Twenty-two months of Russian aggression in Ukraine has devastated the country, its people, and not least its natural environment. While the environment has historically been the silent victim of conflict, accountability efforts in Ukraine are placing it center-stage, and pioneering the use of neglected international humanitarian law.
By the end of 2022, President Volodymyr Zelenskyy summarized the war’s environmental costs: “Dozens of rivers are polluted, hundreds of coal mines are flooded, dozens of the most dangerous enterprises, including chemical ones have been destroyed by Russian strikes. All this will have a direct impact on millions of people,” referring to leaks of hazardous chemicals and contamination from mines and munitions. “You cannot rebuild the destroyed nature, just as you cannot restore the destroyed lives,” he added. Near the end of 2023, the Ukrainian Office of the Prosecutor General (OPG), with which all three authors are connected, identified a number of targeted attacks as issues of potentially grave environmental concern: attacks on objects containing dangerous forces, such as dams and nuclear facilities; on oil depots and other energy facilities; on special-value territories such as protected nature preserves, and on the country’s territorial waters. The Rapid Environmental Assessment of the destruction of the Kakhovka Dam carried out by the United Nations Environment Program in October 2023 concluded, “without reservation … the Kakhovka dam breach is a far-reaching environmental disaster; the scale of which might not be clear for years or even decades to come.” All told, the environmental consequences of hostilities have been extremely severe—and sometimes irreversible.
Prosecutions for deliberate or reckless environmental destruction have been notably absent from war crimes trials to date. In Ukraine, this is about to change. Kyiv views the destruction of its natural resources as a deliberate part of the Russian aggression, intended to undermine its economy, public health and national identity. With an understanding of the deep interrelationship between humans and the wider ecosystem, Ukrainian authorities are including crimes against the environment in their high-level accountability strategies. In March of this year, the first United for Justice conference in Lviv devoted space to aggression, war crimes, crimes against humanity and crimes against the environment. Last month, the second high-level conference focused – over a two day period – purely on environmental crimes. The OPG has identified more than 250 incidents that may constitute environmental war crimes. Despite the dearth of prosecutions for environmental damage to date, international criminal law does provide the means for holding perpetrators of these environmental war crimes to account.
The Law
The want of prosecutions of conflict-related environmental harm in national or international courts is not due to a gap in the law. In 1977, the first Additional Protocol to the Geneva Conventions (API) articulated the basic rule prohibiting the employment of methods or means of warfare “which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment” in its article 35. As the International Committee of the Red Cross (ICRC) made clear in its “Guidelines for Military Manuals and Instructions on the Protection of the Environment in Times of Armed Conflict”, updated and renamed in 2020 (“ICRC Guidelines”), however, protection of the environment under international humanitarian law (IHL) extends far beyond this specific rule, not least because the environment is generally agreed to be civilian in character.
The ICRC Guidelines neatly conceptualize IHL protection of the environment into three categories: specific protection of the environment (such as the prohibition on causing widespread, long-term and severe damage), general protection of the environment (or rules which can protect the environment without this being their specific purpose), and protection afforded by rules on particular weapons. The second category, general protection of the environment, is by far the most relevant to Ukraine. It includes protection of the environment as civilian in character by the principles of distinction, proportionality, and precautions; protection via rules relating to other specific objects (objects indispensable to the survival of the civilian population, works and installations containing dangerous forces, and cultural property); and protection as a civilian object by the rules on enemy property (pillage, expropriation, and the like).
Violations of at least some of these IHL prohibitions amount to war crimes, either under the Rome Statute of the International Criminal Court (ICC), or as serious violations of customary or other applicable conventional international humanitarian law.
