The dam has burst: making ecocide a crime

Russia’s war on Ukraine creates momentum for a breakthrough in adopting ecocide as an international crime.

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. Uraine’s president, Volodymyr Zelenskyy, 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 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 with extinction.

The latest estimate of damage to land, water and air reaches $53 billion, a figure Ukraine is demanding in reparations from Russia. Following the dam attack, Zelensky warned this bill would now come in significantly higher.

Deep scrutiny

Russian crimes in this war are already facing deep scrutiny: the International Criminal Court has issued an arrest warrant for the Russian president, Vladimir Putin, over the deportation of Ukrainian children. And, as Zelenskyy’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, the European Parliament voted in support of ecocide becoming European Union law; shortly afterwards the European Economic and Social Committee began an initiative on ecocide, in which it singled out Russia’s 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 ecocide.

Complex task

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.

The definition proposed by the IEP does not however 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. Some 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 United States’ Senate Foreign Relations Committee, Bob Menendez, argued that ‘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.

Service for the planet

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.

Other recent wars, such as in Syria or Yemen, have also seen great environmental damage but such problems have received little international attention. Activists and non-governmental organisations have investigated them as far as they could, but state authorities have not assisted them in their efforts to uncover the 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, with broader legal ramifications.

There is another Ukraine-specific element too: since the start of the war, Ukrainian policy-makers 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 against a warming climate. Ukrainian parliamentarians have laid out their vision for their country as a hub of new industrial technology and renewable energy projects, linking with the EU’s European Green Deal. The president included ‘immediate protection of the environment’ in his ten-point peace plan last November.

Leading the way

There is a particular role for the EU here. Before any amendment to the Rome Statute, it 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.

This was first published by the European Council on Foreign Relations