On February 20, 2024, a working meeting was held to discuss a further action plan to draw the attention of the International Criminal Court (ICC) prosecutors to the facts of environmental destruction by the aggressor army and the need to apply Article 8(2)(b)(IV) of the Rome Statute to such war crimes that have caused long-term, widespread and significant damage to our environment. In addition to the EPL team, the meeting was joined by representatives of the Institute for Environmental Security from The Hague (Netherlands), a member of the World Commission on Environmental Law of the International Union for Conservation of Nature (IUCN), and an advisor to the Office of the Prosecutor General.
Among the various scenarios for further action, the participants discussed, in particular, building a legal argument for the use of Article 8(2)(b)(IV) of the Rome Statute to bring to justice long-term, significant and widespread environmental damage under various possible initiatives and mechanisms. Such initiatives may include, for example, Moot Court, i.e., a competition between university teams in building appropriate legal arguments. A slightly different option that has been discussed is the so-called Mock Trial, which may not have a competition component, but focuses more on the formation of legal arguments and their testing during a mock trial. It is also possible to test legal arguments within the framework of a mock tribunal, i.e. a trial with all the stages of collecting relevant facts and evidence, presenting them in court and organizing an appropriate information campaign to strengthen the legal arguments made. The discussed options have their own specifics and require a certain level of effort and resources.
The Head of EPL’s Legal Department noted that it is necessary to investigate more deeply the reasons why the ICC prosecutors do not yet see the environmental component in war crimes, and to formulate our further steps in accordance with the results of these studies, because then our response will be more focused and, accordingly, will have a better chance of success.
A representative of the Office of the Prosecutor General of Ukraine announced to the meeting participants that the ICC Prosecutors had launched public consultations1 on a draft policy paper on accountability for environmental crimes under the Rome Statute. The policy paper is intended to set out a systematic approach to the consideration of crimes committed as a result of environmental damage or that have caused such damage within the jurisdiction of the ICC. The analytical document is based on the Rome Statute and other regulatory instruments of the ICC, as well as on relevant environmental agreements, principles of customary international law and case law of other international and national courts. The ICC Prosecutor called on all interested parties to submit their comments on the structure and elements of such an analytical document, which should be finalized by December 2024.
The participants of the meeting agreed that the development and submission of the discussed proposals to the ICC analytical paper is one of the tools to influence the formation of a position on the ICC jurisdiction over environmental crimes and that it is imperative to use this opportunity.
The participants also expressed their readiness to draw the attention of the ICC prosecutors to the environmental crimes of the aggressor in Ukraine through various joint initiatives, preparation of analytical documents and official appeals.
In conclusion, the participants of the meeting discussed which experts and organizations could also contribute to the development and implementation of further steps to include environmental crimes in the ICC’s jurisdiction and agreed to continue working in this direction.
The material was prepared with the support of the European Union and the International Renaissance Foundation within the framework of the joint initiative “European Renaissance of Ukraine”. The material represents the position of the authors and does not necessarily reflect the position of the European Union or the International Renaissance Foundation.
