On June 16, the Environmental Policy and Advocacy Initiative for Ukraine (EPAIU) held an environmental discussion on crimes against the environment and ecocide. The discussion took place on the media platform Your City in Kyiv with the support of Sweden.
The invited speakers were experts from Ukrainian environmental protection organisations working on crimes against the environment and ecocide, collecting evidence of these crimes and advocating that the aggressor be brought to justice for the crime committed. A representative of the General Prosecutor’s Office of Ukraine, who works directly with this topic at the state level, also joined the discussion.
The discussion was moderated by Oksana Dashchakivska, Manager at the Renaissance Foundation.
The discussion was attended by Maksym Popov, Adviser to the Prosecutor General of Ukraine, Olena Kravchenko, Executive Director of Environment. Law. People, Olha Polunina, Executive Director of EcoAction, Borys Babin, Leading Expert at the Crimean Tatar Resource Centre, and Maksym Borodin, Leading Expert at the Together! Initiative Group, who joined the event online.
Definitions, legislation and precedents
Is ecocide a crime? Can we prosecute for ecocide and did this concept exist before in the legislation? Can the blowing up of the Kakhovka HPP or the destruction of Mariupol by the Russians be classified as ecocide? The discussion focused on these issues.
As Olena Kravchenko explained, the term “ecocide” has long been present in Ukrainian legislation where it is defined as “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). The term itself gained much more prominence after February 24, and especially now, after the Russians blew up the Kakhovka HPP.
However, before the full-scale invasion, there were almost no criminal proceedings in ecocide cases, and by the end of 2022, Environment. Law. People counted only 14 such cases in court registers. Why? According to Olena Kravchenko, it is difficult to collect and analyse evidence of ecocide, because the article provides for liability for “large-scale and intentional destruction”. But how large is large-scale? How to prove the intentionality of certain actions of the aggressor? So far, the lack of clear answers to these questions prevents the court proceedings, prosecution and compensation of the guilty.
However, the precedents for the country to compensate for damage to the environment caused by war already exist. In January 2022, the UN Compensation Commission, which was created to consider the case of Kuwait v. Iraq, completed its work: the armed aggression of Iraq in 1991 was accompanied by significant environmental damage to both Kuwait and neighbouring states. The Commission recorded, assessed and awarded compensation for cleanup and restoration of damage to soil, water, coastal ecosystems, and other damages. However, the Commission recognised a little more than 6% of the environmental damage cases from among those submitted as prosecutable. A similar situation, according to Olena Kravchenko, may await Ukraine.
The prospects of financing environmental recovery in Ukraine after the war with the Russian Federation, in particular through international commissions, were analysed by Environment. Law. People through a review of the activities and recommendations of the UN Compensation Commission. Learn more about what they learned on the organisation’s website here and here.
As was noted by Oksana Dashchakivska, moderator of the discussion, according to the data collected by the state, 2,306 verified cases of environmental damage have already been counted. Maksym Popov explained what the General Prosecutor’s Office does with them and suggested using another term, war crimes against the environment. This definition is currently used by the Ukrainian Prosecutor’s Office more often as it covers a wider range of crimes against the environment than “ecocide”.
According to him, currently there are two parallel lines of work to bring the aggressor to justice for their crimes, including crimes against the environment. The first is the direct prosecution of Russia as a state for unprovoked aggression and violation of the UN Charter. The second is bringing individual military personnel and officials of the Russian Federation to individual criminal liability for war crimes and crimes of ecocide. In the first case, we are talking about reparations, while the second suggests directly bringing guilty individuals before the court.
“If there are attacks on civilian facilities, critical infrastructure, oil depots, which result in clear large-scale damage to the environment, we, naturally, initiate criminal proceedings either under Article 441 (Ecocide) or Articles 441 and 438 (Violation of the Laws and Customs of War),” said Maksym Popov. Following this principle, more than 190 criminal proceedings have already been launched, of which 14 are specifically under Article 441 (Ecocide).
Crimes against the environment and occupation (Crimea, Mariupol)
The leading expert of the Crimean Tatar Resource Centre, Borys Babin, agreed that the legal distinction between “crimes against the environment” and “ecocide” was important. Together with the organisation’s team, he investigated the actual and legal dimensions of ecocide in Crimea and the eastern regions of Ukraine since 2014 (the cases of Klivazh, the Titan plant and the illegal use of Syvash by Russia).
