Environmental Damage in Ukraine as Environmental War Crime under the Rome Statute

Abstract

Abstract The Russian invasion of Ukraine has caused irreparable damage to the natural environment. Despite being a topic of wide discussion, an analysis of whether the attacks causing such damage can be tried at the International Criminal Court (ICC) as an environmental war crime (EWC) under Article 8(2)(b)(iv) of the Rome Statute remained grossly inadequate. Even after the Kakhovka Dam destruction in June 2023, the most significant incident of environmental damage since the war started, no comprehensive analysis of the incident from an EWC perspective was made. The present article fills this void and thoroughly analyses whether the dam breach can qualify as an EWC under Article 8(2)(b)(iv), the most ecocentric provision in the entire international criminal law (ICL) framework. After providing an overview of the environmental damage caused and a synopsis of the EWC, this article applies the EWC provision to the incident and discusses the prospects and the challenges of characterizing it as an EWC. This article suggests that Russia’s intentional attack on the dam can be a potential case of EWC under Article 8(2)(b)(iv) as it caused ‘widespread, long-term and severe’ environmental damage in contrast to little military advantage — which was arguably known to Russia. At the same time, however, the article identifies some challenges that the ICC Prosecutor may face in proving the case, like determining the ‘attack’ question, satisfying the ‘long-term’ damage criterion, and establishing the mental elements, particularly the ‘knowledge’ element. It also briefly discusses the broader implications of the assessment and the identified challenges. The article concludes that the challenges can be surmounted and, in any case, bringing such a charge will offer the ICC an avenue to clarify the existing uncertainties surrounding Article 8(2)(b)(iv), which will ensure legal certainty and help ensuring environmental justice through the ICL regime in future.