But the Russian invasion of Ukraine has brought the underlying issue into real and sharper focus. This post considers the relevance of environmental harm in the international criminal law context.
The recent damage done to the Nova Kakhovka dam, and the resultant flooding and environmental impact, comes in addition to Russia’s occupation of and threats against the Zaporizhzhia nuclear power station and the Chernobyl site. Beyond the catastrophic environmental harm experienced and threatened in these cases, there are numerous instances of the release, or risked release, of pollution from Russia’s attacks on Ukraine. Reported examples include the shelling of the National Science Centre Kharkiv Institute of Physics and Technology Institute, where nuclear material was stored for research purposes, as well as bombing factories, warehouses and waste facilities including hazardous or toxic materials. Severe environmental harm has been risked, and suffered, in Ukraine as a result of the war.
Ukraine has itself adopted ecocide as a crime within its domestic criminal framework. Article 441 of the criminal code provides that “mass destruction of flora and fauna, poisoning of air or water resources, and also any other actions that may cause an environmental disaster, shall be punishable by imprisonment for a term of eight to fifteen years”. There are, however, clear practical issues with seeking to prosecute Russian perpetrators of ecocide in Ukraine’s domestic courts.
Although Ukraine is not a party to the Rome Statute, it has issued two declarations accepting the jurisdiction of the International Criminal Court in respect of crimes committed throughout the territory of Ukraine. The Prosecutor of the ICC currently has open an investigation which encompasses any past and present allegations of war crimes, crimes against humanity or genocide committed on any part of the territory of Ukraine by any person from 21 November 2013 onwards.
When drafting versions of what became the ICC Rome Statute, the International Law Commission included as proposed offences “acts causing serious damage to the environment” and later “wilful and severe damage to the environment”. No such provision was, however, included in the final version of the statute produced by the ILC. More recent attempts to amend the statute to add ecocide have failed.
There are, however, two existing provisions of the ICC Rome Statute which would allow instances of environmental damage to be prosecuted.
First, Article 8 on war crimes provides that the ICC “shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes”. Article 8 applies in relation to an international armed conflict, such as Russia’s invasion of Ukraine. The definition of war crimes includes “serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law” and specifically includes via Article 8(2)(b)(iv):
“Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated”.
Environmental damage therefore falls within the definition of war crimes in the ICC Rome Statute. The requirement for “widespread, long-term and severe damage to the natural environment” means that it is only the most serious instances of environmental damage which would qualify as war crimes. The requirement for severe damage would allow special weight to be given to damage done to particularly important or rare habitats or species.
It does seem likely that the facts of some at least of Russia’s attacks in Ukraine – including perhaps on the Nova Kakhovka dam – would qualify as an attack launched knowing that it would cause “widespread, long-term and severe damage to the natural environment”. Article 8(2)(b)(iv) is, however, subject to the proviso that the damage must be “clearly excessive in relation to the concrete and direct overall military advantage anticipated”, upon which reliance could potentially be sought to be placed in defence of any prosecution.
Secondly, Article 7 of the Rome Statute deals with crimes against humanity. Such crimes are not confined to international armed conflict. They are, however, crimes against humanity and not crimes against the environment as such.
Article 7(1)(k) provides that a crime against humanity includes, when knowingly committed “as part of a widespread or systematic attack directed against any civilian population”, other inhumane acts of a similar character to those set out in Article 7(1) which intentionally cause “great suffering, or serious injury to body or to mental or physical health”.
The required suffering need not be permanent and irremediable harm, but it must be harm that results in a grave and long-term disadvantage to a person’s ability to lead a normal and constructive life. It is possible to envisage that such suffering could be caused by means of damage to elements of the environment on which humans rely, such as release of polluting material to air, pollution of water supplies, destroying crops, flooding, and the like.
Article 7(2)(a) requires that, for an “attack directed against any civilian population”, there must be a course of conduct involving the multiple commission of acts pursuant to or in furtherance of a state or organizational policy to commit such attack. A crime against humanity can be committed pursuant to a plan of a corporation, and not only by a state pursuant to a state policy. Officers of such corporations could therefore be prosecuted for crimes against humanity.
In addition to these two Rome Statute offences, environmental damage can be taken into account in deciding whether a prosecution should be brought. The Office of the Prosecutor at the ICC published a policy paper in 2016 on case selection and prioritisation. This policy paper provided that, as part of assessing the gravity of alleged crimes to judge the most serious crimes deserving of prosecution, environmental factors would be considered. This included consideration of the manner of the commission of the crimes – including “the destruction of the environment or of protected objects” (para 40) – and also the impact of the crimes – including the “environmental damage inflicted on the affected communities” (para 41).
In this latter context, the policy paper said the OTP:
“will give particular consideration to prosecuting Rome Statute crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land”.
Even apart from the debate about ecocide, there are calls for the Rome Statute to be strengthened to provide more robust means to address the intentional targeting of the environment during armed conflict. But there are, in the current ICC Rome Statute, the means for action to be taken in international criminal law against those responsible for causing serious environmental damage during international armed conflict.
Richard Honey KC practises as a barrister in the fields of public law and environmental law, domestically and internationally. He was one of the judges of the International Bar Association International Criminal Court moot court competition held in the Hague in June 2023, which considered whether 'ecocide' was a crime against humanity under Article 7(1)(k) of the Rome Statute.
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