Oleksii Plotnikov (PhD, International Judiciary)

The “Crimean Flood” in June 2021 clearly demonstrated the irresponsibility of the occupation “authorities” in relation to the ecology of Crimea. Our resource has already on numerous occasions informed about the facts of predatory exploitation of the peninsula’s water resources, lack of a proper environmental impact assessment of projects, and thoughtless construction leading to destruction of unique ecosystems. It is likely that the ruination of the Crimean nature by the invaders could become a subject of consideration in the International Criminal Court. Today, the prospect of the emergence of a crime of ecocide in international criminal law is real as it never was before

The body of international law on environmental protection was formed throughout the twentieth century, and is very extensive. Let us only recall what concerns armed conflicts and occupation. Article 35 of the Additional Protocol to the 1949 Geneva Conventions [1] prohibits to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment. In accordance with article 55 of the same Protocol, care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population.

The International Committee of the Red Cross maintains a record of customary norms of international law. Notably, Rule 44 is on “Due Regard for the Natural Environment in Military Operations” [2]. It provides that in the conduct of military operations, all feasible precautions must be taken to avoid, and in any event to minimize, incidental damage to the environment. Lack of scientific certainty as to the effects on the environment of certain military operations does not absolve a party to the conflict from taking such precautions.

This requirement is related both to the norms of international humanitarian law on occupation, and to the norms of international environmental law on liability for environmental damage caused by the activities of a state, or activities under the control of the state outside a territory of that state. There is a single principle, which is repeated in the Stockholm Declaration [3], the 1992 Rio Declaration, the 1992 Convention on Biological Diversity [5], and many other documents: the state is responsible for ensuring that activities under its jurisdiction or control do not cause damage to the environment of other states or areas beyond the limits of national jurisdiction.

The principle of responsibility of states for ecological state of the occupied territory during an armed conflict is affirmed in international practice. In 1991, the UN Security Council adopted Resolution 687, which dealt with the Iraqi occupation of Kuwait [6]. It, in particular, noted that Iraq “is responsible under international law for any direct loss or damage, including damage to the environment and the depletion of natural resources … as a result of Iraq’s illegal invasion and occupation of Kuwait”.

In 2019, the UN International Law Commission adopted in its first reading the Draft Principles for the Protection of the Environment in Relation to Armed Conflicts [7]. Part 4 of the draft sets out principles applicable to situations of occupation. In accordance with principle 20, the occupying power must respect and protect the environment in the occupied territory and take environmental considerations into account when managing such territory. The occupying power must implement appropriate measures to prevent significant damage to the environment in the occupied territory, which could result in harm to the health and well-being of the population of the occupied territory. Principle 21 provides that the occupying power when managing the natural resources of the occupied territory, must do so in the interests of the population of the occupied territory in a manner that ensures their sustainable use and minimizes environmental damage. Principle 22 requires an occupying State to exercise due diligence to avoid significant environmental damage to areas outside the occupied territory.

These are the existing and emerging international norms relating to international legal responsibility of states. The existence of such rules in international law creates the basis for recognition of acts that cause significant harm to the environment as an international crime for which individuals are individually criminally liable. This crime became known as “ecocide”.

The term was coined by an American professor and expert on bioethics Arthur W. Galston. In 1970, he used the word to refer to deliberate destruction of the nature of Vietnam for military purposes. In 1978, the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities proposed to include a norm on ecocide in the 1948 Convention on the Prevention of the Crime of Genocide [8]. The possibility of including ecocide in the list of international crimes was debated in the UN International Law Commission in connection with the development of a draft Code of Crimes against the Peace and Security of Mankind. This work was important for the inclusion to the Rome Statute of the ICC [9] of a crime of “intentionally launching an attack in the knowledge that such attack will cause … 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”.

The problem with the existing definition in the Rome Statute is that it links environmental crime solely to the conduct of hostilities. It would be associated with the activities of a state, which in itself are not aimed at achieving military advantage, for example, with the administration of an occupied territory. Therefore, the next step was necessary – the development of a rule on international criminal responsibility for environmental damage, regardless of the fact of hostilities.

