David Krott joins JiC for this guest post on damage inflicted by the war in Ukraine on the natural environment, and its possible treatment by international criminal law. David is as a research assistant at the FH Aachen (Germany) and am PhD candidate at the Vrije Universiteit Brussels, specialising in international environmental criminal law. David has previously written for JiC on climate change and international law here.

Fires in the closed and highly radioactive exclusion zone around Chernobyl, the leak of ammonia from a factory in Sumy, and missiles hitting Europe’s largest nuclear power plant in Zaporizhzhia. These stand as examples of the damage wrought upon the environment by the ongoing war in Ukraine. They represent the harm and threat potential for humans found within these acts of environmental warfare. They also underline how closely warfare is linked with human suffering and environmental harm.

The war in Ukraine has challenged international relations and brought unspeakable harm to the population of Ukraine, its culture, and its infrastructure. In these kinds of conflicts, the natural environment often recedes into the background. But the environment in Ukraine is still suffering a great deal under the war. The threat of environmental harm in Ukraine reaches far across the country’s borders and should be viewed through the eyes of international criminal law.

The natural environment as a victim in the Ukraine war

The natural environment is a major loser in any armed conflict. History is full of examples where the environment was a prime victim of warfare. The environment has even been used as a means of warfare, such as when belligerents apply scorched earth tactics, pollute their enemy’s water supply, or use biological or chemical weaponry directly in combat. Grave environmental harm resulting from war is evident once again in the current war in Ukraine. While the environmental damage cannot be tied to any single event, it stems from the impact of bombs and other explosive projectiles, attacks on fragile infrastructure and industry, as well as secondary causes ignited by hostilities, such as wildfires.

In Ukraine, incidents damaging the environment have ranged from water, soil and air pollution and wildlife harm, to a potential radioactive catastrophe. During the first month of the invasion, many of the country’s most vulnerable ecosystems, which lie in active war zones, have been affected heavily by the fighting. Every bomb and missile launched contains waste and heavy metals, polluting the soil and potentially the groundwater. Relevant infrastructure closely linked to environmental matters may also be targeted as a means of warfare. There have been repeated attacks on fossil fuel infrastructure, electricity stations, water supply systems, and nuclear facilities. The country possesses strong industry, including chemical factories, steel plants and weapon factories. Those industries present a wide array of potential environmental hazards. One particular threat arose with an ammonia leak in a chemical factory that was caused by shelling.

The potential threat to the environment is not only of particular concern to Ukraine. Readers will know well that one of the worst environmental catastrophes of the 20^th century took place in Ukraine: the explosion of the nuclear reactor of the Chernobyl power plant. The incident had effects far across the borders of Ukraine. During this war, Russian troops took control of Chernobyl in the first days after their invasion, leaving the world in the dark about its security. Furthermore, Europe’s largest nuclear power plant, Zaporizhzhia, was also directly attacked. Fears of another nuclear catastrophe are high. The potential harm resulting from a fatal hit on a nuclear power plant would cause significant transnational fallout. These consequences do not arise from the immediate effects of a potential nuclear disaster alone. The pollution of waterways and the air by radioactive particulates would likewise pose a global environmental threat.

These (potential) environmental harms also have a direct impact on humans. They affect the population’s health, food supply and livelihoods. Next to the destruction of the general agricultural infrastructure, the soil and water contamination may have adverse effects on the agricultural sector for years to come. This development is of great concern for an agriculturally-minded state such as Ukraine. Again, the consequences do not remain within the borders of Ukraine. In a globalised world, these ramifications will be felt internationally. Ukraine is, for example, a major global producer of wheat. The effects of the war has lead to rising prices of wheat, which might trigger a potential global food crisis.

It is currently not possible to assess the actual environmental damage in Ukraine caused by the war, but the costs are rising with every day that hostilities continue. The long list of environmental “casualties” will only be fully revealed long after the war. Adverse environmental effects can be felt even years after fighting has ended. Some of the environmental damage done might even be irreversible.

Does the environmental harm concern the International Criminal Court (ICC)?

