic impacts. The distribution of harm is expected to be uneven. Advanced technology-using states may benefit temporarily from geoengineering applications, whereas many South Asian populations will endure disproportionate environmental damage. This type of inequitable distribution of harm reduces support for climate engineering based on the doctrine of necessity or emergency action to protect against climate change.

Climate justice and global inequality

Geoengineering creates additional challenges for climate justice and past responsibility for carbon emissions. As noted earlier, the Principle of Common But Differentiated Responsibility recognises that developed countries have a greater obligation than developing countries for past greenhouse gas emissions. From a South Asian perspective, geoengineering unilaterally will create similar environmental inequalities/technological domination. Large state/corporations will determine when geoengineering will occur, while smaller South Asian countries will experience adverse ecological effects. Procedural justice, democratic participation, and sovereignty are undermined by unilateral geoengineering application decisions made without input from affected regions that will experience adverse climate-related outcomes from planetary-scale geoengineering actions.

Human rights implications

Geoengineering could also infringe on basic human rights. For example, harmful geoengineering could deprive individuals of their right to life, access to safe food/water resources, physical/mental well-being, and the right to a healthy environment. Recent trends in environmental law in South Asia recognise ecology as an aspect of fundamental rights. In Leghari v Federation of Pakistan, climate change was recognised as an issue under the Constitution that relates to human dignity and environmental justice. Similar expansion of constitutional protections under Article 21 of the Indian Constitution (relating to ecological balance/sustainable development) reflects an increase in recognition of ecological disruptions caused by geoengineering as being subject to both domestic judicial review (for violations of fundamental rights) and evolving forms of international environmental accountability.

Sustainability Development Goals and Ecocide Liability –

MODERN LAW LISTENING TO OLD WISDOM

Geoengineering and the Sustainable Development Goals (SDGs) exemplify the increasing interdependency of climate regulation, environmental protection, and accountability via international criminal law with regard to the goal of achieving SDG 13 (Climate Action). As part of the initiative to support SDG 13's objective to take urgent and decisive actions to limit climate change and increase the ability of countries to adapt to its impacts through strengthening resilience and enhancing the implementation of the UNFCCC at the national, regional and local levels, the development and deployment of climate engineering technologies, including solar radiation management (SRM) and carbon dioxide removal (CDR), can pose significant environmental hazards. If deployed without proper safeguards or monitoring mechanisms, SRM and CDR technologies could have unforeseen, potentially disastrous environmental effects. Amongst them are destabilising the atmosphere; disrupting precipitation systems; creating long-term ecological uncertainty; and ultimately undermining the fundamental goals of sustainable climate policy-making. Therefore, geoengineering cannot be viewed simply as a technological intervention. Rather, it should be held to strict legal standards to ensure that any environmental risk generated is proportional, scientifically justifiable, and will not unfairly disadvantage certain groups of people, especially those living in climate-sensitive regions like South Asia. Further evidence of the connection between SDG 14 (Life Below Water) and SDG 15 (Life on Land) is based on an analysis of what kind of environmental damage large-scale geoengineering projects will cause. The geoengineering projects that aim at manipulating marine environments for a global climate response could have serious effects on marine ecosystems. Geoengineering projects may disrupt natural nutrient cycles, harm commercial fisheries and affect the livelihoods of communities dependent on marine resources. In addition, all of these potential outcomes would be adverse to the conservation goals established under SDG 14. Similarly, terrestrial geoengineering projects (including afforestation programs and land-based bioenergy programs to increase carbon capture through sequestration) can lead to forest destruction, fragmentation of habitats, provide habitat for non-native species, and potentially destabilise local ecological systems. All of these factors contribute to undermining the objectives of SDG 15. Together, they demonstrate that geoengineering technology has the potential to erode global conservation efforts and jeopardise long-term sustainability in both terrestrial and aquatic ecosystems unless properly regulated.

In addition to these dimensions, SDG 16,  Peace, Justice and Strong Institutions and SDG 17, Partnerships for the Goals, also identify additional governance and accountability aspects of geoengineering. For example, SDG 16 stresses the need for institutions and justice. However, with no clear criminal responsibility under international law for environmental damage during peacetime, there will be a governance vacuum which could create a situation whereby states or corporations can claim Article 31 defences without scrutiny. Therefore, in terms of environmental impunity and lack of confidence in international legal systems, it is vital to recognise ecocide as an international crime. Furthermore, SDG 17 recognises that geoengineering, due to its transboundary nature, cannot be governed solely through unilateral action. Geoengineering therefore needs to be governed internationally through structured collaboration based upon scientific transparency, inclusive consultations and equitable participation. The last point is particularly important for South Asia given the high degree of vulnerability to disruption in the monsoons experienced by the populations of this region and their disproportionate climate risk exposure relative to their historic level of greenhouse gas emissions. Consequently, there is a compelling case for developing justice-oriented and cooperative frameworks for global governance relating to climate.