“At certain stages of the investigation, the Prosecutor’s Office — at that time it still had these powers — initiated proceedings, including under Article 441. But they have often been reclassified since then,” Mr Babin explained. “A prime example is the situation with Klivazh. This case was reclassified from ‘ecocide’ to a violation of environmental laws and regulations, because after a while, they said that they did not see any signs of ecocide.”
In addition, the definition in Article 441 (Ecocide) contradicts international law. This means that these cases cannot be brought to international courts, because there is no regulatory document that would recognise ecocide as such at the international level. “Yes, our Criminal Code quite legally and legitimately defines the crime of ecocide in its Article 441. However, the definition in this Article does not exist in international law. There is no convention either in international criminal law or in other areas of law that would define ecocide,” said Borys Babin.
But it is not as hopeless as it seems. There are other ways to bring the aggressor to justice, and Mr Babin explains them. “The crimes that the aggressor is committing today and committed until 2022 — during the occupation of Crimea and eastern regions of Ukraine — they are covered by the Rome Statute, which is yet to be ratified, and the Geneva Conventions. Therefore, such crimes will be qualified as a violation of the Geneva Conventions.”
The discussion also focused on the case of Mariupol. A large industrial city, which, even before the full-scale invasion, had significant environmental problems that had been accumulating for years, was almost completely destroyed by the Russians in the spring of 2022. These destructions also affected the environmental situation in the city, but it is almost impossible to assess the scale of the tragedy without collecting soil or water samples while Mariupol is temporarily occupied. However, the team of the Together! Initiative Group attempted to give a preliminary, approximate assessment and prepared a thorough report on the effects of hostilities and Russian crimes on the environment in Mariupol with the support of the EPAIU Initiative.
“There is a preliminary array of data based on video evidence recorded by those very Russians who carried out an attack on Mariupol, on videos taken by Mariupol residents, and on satellite images. This allows us to have a rough understanding of the effects and scale of what happened,” said Maksym Borodin, the organisation’s leading expert.
However, even the approximate results suggest that the primary task of the state after deoccupation of the city should be the creation of a safe environment for people’s lives rather than the restoration and reconstruction of the city, as was the case in Bucha or Kherson. For this, according to Mr Borodin, we need Western support, and not only financial. We need their expertise, experience and knowledge, which will help create safe conditions for the people of Mariupol.
Renovate or build new? Kakhovka HPP and Kherson soils
Olha Polunina, Executive Director of EcoAction, spoke in more detail about the situation in the Kherson region after the Russians blew up the Kakhovka HPP. The preliminary conclusions of the organization regarding the aftermath of this crime can be found on their website. According to Ms Polunina, the key problem and threat could be a significant decrease in soil fertility. After all, a powerful rush of water washes away the fertile layer of the soil. Furthermore, it carries hazardous substances from industrial enterprises that were damaged due to flooding. It will be possible to give a comprehensive assessment of the consequences and assess the extent of the damage only after the water recedes and ecologists have access to take samples.
What can already be said with greater certainty are the consequences of this crime for agriculture. The Kakhovka Reservoir fed the irrigation system, so it is already obvious that there can be no return to the previous management system. As Ms Polunina explained, this is the case where restoration will be less feasible than trying to create something new. “There were many issues with this irrigation system even before. However, Ukraine overlooked it and did not modernise the system. Now this is a challenge, because the Kakhovka Reservoir will no longer be able to provide it.”
What solution does EcoAction see? Taking a different path. “These lands can return to the natural system of the steppes. We can try to restore such an ecosystem there and grow crops resistant to these conditions. Or we could think about another, more eco-friendly irrigation system, one that will use water more sparingly,” said Olha Polunina.
So what to do now?
The war in Ukraine and Russia’s crimes motivate international law to introduce the crime of ecocide. The movement towards the recognition of ecocide as the fifth international crime is gaining momentum, particularly thanks to the advocacy efforts of Ukraine and activists. Maksym Popov referred to the Ukrainian delegation of MPs of the Verkhovna Rada as the “driving force for the criminalisation of ecocide at the EU level” in the Council of Europe, as well as Ukraine’s partnership with the Stop Ecocide International coalition. In addition, he believes that since Ukraine prioritises this angle of the consequences of the war, it diligently collects evidence and conducts advocacy work.