A solid basis for this is provided by the practice of states where ecocide is recognized as a crime under national criminal law. Thus, the very first edition of the Criminal Code of Ukraine included article 441 [10],according to which, ecocide is defined as mass destruction of flora or fauna, poisoning of atmosphere or water resources, as well as commission of other actions that may lead to an ecological disaster. Such an act is punishable in Ukraine by imprisonment for a term of eight to fifteen years. A practically identical definition is contained in Article 358 of the Criminal Code of the Russian Federation [11], which provides for punishment for the crime of ecocide in the form of imprisonment for a term of 12 to 20 years. Ecocide is recognized as a crime in criminal codes of most post-Soviet countries [12]. A number of other countries, in particular Belgium, Spain, Canada, France, work to include ecocide in their criminal legislation [13]. On January 12, 2021, the European Parliament adopted a resolution calling on EU member states to support the recognition of ecocide as an international crime under the Rome Statute [14]. The first appeal to the International Criminal Court concerning ecocide has already been filed. On January 23, 2021, a group of indigenous leaders of Brazil approached the Hague about the policies of the President of the country that lead to a destruction of forests and undermined the basis for the existence of indigenous peoples [15].

It can be seen that presently a rapid development of international law on the crime of ecocide is taking place. Against this background, on June 22, 2021, a group of international experts presented a draft amendment to the Rome Statute introducing ecocide as a special international crime.

According to the draft [16], “ecocide” means 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. “Wanton” means with reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated. “Severe” means damage which involves very serious adverse changes, disruption or harm to any element of the environment, including grave impacts on human life or natural, cultural or economic resources. “Widespread” means damage which extends beyond a limited geographic area, crosses state boundaries, or is suffered by an entire ecosystem or species or a large number of human beings. “Long-term” means damage which is irreversible or which cannot be redressed through natural recovery within a reasonable period of time.

The activities of the occupiers in Crimea are likely to fall under such a definition. Here we shall not provide additional information about this activity, because it has already been repeatedly published on our resource and in other sources (for example: [17], [18], [19]). Ukraine should now consider the possibility of submitting information about the Crimean ecocide to the ICC. The Brazilian experience described above can be helpful at this point. Adequate preparatory work will also be helpful when ecocide is recognized as an international criminal offense.

Finally, one should not rely solely on the International Criminal Court. Ukrainian legislation already allows the conviction of those guilty of ecocide under the Criminal Code of Ukraine. At least two such cases are already being investigated addressing the activities of the Russian invaders in Donbass, which creates a risk of environmental disaster [20], [21]. Nothing prevents the initiation of criminal proceedings regarding environmental damage caused by the actions of the de facto occupation authorities of Crimea.

The crime of ecocide will not be formalized in the Rome Statute of the International Criminal Court immediately. According to the experts, this will take two to seven years [22]. However, it is the situation in Crimea that can become a convenient case for the ICC, a sort of a testing site for a new crime of ecocide in conjunction with well-recognized international crimes. However, whether the Crimean ecocide gets to the International Criminal Court will depend, first of all, on Ukraine.

Sources

1. https://zakon.rada.gov.ua/laws/show/995_199#Text

2. https://ihl-databases.icrc.org/customary-ihl/rus/docs/v1_rul_rule44

3. https://zakon.rada.gov.ua/laws/show/995_454#Text

4. https://zakon.rada.gov.ua/laws/show/995_455#Text

5. https://zakon.rada.gov.ua/laws/show/995_030#Text

6. https://undocs.org/ru/S/RES/687(1991)

7. https://documents-dds-ny.un.org/doc/UNDOC/LTD/G19/153/13/PDF/G1915313.pdf?OpenElement

8. https://ecocidelaw.com/history

9. https://zakon.rada.gov.ua/laws/show/995_588#Text

10. https://zakon.rada.gov.ua/laws/show/2341-14/ed20010405#Text

11. http://www.consultant.ru/document/cons_doc_LAW_10699/31ec6d92fb1854250f7b09764276f39aec4bfa4b

12. https://ecocidelaw.com/existing-ecocide-laws.

13. https://www.endecocide.org/en/who-we-are-2

14. https://www.europarl.europa.eu/doceo/document/TA-9-2021-0014_EN.html

15. https://www.universal-rights.org/blog/brazilian-indigenous-leaders-urge-the-international-criminal-court-to-investigate-president-jair-bolsonaro-over-destruction-of-the-amazon

16. https://static1.squarespace.com/static/5ca2608ab914493c64ef1f6d/t/60d1e6e604fae2201d03407f/1624368879048/SE+Foundation+Commentary+and+core+text+rev+6.pdf

17. https://ua.krymr.com/a/news-krym-ekolohichna-katastrofa/31003664.html

18. https://ua.krymr.com/a/pryroda-krymu-ekolohia-dumky-aktyvistiv/31062770.html

19. https://ua.interfax.com.ua/news/general/699123.html

20. https://reyestr.court.gov.ua/Review/92924339

21. https://reyestr.court.gov.ua/Review/96985956

22. https://www.stopecocide.earth/faqs-ecocide-the-law