CounterVortex

by Elliot Winter, Jurist

The Russian invasion of Ukraine has entered its third month. The suffering of Ukrainian civilians has been awful and the prosecutor at the International Criminal Court (ICC) is satisfied that there are “reasonable grounds” to believe war crimes have been committed. Media attention has, quite rightly, focused on the plight of those individuals caught up in the carnage—many of whom have died in terrible circumstances. However, in the background, there is another victim of the invasion: the environment. This brief piece is intended to highlight instances of environmental destruction that have occurred in the context of the invasion and to show that—despite the rigorous tests that apply—these too might qualify as war crimes.

Russian Acts of Environmental Destruction in Ukraine

The Environmental Peacebuilding Association (EnPAx)—an organization that promotes the protection of the environment by coordinating researchers and policy makers—issued an open letter in March that collated various incidents of environmental destruction in Ukraine. It noted, for example, that the seizure of the Chernobyl nuclear disaster site “mobilized radioactive dust and increased detectable radiation [that] may spread radioactive material into new areas.” It also observed that attacks against cities such as Kharkiv “have caused major fires in fuel storage areas threatening serious air, ground, and water pollution.” Finally, EnPAx flagged up the fact that fighting in the Black Sea Biosphere Reserve has “generated fires that can be seen from space.” These events, and the countless others that have not yet come to light, raise the question of the extent to which international criminal law might be used to bring the perpetrators of environmental destruction to account.

The Environmental War Crime

The Rome Statute of the International Criminal Court was adopted in 1998 and provides the main definition of international crimes. Even though neither Russia nor Ukraine are parties to the Rome Statute, the ICC has jurisdiction over events in Ukraine as Ukraine is the locus of the alleged crimes and the Ukrainian government has issued a special declaration accepting the jurisdiction of the ICC. In the context of environmental destruction in times of war, the Rome Statute states that it is a war crime to “intentionally [launch] an attack in the knowledge that such attack will cause…widespread, long-term and severe damage to the natural environment.” Given the ICC’s jurisdiction over events in Ukraine and given the existence of the environmental war crime, it is certainly possible that individual Russians—up to and including Vladimir Putin—could be held personally accountable for acts of environmental destruction in Ukraine. The difficulty is that the criteria the prosecutor must satisfy to secure a conviction are exceptionally rigorous.

The Rigors of the Environmental War Crime

As with most crimes, the criteria of the environmental war crime can be split into two categories: (i) those concerned with the conduct itself (actus reus) and (ii) those concerned with the mindset of the accused (mens rea). On both counts, the bar is set high and so the ICC prosecutor—currently the British barrister Karim Khan—would have a tough job proving his case.

In terms of the actus reus, the damage must be “severe,” “widespread” and “long-term.” The Rome Statute omits any definition for these terms. So too does the Environmental Modification Convention (ENMOD Convention) which is the usual point of reference for all things that sit at the intersection of environmental destruction and war. However, the Geneva Conference of the Committee on Disarmament (the CCD) has issued interpretive guidance for the ENMOD Convention that is instructive here.

Regarding the “severe” criterion, the CCD defines this as “involving serious or significant disruption or harm to human life, natural and economic resources or other assets.” Regarding the “widespread” criterion, the CCD defines this as “encompassing an area on the scale of several hundred square kilometres.” Finally, regarding the “long-term” criterion, the CCD refers to “long-lasting” as meaning “lasting for a period of months, or approximately a season.” These tests are individually rigorous and, notably, they are also “conjunctive” in the sense that all three must be satisfied—one or two will not suffice.

In terms of mens rea, the environmental war crime requires that the attack was intentional and that the accused had knowledge of the damage that would result. “Intent” requires that a person “means to engage in the conduct [or] means to cause that consequence or is aware that it will occur in the ordinary course of events.” “Knowledge” requires “awareness that a circumstance exists or a consequence will occur in the ordinary course of events.” According to Kevin Jon Heller of Copenhagen’s Centre for Military Studies, the ICC interprets “knowledge” in this context very strictly, and requires that the perpetrator is aware that his or her actions are “virtually certain” to result in the unlawful outcome.