The Office of the Prosecutor of the ICC has already initiated an investigation into the situation in Ukraine. Investigators are looking into conduct potentially falling under the Rome Statute. The question remains whether the ICC could prosecute responsible individuals for the environmental harm caused in Ukraine.

In this regard, Article 8 of the Rome Statute brings along a relevant sub-paragraph: Article 8(2)(b)(iv) of the Rome Statute. This provision prohibits, as a war crime, “intentionally launching an attack in the knowledge that such attack will cause […] widespread, long-term and severe damage to the natural environment” during wartime. In addition, the conduct has to be “clearly excessive in relation to the concrete, and direct overall military advantage anticipated” and committed with intent. The provision creates a very high threshold, which might even be described as unreachable. Furthermore, there is controversy about the definition of the terms within the provision. The terms “widespread”, “long-term”, and “severe” might be interpreted in several manners. However, the acts described in the paragraph above are at least worthy of discussion in the light of Article 8.

The war crime of inflicting severe environmental damage has never been brought to prosecution at the ICC. However, the ICC Office of the Prosecutor of the ICC (OTP) issued a statement in September 2016 focusing on environmental issues. Thus, the possibility of a prosecution under this provision has given rise to some hope. Within its statement, the OTP stated its intention to extend its focus to environmental harm in the light of international crimes. The war in Ukraine might be the first-ever occasion Article 8(2)(b)(iv) of the Rome Statute is applied.

From an environmental point of view, other provisions of the Rome Statute are of interest too. That includes the prohibition of weapons that use microbial or other biological agents or toxins,  added to the Rome Statute in 2018. This cruel armoury of weapons is now outlawed under Article 8(2)(b)(xxvii) of the Rome Statute. According to current credible information, those means of warfare have not been deployed in the Ukraine war.

Another environmentally highly relevant means of warfare is the direct use of atomic weapons. Despite the clear advisory opinion of the International Court of Justice in 1996 and subsequent efforts to ban the use of nuclear weapons via international (criminal) law (e.g. the 2017 Treaty on the Prohibition on Nuclear Weapons), the usage of atomic weapons is not directly forbidden under international law. Thus, the ICC has no jurisdiction over this matter.

Next to the potential prosecution under an existing provision of the Rome Statute, the acts of Russian troops might also be viewed in the light of a potential future ecocide provision. Some have coined the situation around the Zaporizhzhia as ecocide. Interestingly, the term was coined after an act of war. The defoliation campaign of the United States during the Vietnam War was used as an example when A. Galston first used the term in the 1970s. Last year an expert panel issued a sophisticated proposal for an ecocide provision to be added to the Rome Statute. If adopted, the ICC would receive jurisdiction over a fifth international crime with an environmental focus. Even though calls for an international crime focused on environmental harm are growing, the Court currently does not have a mandate for that. Due to the prohibition of retroactive jurisdiction, a potential ecocide provision is also unlikely to be applied in the war in Ukraine. However, the ongoing hostilities might help push an ecocide provision higher on the international community’s agenda.

Looking forward

From an international criminal law viewpoint, the environment remains almost unprotected in times of war. However, the destruction brought upon the natural environment in Ukraine is receiving greater attention than past conflicts. More comprehensive media coverage of environmental issues and a growing public awareness of the importance of the environment is driving this interest. Many have already urged the international community to monitor and act on these conflict-related environmental issues. The natural environment should no longer only be a secondary concern in war.

Without disregarding the horrors of this war upon the affected humans, and the damage to Ukrainian culture and infrastructure, one should not disregard the environment as a prime victim of this war. Humanitarian and environmental impacts are intimately intertwined. Many of the humanitarian consequences of the war cannot be understood without considering environmental issues, and vice versa.

To improve the protection of the environment, the international community just address one short-term and one longer-term project. First, the ICC should put more effort into the application of Article 8(2)(b)(iv) of the Rome Statute as a “real” war crime regarding the Ukraine war. Secondly, the international community of states should commit to accepting the environment as a factor in international criminal law, in times of war and peace. Nothing less would suffice.