Environmental damage in the context of international criminal law
It is now two years since the ‘Independent Expert Panel for the Legal Definition of Ecocide’ . Since then
there has been much discussion about whether a new crime of ecocide should be created within the
framework of the International Criminal Court Rome Statute.
But the Russian invasion of Ukraine has brought the underlying issue into real and sharper focus. This
post considers the relevance of environmental harm in the international criminal law context.
The recent damage done to the Nova Kakhovka dam, and the resultant flooding and environmental
impact, comes in addition to Russia’s occupation of and threats against the Zaporizhzhia nuclear power
station and the Chernobyl site. Beyond the catastrophic environmental harm experienced and
threatened in these cases, there are numerous instances of the release, or risked release, of pollution
from Russia’s attacks on Ukraine. include the shelling of the National Science Centre Kharkiv Institute of
Physics and Technology Institute, where nuclear material was stored for research purposes, as well as
bombing factories, warehouses and waste facilities including hazardous or toxic materials. Severe
environmental harm has been risked, and suffered, in Ukraine as a result of the war.
Ukraine has itself adopted ecocide as a crime within its domestic criminal framework. provides that
“mass destruction of flora and fauna, poisoning of air or water resources, and also any other actions that
may cause an environmental disaster, shall be punishable by imprisonment for a term of eight to fifteen
years”. There are, however, clear practical issues with seeking to prosecute Russian perpetrators of
ecocide in Ukraine’s domestic courts.
Although Ukraine is not a party to the Rome Statute, it has issued two declarations accepting the
jurisdiction of the International Criminal Court in respect of crimes committed throughout the territory of
Ukraine. The Prosecutor of the ICC currently has open an investigation which encompasses any past and
present allegations of war crimes, crimes against humanity or genocide committed on any part of the
territory of Ukraine by any person from 21 November 2013 onwards.
When drafting versions of what became the ICC Rome Statute, the International Law Commission
included as proposed offences “acts causing serious damage to the environment” and later “wilful and
severe damage to the environment”. No such provision was, however, included in the final version of the
statute produced by the ILC. More recent attempts to amend the statute to add ecocide have failed.
There are, however, two existing provisions of the which would allow instances of environmental damage
to be prosecuted.
First, Article 8 on war crimes provides that the ICC “shall have jurisdiction in respect of war crimes in
particular when committed as part of a plan or policy or as part of a large-scale commission of such
crimes”. Article 8 applies in relation to an international armed conflict, such as Russia’s invasion of
Ukraine. The definition of war crimes includes “serious violations of the laws and customs applicable in
international armed conflict, within the established framework of international law” and specifically
includes via Article 8(2)(b)(iv):
“Intentionally launching an attack in the knowledge that such attack will cause incidental loss of
life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to
the natural environment which would be clearly excessive in relation to the concrete and direct overall
military advantage anticipated”.
Environmental damage therefore falls within the definition of war crimes in the ICC Rome Statute. The
requirement for “widespread, long-term and severe damage to the natural environment” means that it is
only the most serious instances of environmental damage which would qualify as war crimes. The
requirement for severe damage would allow special weight to be given to damage done to particularly
important or rare habitats or species.
It does seem likely that the facts of some at least of Russia’s attacks in Ukraine – including perhaps on
the Nova Kakhovka dam – would qualify as an attack launched knowing that it would cause “widespread,
long-term and severe damage to the natural environment”. Article 8(2)(b)(iv) is, however, subject to
the proviso that the damage must be “clearly excessive in relation to the concrete and direct overall
military advantage anticipated”, upon which reliance could potentially be sought to be placed in defence
of any prosecution.
Secondly, Article 7 of the Rome Statute deals with crimes against humanity. Such crimes are not
confined to international armed conflict. They are, however, crimes against humanity and not crimes
against the environment as such.
Article 7(1)(k) provides that a crime against humanity includes, when knowingly committed “as part of a
widespread or systematic attack directed against any civilian population”, other inhumane acts of a
similar character to those set out in Article 7(1) which intentionally cause “great suffering, or serious injury
to body or to mental or physical health”.
The required suffering need not be permanent and irremediable harm, but it must be harm that results in
a grave and long-term disadvantage to a person’s ability to lead a normal and constructive life. It is
possible to envisage that such suffering could be caused by means of damage to elements of the
environment on which humans rely, such as release of polluting material to air, pollution of water
supplies, destroying crops, flooding, and the like.
Article 7(2)(a) requires that, for an “attack directed against any civilian population”, there must be a
course of conduct involving the multiple commission of acts pursuant to or in furtherance of a state or
organizational policy to commit such attack. A crime against humanity can be committed pursuant to a
plan of a corporation, and not only by a state pursuant to a state policy. Officers of such corporations
could therefore be prosecuted for crimes against humanity.
In addition to these two Rome Statute offences, environmental damage can be taken into account in
deciding whether a prosecution should be brought. The Office of the Prosecutor at the ICC . This policy paper provided that, as part of assessing the gravity of alleged crimes to judge the most serious crimes
deserving of prosecution, environmental factors would be considered. This included consideration of the
manner of the commission of the crimes – including “the destruction of the environment or of protected
objects” (para 40) – and also the impact of the crimes – including the “environmental damage inflicted
on the affected communities” (para 41).
In this latter context, the policy paper said the OTP:
“will give particular consideration to prosecuting Rome Statute crimes that are committed by means of,
or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources
or the illegal dispossession of land”.
Even apart from the debate about ecocide, there are calls for the Rome Statute to be strengthened to
provide more robust means to address the intentional targeting of the environment during armed
conflict. But there are, in the current ICC Rome Statute, the means for action to be taken in international
criminal law against those responsible for causing serious environmental damage during international
armed conflict.
Richard Honey KC practises as a barrister in the fields of public law and environmental law, domestically
and internationally. He was one of the judges of the International Bar Association International Criminal
Court moot court competition held in the Hague in June 2023, which considered whether 'ecocide' was a
crime against humanity under Article 7(1)(k) of the Rome Statute.