To the question, “Is it really possible to hold Russia accountable for ecocide?” Maksym Popov replied, “It’s a challenge, but it’s within the realm of possibility.” Despite this, the development of the necessary tools and methodology for documenting crimes, calculating damages, etc., is still in progress. This requires closer cooperation between research and expert institutions, laboratories, the public, law enforcement and judicial authorities.
But what else can we do now? Maksym Popov sees two directions of work that can take place simultaneously. First, it is the introduction of changes in the legislation and, in particular, in the corresponding article of the Criminal Code that currently determines the legal framework of ecocide and liability for it. Secondly, it is the development of an infrastructure that will be able to ensure the proper collection and analysis of evidence. This process, according to Mr Popov, should begin with assessing Ukraine’s potential — what we already have, what kind of laboratories, which experts and opportunities, etc.
“We need to reconsider what we are working for and what goal we are pursuing — to punish the aggressor state, both the state itself and the individuals responsible. And for this, our national potential needs to be directed in the right direction,” Maksym Popov concluded.
According to Borys Babin, the first thing we should do now is to determine the framework for the internationally recognised crime of ecocide and its criminalisation at the international level. There also needs to be a convention mechanism in place to define the liability of both individuals and the state. He sees the creation of a separate international convention on the prevention of ecocide as the most promising solution to this issue. In addition, Ukraine must finally ratify the Rome Statute. Without this step, our options for criminalising ecocide and forming court mechanisms are significantly limited.
He believes that Ukrainian experts must be involved in these advocacy processes.And the Crimean Tatar Resource Centre has already made a number of appeals to the UN General Assembly regarding the recognition of ecocide as an international crime and the introduction of appropriate changes in international law.
Until the Rome Statute is ratified, Mr Babin sees two ways of holding Russia accountable right now. The first is through personal action to the European Court of Human Rights, for damages and harm to a person from damage to the environment. This should be done promptly, because there are certain deadlines within which you can file a certain claim. In addition, people can now relocate quickly, and the evidence that can be collected today could already be under occupation — and therefore be lost — tomorrow.
The second way is to involve other countries, in particular the EU and the Black Sea states, in assessing the damage caused. And not only because Ukraine has an unprecedented level of international support — the consequences of Russian crimes in Ukraine will affect ecosystems beyond our borders. “After the release of water and pollution into the Black Sea, as we very cautiously predict extremely significant and negative consequences for the entire water area,” Mr Babin explains.
However, it can be monitored through satellite images, video and photo materials from the scene of events, etc. And this is what Ukraine can do now together with partners from the EU and other countries bordering Ukraine across the Black Sea.
This opinion was further elaborated by Oksana Dashchakivska, who emphasised that international experts should be interested in working with crimes committed on the territory of Ukraine. “After all, ecocide is a crime against the international order and it affects the entire ecosystem globally. Dolphins died not only in Ukraine but near the shores of Turkey and Bulgaria as well. The quality of the water in the rivers affects the states neighbouring Ukraine,” she said.
According to Olena Kravchenko, the development of the necessary infrastructure and reforms should be the starting point. In particular, Ukraine needs the institutional reforms that were important before the war and have only become more relevant during a full-scale invasion, such as the reform of state environmental control and financial reform that will ensure a more transparent distribution of recovery funds. Institutional reforms of the specialised Environmental Prosecutor’s Office should also, in Ms Kravchenko’s opinion, be a priority.
Olha Polunina proposed to direct the available resources to the advocacy of green recovery and the involvement of local organisations and local authorities in these processes in order to prevent the centralisation of recovery processes.
Both speakers mentioned another, no less important thing that we can do right now — encouraging the authorities to cooperate with civil society.The expertise, experience and know-how that Ukrainian activists have can become a powerful auxiliary force in environmentally friendly recovery. They would prevent us from turning to old solutions and quick fixes where it is possible to create something new and more sustainable.
The war in Ukraine and Russia’s crimes motivate international law to introduce the concept of the crime of ecocide. It is important for civil society to work on filling this concept with a real meaning as well as providing appropriate tools for investigation and punishment for this type of crime. Although Ukraine is yet to ratify the Rome Statute, we have the opportunity to influence international law. This work is already being carried out, in particular by the civil society. And the International Renaissance Foundation, as always, supports these efforts.