Russia could be prosecuted for ecocide in Ukraine

The possibility for Ukraine to hold Russia liable for both damage caused to property and people and environmental damage is, however, fraught with pitfalls. It is not easy, first of all, to collect evidence in the middle of a conflict (1/5th of Ukrainian territory is occupied) and even less so to quantify the cost of reparation measures. Then, neither the International Court of Justice (which only has jurisdiction over the Genocide Convention) nor the European Court of Human Rights (Russia has been excluded from the Council of Europe since September 16, 2022) are competent to resolve disputes between Ukraine and its citizens and Russia. On the other hand, the International Criminal Court (ICC), which sits in The Hague, is competent to prosecute the perpetrators of the most serious crimes, including “attacks” who cause “widespread, lasting and serious damage to the natural environment”.

“Extensive, lasting and serious” damage

While neither Russia nor Ukraine is a party to the Rome Statute that created the ICC, Ukraine has nevertheless recognized the jurisdiction of this court on its territory. Following the arrest warrants issued against Vladimir Putin and several senior Russian officers, the ICC Prosecutor could prosecute high-ranking officers who deliberately committed war crimes against the natural environment . He would then have to demonstrate that the conditions provided for in Article 8, § 2, b, iv), a provision which establishes a crime of ecocide, are met. Given the extent and irreversible nature of many environmental damages, the condition that the damage caused to the natural environment must be “widespread, lasting and severe” appears to be met. Furthermore, the Prosecutor must provide proof that this damage is disproportionate to conventional military operations given the degree of intensity of the conflict. Finally, it will be up to him to demonstrate that the persons prosecuted intentionally contributed to damaging the natural environment.

As such, the destruction of the Kakhovka dam on June 6, 2023, in violation of Protocol II to the Geneva Conventions, to which Russia is a party, which prohibits attacks against these installations, corroborates the intentional element on the part of the military authorities Russians. The same goes for the use of phosphorus bombs in Bakhmut, Kherson and Avdiyivka, prohibited by Protocol III, to which Russia is also a party. That being said, individuals who would eventually be prosecuted before the ICC for war crimes will only incur their individual criminal responsibility and not the international responsibility of Russia.

Damage register

Aware of this obstacle course, the UN General Assembly estimated in 2022, by a narrow majority, that it was necessary to establish an international mechanism for the purposes of reparation for damage from internationally wrongful acts committed in Ukraine or against Ukraine, as well as an international register recording this damage. At this stage, the Damage Register, whose purpose is to collect evidence, does not regulate in concreto the compensation for war damage. This register should therefore be supplemented by a collective reparation mechanism, which could draw inspiration from the Compensation Commission set up by the UN Security Council (resolution 687) in 1991, which took 52.4 billion dollars on oil sales from Iraq (January 2022). This sum notably made it possible to compensate for the damage caused, between February and November 1991, by the emission of 500,000 tonnes of pollutants from the 700 Kuwaiti oil wells prey to fires started by the Iraqi armed forces. However, it is unthinkable that the Security Council would adopt a resolution establishing a similar mechanism, given that Russia and China, as permanent members, have a right of veto. Western states, which want to respect international law, should therefore consider concluding an international treaty, without obtaining Russia’s agreement.

In Ukraine, Russia would use ecocide as a new weapon of war

Since there is no precedent, the States are at this stage very divided. The recognition by an international court of a crime of aggression or individual violations of jus in bello by Russian military officials should, moreover, legitimize the use of a collective reparation mechanism. But so far, no international court has recognized Russia’s international responsibility. There is also the question of its financing. This mechanism could be financed from funds “frozen” by Western countries as part of the measures taken against Russian nationals (300 billion dollars of assets of the Russian Central Bank were frozen in 2022, of which 200 billion with the Clearing House Euroclear). Again, in the absence of prior recognition of Russia’s responsibility, such a unilateral imputation of Russian assets would constitute a precedent in international law.

The courage to cross the Rubicon?

Will member states have the courage to cross the Rubicon by taking Russia’s assets that have been frozen by the EU autonomously? Russia would not hesitate to denounce a violation of customary international law by Western states, which would then assume the role of the sprinkler. And will Russia not in turn take advantage of this violation of international law to seize Western assets as a countermeasure? It is then the snake which will bite its tail. And to what extent could these samples be allocated to the restoration of destroyed ecosystems? If there is strong fear that the environmental damage caused in Ukraine cannot be compensated immediately, Western states must be bold, by establishing the most appropriate compensation mechanism, with the aim of ensuring respect for the international law.

⇒ Title and editorial chapter. Original title: “Russia’s responsibility for damage to the natural environment in Ukraine”