INSTITUTIONAL LIMITATIONS OF THE INTERNATIONAL CRIMINAL COURT

Jurisdictional Limitations

There are several jurisdictional limitations on how well the International Criminal Court (ICC) can address the issue of environmental destruction caused by geoengineering, particularly related to climate engineering. The Rome Statute of 1998 primarily established four categories of international crimes: genocide, crimes against humanity, war crimes, and aggression and did so without creating a separate category for environmental destruction. While it is true that Article 8(2)(b)(iv) recognises environmental damage occurring during wartime as part of the definition of war crimes, there is no specific offence defined in the Rome Statute that addresses the severe environmental harm resulting from peacetime activities. Determining legal liability for geoengineering will also pose numerous evidentiary hurdles, since the processes involved in geoengineering operate in complex systems in the atmosphere over vast areas and time scales. As such, demonstrating a causal link between geoengineering and droughts, biodiversity collapses, disruptions to monsoons, or other types of food insecurity would require substantial amounts of scientific research and modelling to establish.

Corporate Liability Deficiencies

Given that geoengineering is typically conducted by multinationals, defence contractors, scientific organisations, and public-private partnerships, the ICC's focus on individual criminal responsibility creates a major accountability deficiency regarding the role of these entities in funding or facilitating the conduct of environmentally damaging geoengineering activities. In addition to this deficiency, geographically dispersed corporate structures and cross-border financing schemes create significant obstacles to attributing responsibility.

Ex Post vs. Preventive Regulation

International criminal law is generally used as an ex post facto method of regulation. However, given the nature of climate engineering, i.e., irreversible damage could occur before judicial proceedings, the need for ex ante regulatory approaches is evident. Therefore, reliance solely on international criminal law for regulating large-scale planetary environmental alteration is not feasible.

WHEN LAW MUST LEARN FROM MEMORY

Proposed Governance Reform and Legal Recommendations

Recognising "ecocide" as an independent international fifth crime in accordance with the Rome Statute provisions would increase deterrents, diminish accountability deficiencies, enhance environmental protection and foster greater climate justice. If adopted as a new provision in the Rome Statute, any ecocide provision should include definitions and standards for determining what constitutes widespread, long-term environmental harm, recklessness, foreseeability, causation, and corporate participation. Additionally, Article 31 defences for necessity should be strictly construed because geoengineering involves enormous risk of catastrophic ecological effects which rarely meet the principles of proportionality, precaution, or absence of alternatives. Furthermore, an international agreement establishing a framework for geoengineering governance should include mandatory Environmental Impact Assessments, Scientific Transparency Obligations, Transboundary Consultation Processes, Mechanisms for Liability and Independent Oversight Bodies. From a South Asia Perspective, Regional Cooperation is important due to the fact that geoengineering has potentially disproportionate effects on South Asian countries depending on their dependence on monsoons and vulnerable populations in India, Bangladesh, Pakistan, Nepal, Sri Lanka and the Maldives. Therefore, South Asian States should have institutional mechanisms to monitor geoengineering activity; assess its environmental impact; develop contingency plans and coordinate emergency responses when necessary. A global climate engineering liability fund should similarly compensate those communities harmed by geoengineering.

CRITICAL ASSESSMENT

In general terms, the relationship between geoengineering and international criminal law reflects a broader conflict between technological interventionism and environmental prudence. Geoengineering advocates believe that the acceleration of climate change might warrant extraordinary technological action to combat climate change; however, this type of reasoning might ultimately lead to justifying risky experimentation on planetary systems regardless of the level of scientific certainty surrounding such actions and their potentially irreparable consequences. Necessity and duress defences in Article 31 do not lend themselves well to addressing climate engineering problems because these doctrines were created for addressing acute emergencies and not large-scale environmental alterations across many regions and future generations. Climate change does not fit neatly into the traditional elements required to satisfy international criminal law, i.e., immediacy; moreover, lawful alternative methods exist to respond to climate change, such as transitioning to renewable energy sources; reducing greenhouse gas emissions; restoring ecosystems; and engaging in international cooperative efforts to address climate change. Unilateral geoengineering poses additional concerns for South Asians relative to environmental colonialism; procedural inequalities; and inequitable distribution of ecological burdens because populations least responsible for generating greenhouse gases may experience the greatest negative environmental consequences.

MEMORY LAW AND THE FUTURE

Climate-engineering and its many forms of technology represent some of the greatest challenges in recent times for international law, and specifically because it represents a combination of the urgency of climate issues and the potentially permanent or at least very long-term effects on ecosystems that could be caused by geoengineering. Geoengineering has been suggested as an emergency climate solution; however, even though geoengineering can prevent catastrophic climate impacts such as global warming, large-scale geoengineering projects (such as SRM & CDR) may cause serious transboundary effects such as disrupting monsoons, causing biodiversity loss, degrading marine ecosystems, and creating humanitarian crises. The paper will show that Article 31 defences under the Rome Statute do not have the potential to provide widespread immunity due to the narrow interpretations of necessity and duress in international criminal law, which require imminence, proportionality, and lack of alternative actions. Furthermore, the paper will identify a significant accountability gap resulting from the fact that there is no internationally codified crime of peacetime ecocide contained in the Rome Statute. Ultimately, effective management of geoengineering must include: caution, environmental justice, democratic participation, ecological sustainability, and increased accountability of international organisations so that the world can protect the environmentally vulnerable peoples and our common environmental future.

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  35. INDIA CONST. art. 21.
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  38. G.A. Res. 70/1, Transforming Our World: The 2030 Agenda for Sustainable Development Goal 16 (Sept. 25, 2015), United Nations SDG 16 Page
  39. Ibid 
  40. United Nations, Sustainable Development Goals: 17 Goals to Transform Our World (2015), United Nations SDGs Exhibit Page
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  44. Ibid
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