Prosecuting Environmental War Crimes in Ukraine
While Ukraine is not party to the Rome Statute, it has accepted the jurisdiction of the ICC over the current situation, allowing ICC prosecutors to investigate. But in domestic Ukrainian courts, prosecutors will not be applying the Rome Statute per se (although it can be drawn upon as evidence of customary international law). Rather, war crimes will be prosecuted under article 438 of the Ukrainian Criminal Code, “violations of rules of warfare”, which covers serious violations of customary or applicable conventional IHL, such as the Geneva Conventions and Additional Protocol I, as well as weapons treaties, such as the Chemical Weapons Convention.
The majority of conflict-related environmental damage is likely to be prosecuted under general provisions protecting civilian objects or enemy property. The attacks on nature preserves and dams and the widespread pollution of territorial waters and agricultural land identified by the OPG could be prosecuted as prohibited attacks on civilian objects, disproportionate or indiscriminate attacks, wanton destruction of property or intentional starvation of civilians, for example.
In the most severe cases – such as the Kakhovka Dam – prosecutors might decide to use specific protections and charge violations of Additional Protocol I’s basic rule prohibiting “methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.” Although violation of this rule is not listed as a grave breach in API, a case can be made that as an indisputably serious violation of IHL – the ICRC considers it to be an absolute prohibition – it does constitute a war crime under the Tadic test, and may be prosecuted under article 438 of the Ukrainian Criminal Code.
Specific protection under the Rome Statute – the effect of article 8(2)(b)(iv)
While there is a lack of state practice in prosecuting widespread, long-term and severe damage, this should be seen in the context of the general failure to prosecute conflict-related environmental harm. More problematic, perhaps, is the formulation of the specific Rome Statute environmental war crime, which appears to have added a proportionality test that does not exist in article 35 AP1:
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.
This Rome Statute crime – article 8(2)(b)(iv) – incorporates the prohibition of widespread, long-term and severe damage to the environment into the war crime of excessive incidental death, injury, or damage, essentially merging ICRC category I and II protections. Environmental advocates and legal scholars have lamented the difficulty of establishing not only the high threshold of damage, but also that it be “clearly excessive in relation to the concrete and direct overall military advantage anticipated”, and the addition of a proportionality test to the otherwise absolute prohibition on widespread, long-term and severe damage has been identified, by Cassese and others, as a “huge leap backwards” in environmental protection. Although Ukrainian prosecutors are not bound by the Rome Statute per se, article 8(2)(b)(iv) may nonetheless be influential as evidence of custom.
General protection under the Rome Statute
In fact, the vast majority of environmental war crimes can be prosecuted under general provisions protecting civilian objects or enemy property. Among these are the second prong of article 8(2)(b)(iv), which could be used at the ICC to prosecute disproportionate environmental harm. An attack launched in the knowledge that it will cause damage to the environment could appropriately be evaluated to see whether it was proportionate to anticipated military advantage. Where the concrete and direct overall military advantage anticipated is low, the scope of permissible environmental harm will be correspondingly smaller, and certainly below the widespread, long-term and severe threshold.
However, ICC prosecutors and judges may be likely to focus on the third prong of 8(2)(b)(iv) because it specifically mentions the environment, to the exclusion also of other Rome Statute war crimes that might apply, such as destruction of property under 8(2)(a)(iv); directly attacking civilian objects under 8(2)(b)(ii); pillage, under 8(2)(b)(xvi), or starving civilians by depriving them of objects indispensable to their survival under 8(2)(b)(xxv). This would be a missed opportunity.
Conclusion
The focus of Ukrainian Prosecutor General Andriy Kostin on environmental war crimes may mark a turning point in accountability for destruction of the environment in armed conflict. By showing how existing IHL protects the natural environment, Ukrainian courts can build awareness as well as jurisprudence that can be applied elsewhere – perhaps even by the International Criminal Court in its investigation of the Ukraine situation. Through dedicated attention to the ecosystem damage wreaked by the full-scale Russian invasion, the Ukrainian authorities may succeed in breathing new life into existing but unused legal protections, and forging an environmental legacy from the tragedy of this conflict.