Ukraine: Prosecuting Ecocide

Ukraine has experienced a huge amount of environmental destruction in the course of the Russian invasion – most recently the June 6 destruction of the Khakhovka dam. Arguing that the damage amounts to “ecocide,” Joanna Hosa, a policy fellow with the Wider Europe programme at the European Council on Foreign Relations, explains how gaining international recognition for this crime could radically change how environmental damage is prosecuted and perceived.

IWPR: Could the destruction of the Khakhovka dam mark a turning point in the prosecution of the crime of ecocide?

Joanna Hosa: The destruction of the Khakhovka dam is an egregious crime and a very important moment in the war - but on its own not necessarily a turning point for the prosecution of ecocide. To change the statute of the International Criminal Court (ICC), and introduce ecocide as a new crime, widespread global support is needed. Unfortunately, the attack on the dam and its consequences did not shock governments worldwide as much as it should have. However, the overall destruction of the environment in Ukraine since the beginning of the war is appalling. Ukraine is the most biodiverse country of Europe, and much of the fighting takes place in a heavily industrialised area, which together is a recipe for an environmental disaster. Once the world realises that, we might see a breakthrough when it comes to codifying and prosecuting ecocide.

How could this work on a practical level in the Ukrainian context? Who would be the defendant, for instance?

It would be the people responsible for taking decisions to blow up the dam or destroy other infrastructure or nature reserves – the decisions that led to the destruction of the environment. Of course, the challenge would be proving that they knew it would lead to environmental destruction. This criterion of knowledge is the key part of the proposed definition of ecocide. And an even bigger challenge would be getting hold of the defendants and having the actual process. Depending on how the war ends, it might become possible. But even if not, circumstances might change in the future and the indicted might eventually be brought to justice.
 
How has the proposed international definition of ecocide evolved, and what level of knowledge is there amongst the legal community about this crime?

Environmental law is a relatively new branch of law – it emerged in the mid-20th century. In the context of the war in Ukraine we focus on environmental damage in wartime, but there have been efforts to criminalise environmental damage at peacetime too. The term ecocide was coined in 1970 and was soon used in reference to the Vietnam war. However, the most serious efforts to criminalise ecocide are recent; the widely cited definition on ecocide, proposed by the Independent Expert Panel (IEP) convened by Stop Ecocide International, was drafted in 2021. The war in Ukraine is likely to speed up the process significantly.

Is there the global political will to adopt ecocide as an international crime? What are the main challenges to prosecuting ecocide?

The main challenge is gaining truly international support. The efforts to adopt ecocide are currently spearheaded by Ukraine and its Western allies, but there are as many as 123 State Parties to the Rome Statute of the ICC. Global support is needed. However, even if numerous countries prefer not to take sides when it comes to the war in Ukraine, given the global environmental crisis, they might be amenable to act to protect the environment. Western governments are aware of the need for global support, and have called on the UN to take action. 
Another challenge is the capacity of the ICC itself. There are voices that suggest that the court is overwhelmed and adding another crime would only make matters worse. Moreover, since the ICC’s establishment, it has been subject to relentless criticism that it is biased, has too little or too much authority, etc.

The ICC already recognises environmental destruction as a war crime. What would be the wider impact if ecocide, specifically, was adopted as a statute?

At the moment, the ICC’s statute 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. Damage to the environment is mentioned briefly, almost as an afterthought, amongst other war crimes, in Article 8 of the Statute.
Making ecocide the fifth most serious crime in its own right would radically change the way that environmental damage is prosecuted and perceived across the world. It would increase awareness of the problem and accountability for the crime, and have a significant normative impact.
 
What other forums could prosecute this crime? For instance, the criminal code of Ukraine has provisions that relate to crimes against the environment, amounting to ecocide.

That’s right, national jurisdictions can statute on ecocide. So can other institutions; it could for example enter EU law. Indeed, there are efforts towards making this happen. However, the message would be stronger if the ICC could prosecute the crime. This is the international court that requires international support – placing ecocide on the ICC statute would show that it is not an idea of a few individual states, but one that enjoys global support.

How would you answer those who argue that the difficulty of defining, let alone proving this crime means it is not worth the resources needed to try and prosecute it?

It was similar with other crimes, genocide for example. But despite the difficulties, genocide has now become a widely recognised crime, and is often perceived as the most despicable one. The International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) have both successfully prosecuted genocide, and the verdicts played a key role in recognising the suffering groups targeted by genocide and bringing justice. Given the global environmental crisis, now is a good moment to bring attention to the suffering of ecosystems and the people within them, and make it as unacceptable as inflicting harm on people. 

Joanna Hosa is a policy fellow at the European Council on Foreign Relations. She covers issues related to security, conflict resolution, Eastern Europe, and the Arctic.