In December of 2023, the Twenty-Second Session of the Assembly of State Parties (ASP) to the Rome Statute of the International Criminal Court (ICC) was held in New York City. Our Ukraine team traveled to New York City to highlight war-driven environmental damage in Ukraine in a side event co-sponsored by the respective permanent missions of Estonia, Ukraine, and Romania to the United Nations.
The team members presented their findings about the environmental damage that happened due to the destruction of the Kakhovka Dam. In the midst of the full-scale Russian invasion on Ukraine, the tragic destruction of the Kakhovka Dam on June 6, 2023, not only resulted in severe environmental consequences but has also ignited a crucial conversation surrounding individual criminal responsibility and the protection of critical infrastructure under the International Criminal Law (ICL) framework.
As highlighted in The Kyiv Independent, Ukraine is striving to set a global standard for investigating ecocide as a war crime, particularly concerning attacks on dams. Ecocide is defined in Ukrainian legislation as the “mass destruction of flora and fauna, poisoning the atmosphere or water resources, as well as the commitment of other actions which may cause ecological disasters” (Article 441 of the Criminal Code of Ukraine, Ecocide). Recognizing the significance of individual criminal responsibility as a mechanism to prevent such attacks, PEJ works to support those in the country to hold perpetrators accountable for the war crimes defined in the Rome Statute. This crime involves intentionally launching an attack that causes excessive, widespread, long-term, and severe damage to the natural environment, relative to the military advantage anticipated.
The challenges within the ICL framework are multifaceted, with the actual consequences not being a prerequisite for prosecution; the potential to inflict severe harm is deemed sufficient. The Elements of Crimes demand a nuanced evaluation of the perpetrator's subjective understanding of excessive damage in relation to the anticipated military advantage. Meeting the cumulative criteria of widespread, long-term, and severe environmental damage poses a formidable task, requiring an attack capable of causing simultaneous damages meeting all three criteria.
However, within this complex legal landscape, the protection of critical infrastructure, including dams, emerges as a paramount concern within the ICL framework. International Humanitarian Law (IHL) plays a pivotal role by providing special protection to installations with dangerous forces, explicitly including dams (as stated in Article 56 of the API). Even if a dam is repurposed for activities other than its normal function and is in direct support of military operations, it remains under the safeguard of the IHL proportionality principle. This principle explicitly prohibits attacks that may cause excessive incidental loss of civilian life, injury to civilians, damage to civilian objects, including the environment.
As Ukraine endeavors to set a precedent in investigating the mass destruction of the environment during war, the challenges within the ICL framework and the balance needed between prosecuting environmental crimes and protecting critical infrastructure come to the forefront. The international community is called upon to actively engage in developing legal mechanisms that navigate these complexities. The environmental crisis in Ukraine not only demands accountability but also underscores the urgency of establishing comprehensive frameworks that safeguard critical infrastructure during armed conflicts. In doing so, the global community can contribute to a more just and sustainable future, where the devastating impact of war on the environment is met with robust legal responses.