The dam has burst: How Russia’s war on Ukraine could make ecocide an international crime

For many decades, proponents have failed to secure the adoption of ecocide as a crime. The circumstances of Russia’s war on Ukraine create momentum for a breakthrough

(230612) — KHERSON, June 12, 2023 (Xinhua) — This photo taken on June 10, 2023 shows a flooded area in the Kherson region. The Kakhovka hydroelectric power plant was destroyed on Tuesday, causing a decrease of the dam water level and massive flooding in nearby areas. (Photo by Peter Druk/Xinhua)
(230612) -KHERSON, June 12, 2023 (Xinhua) -This photo taken on June 10, 2023 shows a flooded area in the Kherson region. The Kakhovka hydroelectric power plant was destroyed on Tuesday
Image by picture alliance / Xinhua News Agency | Peter Druk
©

Ukraine is Europe’s most biodiverse country – making the recent collapse of its Kakhovka dam especially detrimental to efforts to preserve the environment amid Russia’s war on the country. Beyond its human cost, the tragedy is causing considerable damage to biosystems around the dam. It has destroyed irrigation systems and farmlands, and is helping spread animal disease. President Volodymyr Zelensky described the Russian attack on the dam as “ecocide.”

Over the last year, Ukraine has suffered relentless environmental destruction: from explosions and fires ignited by more than 8,000 Russian missiles, to the debris left by 3,000 Russian tanks littering the land, and more. At risk are 160 nature reserves, while nearly 1,500 plant and animal species are threatened by extinction. The latest estimate of damage to land, water, and air reaches $53 billion, a figure that Ukraine is demanding as reparations from Russia. Following the dam attack, Zelensky warned this bill will now come in significantly higher.

Russian crimes in this war are already facing deep scrutiny: the International Criminal Court has issued an arrest warrant for Vladimir Putin over the deportation of Ukrainian children. And, as Zelensky’s words show, Russia’s actions have now drawn fresh attention to the question of ecocide. The ICC could play a key role here – but first it needs to adopt ecocide as a criminal offence under international law. Momentum to take just such a step could be growing.

In March 2023, the European Parliament voted in support of ecocide becoming EU law; and shortly afterwards the European Economic and Social Committee began an initiative on ecocide, in which it singled out Russian actions in Ukraine. Organisations such as Stop Ecocide International argue that ecocide should be enshrined as a crime in the Rome Statute of the ICC. At the moment, the ICC’s jurisdiction is limited to four “most serious crimes of concern to the international community as a whole”: genocide, crimes against humanity, war crimes, and the crime of aggression. Ecocide would be the fifth serious crime.

The idea of ecocide is not new. International environmental lawyers and activists have sought to define and outlaw it for decades. The term was coined in 1970 and in 1972 the Swedish prime minister, Olof Palme, used it in reference to the Vietnam war. Decades later, in June 2021, the Independent Expert Panel (IEP) convened by Stop Ecocide International drafted an amendment to the Rome Statute which would include the crime of ecocide.

There are obstacles. Criminalising environmental harm is surely a complex task, even more so on the international level. But so too was the task of criminalising genocide. Indeed, “ecocide” evokes “genocide”, and in prosecuting the latter a particular difficulty has been how to prove a perpetrator’s intention to destroy. However, the definition proposed by the IEP does not require the same intentionality for ecocide. Rather, the crime would constitute “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts”. Proving knowledge is easier than proving intentionality.

In addition, since its establishment in 2002, the ICC has been subject to relentless criticism: that it has too little or too much authority, that it is biased, or even that its existence prolongs conflicts. Voices suggest the court is in crisis and that incorporating a new crime would overwhelm the system. Moreover, changing the Rome Statute will require support from states beyond the West. While European campaigners and institutions have led the way on codifying ecocide, Western figures have recognised the need for the United Nations to act. Following the attack on Kakhovka dam, the chair of the US foreign relations committee, Senator Bob Menendez, argued “we have to recognise that this is not only a war crime, but it is an environmental crime and the United Nations has to take up the action”. Indeed, this debate should now take place at the UN level, and a Review Conference on the Rome Statute should convene with a view to the incorporation of ecocide.

In the long campaign to recognise ecocide, the fact that this war is taking place in Ukraine is critical

But in the long campaign to recognise ecocide, the fact that this war is taking place in Ukraine is critical. The Ukrainian authorities actively share with the rest of the world what Russia has done to the environment, understandably, as part of what is a life and death mission to keep the international community engaged and mobilised against Russia. But by arguing for the recognition of ecocide, Ukraine is also doing a great service for the planet.

In contrast, other recent wars, such as in Syria or Yemen, have also seen great environmental damage, but such problems received little international attention. Activists and NGOs investigated these as far as they could, but state authorities have not assisted them in their efforts to uncover the true scale of damage and build a wider case for the adoption of ecocide as a crime. In Ukraine, the government already issues weekly reports on the environmental impact of the war. An independent evaluation of the environmental damage caused by Russia will be possible, which will drive broader legal ramifications.  

There is another Ukraine-specific element too: since the start of the war, Ukrainian policymakers have been busy working out how to draw some good from the bad, in a whole range of areas, including the environment. They have devised ideas to rebuild towns and cities in greener ways, pursue carbon-neutrality, or construct a new electricity grid resilient to the warming climate. Ukrainian parliamentarians have laid out their vision for their country as a hub of new industrial technology and renewable energy projects, linking up with the EU European Green Deal. The president included “immediate protection of the environment” in his 10-point peace plan in November 2022.

There is a particular role for the European Union here. Prior to any amendment to the Rome Statute, the EU should lead the way by outlawing ecocide. The bloc can then apply these standards in any future conflicts and advocate their further internationalisation.

Few expected the ICC to begin proceedings against Putin. And when the establishment of a special tribunal to prosecute the Russian leadership for the crime of aggression was first proposed, sceptics abounded. But that idea too is gaining traction and has won support in the West. Together with allies, Ukraine’s determination is making the seemingly impossible possible. The breakthrough on ecocide can be next.

The European Council on Foreign Relations does not take collective positions. ECFR publications only represent the views of their individual authors.

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