Lawyers, scholars, and activists have long sought to incorporate ecocide into the Rome Statute of the International Criminal Court to address corporate and governmental impunity for massive and severe ecological damage, including the harms caused by climate change. This Article uses the framework of racial capitalism to examine and critique the proposed criminalization of ecocide. Coined by South African scholars and activists and refined by political theorist Cedric Robinson, the theory of racial capitalism offers valuable insights on the root causes of the climate crisis and the manifold injustices it inflicts on marginalized states and peoples. While most discussions of climate justice focus on the disproportionate impacts of climate change on those who contributed least to the problem, this Article examines the processes through which racial capitalism plunders the land, labor, and natural wealth of states and peoples racialized as inferior to generate profits for global elites. These processes immiserate most of the world’s population, subject marginalized communities to the “slow violence” of polluting industry, destabilize the planet’s ecosystems, generate prodigious quantities of greenhouse gases, and deprive subaltern populations of the resources needed to adapt to climate change and other socio-ecological crises. In other words, the fossil fuelbased capitalist world economy that caused the climate crisis was sparked and sustained by slavery, colonialism, and neocolonialism (including its latest incarnation, neoliberalism). The Article highlights two core features of racial capitalism: its racial stratification of humans for the purpose of profit making and its eco-destructive logic. It explains international law’s complicity with these core features through legal doctrines that construct nature as property and justify the subordination of non-European peoples by portraying them as the backward and barbaric “other” who must be civilized through continuous economic, political, and military interventions. Applying these insights to the proposal to codify ecocide, the Article concludes that the proposed definition of ecocide may reinforce rather than subvert racial capitalism’s core features by (1) focusing on individual culpability and spectacular acts of ecological destruction while obscuring racial capitalism’s inherently predatory, eco-destructive logic; (2) perpetuating international law’s civilizing mission through the selective prosecution of the racialized “other”; and (3) devaluing nature, subaltern communities, and world views antithetical to racial capitalism through the incorporation of cost-benefit analysis into the definition of ecocide. Recognizing the interconnectedness of slavery, colonialism, neocolonialism, and climate change, the Article calls for reparative and restorative forms of justice instead of punitive approaches that scapegoat individuals for the structural ills of racial capitalism.