Applying the Environmental War Crime to Ukraine

The rigors of the environmental war crime become apparent when one applies them to a real situation. For example, the diffusion of radioactive material caused by the columns of Russian vehicles churning up ground around Chernobyl might well be “severe” (in the sense that it can cause death) and might also be “long-term” (in the sense that this particular radioactivity persists for decades—which we know given that the initial Chernobyl disaster occurred in 1986). However, it is harder to argue that it would be “widespread” in the sense of covering “several hundred square kilometres” unless one took an extremely liberal approach and considered, for example, the mere transportation of radioactive material in tyre treads to be sufficient.

“Knowledge” might also be difficult to establish—especially given that Russian personnel seem to have been spectacularly under-informed about the nature of their mission even in the most general terms (many seem to have believed they were embarking on training exercises). Even commanders might not have known of the peculiar risks associated with maneuvering heavy vehicles on a radioactive site and, even if they did, it would be hard to show that they were aware of a “virtual certainty” that the dust may go on to kill or otherwise harm civilians in later years (assuming the ICC adheres to that strict interpretation of mens rea).

Similar challenges would likely arise if prosecutions were attempted based on the pollution of Kharkiv or the Black Sea coastal areas. These challenges are not insurmountable by any means, but they would need to be taken very seriously and the prosecutor would need to strain every sinew to overcome them. The ICC itself would likely also need to demonstrate willingness to interpret the Rome Statute somewhat more flexibly than it has been prepared to do in the past and to evolve its jurisprudence in line with the greater awareness that exists today of the need for environmental safeguarding. This was encapsulated by the United Nations secretary general, Antonio Guterres, who stated in 2020 that “humanity is waging war on nature… biodiversity is collapsing… one million species are at risk of extinction… ecosystems are disappearing before our eyes… But…human action can help to solve it.”

Added to these substantive difficulties are some more practical considerations. The ICC might have a very difficult time getting hold of any Russians in the first place in the absence of extradition from Russia and, even if it did manage to get someone into the dock, the Court has an uninspiring conviction record, with only ten convictions according to the ICC itself. Again, these challenges could be overcome. It is possible, for example, to imagine a future in which Vladimir Putin and his allies are deposed and forced into exile with the effect that international justice might be able to catch up with them as they flee around the world. The ICC might also be furnished with a fuller budget in the future precisely so that it is positioned to address the Russian invasion of Ukraine convincingly. We simply need to be clear-eyed about the prospects of such an endeavor and the timescales that might be involved.

Conclusion

The environmental war crime as stated in the Rome Statute offers an additional route by which Russians responsible for the devastation in Ukraine could be held to account for their actions. Its thresholds are rigorous and the prospects of successful convictions are contingent on forceful and innovative legal advocacy, a sympathetic and well-funded court and—most likely—significant political upheaval within Russia. Nonetheless, pursuing additional charges on the basis of the environmental war crime would send a strong message to politicians, policy makers and military personnel around the world that environmental destruction is taken seriously. Even if the charges were to fail, that very failure might serve to incite change by highlighting the need for reform in this area of law.

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Elliot Winter is a lecturer in international law at Newcastle University in the United Kingdom.

This story first appeared April 25 in Jurist.

Photo on fire at petrol depot in Vasylkiv via Wikipedia.

From our Daily Report:

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Audio:

Podcast: Chernobyl and nuclear fear in Ukraine
CounterVortex, May 2, 2022

See also:

ECHOES OF SYRIA, AS PUTIN BOMBS HOSPITALS IN UKRAINE
by Dr Houssam al-Nahhas, The New Humanitarian
CounterVortex, April 2022

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Reprinted by CounterVortex, May 2, 2022