Author: Bruno Villalobos
Following our earlier publication on Ukraine’s attempts to prosecute Ecocide, including its legal framework and current legal proceedings, this article explores the role of the International Criminal Court (ICC) in the prosecution of Ecocide in the context of the war in Ukraine.
This conflict has resulted in massive environmental devastation, as was the case with the Kalynivka oil depot bombing earlier this year. It has resulted in massive ecological destruction, which has prompted Prosecutors in Ukraine to refile environmental war crime bills and the ICC to actively engage with this crisis.
The Legal Framework of the ICC
The ICC is governed by the Rome Statute, which already has a provision for addressing environmental harm during war, primarily under Article 8(2)(b)(iv). That article indicates that a war crime includes:
“Deliberately attacking with the awareness that such an attack will cause incidental loss of life or injury to civilians or destruction of civilian objects or widespread, long-term and extreme damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage expected.”
Legal commentators, like Antonio Cassese, have criticized the language of this provision as a backward step in environmental legislation for at least two fundamental reasons. First, there is a high threshold of damage. Environmental damage must be ‘widespread, long-term, and severe’, a case difficult to prosecute in court due to a lack of concrete definitions. Second, it requires a test of proportionality. Prosecutors have to establish that the devastation of the environment was “clearly excessive” in relation to the “concrete and direct overall military advantage expected”. This leaves room for arguments of military necessity to override environmental interests.
Furthermore, a proportionality test of this high threshold is not demanded pursuant to Article 35(3) of Additional Protocol I (AP1) to the Geneva Conventions which establishes:
“It is prohibited 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.”
Accordingly, should the three cumulative conditions be met, the military necessity and proportionality assessment become void. A positive aspect to this is that more value is placed on the natural environment. On the other hand, the persisting problem of the undefined conditions remains, complicating future applications.
This issue is particularly worse since other Rome Statute provisions can be better used in prosecuting environmental war crimes, such as:
- Article 8(2)(a)(iv) – Destruction of property as a war crime as this provision encompasses broad protections including natural resources such as land, food and water;
- Article 8(2)(b)(ii) – Directing attacks against civilian objects, with the natural environment qualifying as a civilian object;
- Article 8(2)(b)(xvi) – Pillage, and it would be used to prosecute illegal natural resource exploitation or dispossession of land;
- Article 8(2)(b)(xxv) – Starvation as a method of warfare, which comes into force when the environment is intentionally devastated to deprive civilians of resources.
What’s new in the ICC?
In December 2024, the ICC Office of the Prosecutor (OTP) published a Draft Policy on Environmental Crime under the Rome Statute. This represents an important shift in the ICC toward prioritizing prosecutions of environmental harm. This is not a binding document; however, it constitutes a policy guideline for ICC prosecutors to:
- Interpret broadly Article 8(2)(b)(iv) so it can be prosecuted in court.
- Prosecute environmental harm under other war crime laws where applicable.
- Track patterns of attacks on the environment, rather than isolated incidents, to build a stronger case in court.
This Policy also openly acknowledges the legal challenges of the proportionality test of Article 8(2)(b)(iv) and looks for alternative prosecutorial approaches.
New Legal and Investigative Strategies
Arguably the biggest challenge to the prosecution of environmental war crimes is proving intent, as required by Article 8(2)(b)(iv) of the Rome Statute. Prosecutors in Ukraine are getting around this challenge by developing new methods of investigation. This includes satellite and remote sensing for tracking long-term environmental damage and determining patterns of intentional attack on major ecosystems.
They also rely on expert opinions based on environmental sciences. To confirm that specific patterns of damage (e.g., leveling forests, contamination of water sources) could not reasonably be accidental. Furthermore, prosecutors are cooperating with international legal institutions like Eurojust to develop more efficient prosecutorial strategies.
Apart from litigation, Ukraine is a leader in drafting Ecocide as an independent international crime. Experts from Ukraine have worked with international institutions, like the Stop Ecocide Foundation, to develop drafts that would insert Ecocide as the fifth core crime of the Rome Statute, aside from war crimes, crimes against humanity, genocide, and the crime of aggression.
ICC prosecution in the new world order
With the new Trump administration, the United States government has changed its stance on the war in Ukraine and has refused to place blame on Russia’s invasion. This policy change, by a major party in the peace negotiations, has foreseeable consequences for the prosecution of Ecocide in Ukraine.
The new American position could bar the gathering and transit of key evidence to be employed by ICC investigations. Non-endorsement by a major world player prevents proper documentation of environmental damage, as well as responsibility attribution. These kinds of legal prosecutions require exceptional international cooperation, so the alignment of the US can destabilize the cooperative networks with Ukraine and Europe which are required for enforcing international law and bringing culprits to justice.
Moreover, the recent meeting between Trump and Zelensky ended contentiously, showing that US-Ukraine relations are at its lowest point since the war started. Zelensky left the US without having agreed on security provisions, and without signing the deal on natural resources announced last week. Without this agreement, the Trump administration, which vehemently insists on gaining economic profits out of the peace deal, will likely drift away from supporting Ukraine, further undermining the prospects for making Russia accountable for environmental and other war-related crimes.
Conclusion
Prosecution of Ecocide in Ukraine is confronted with major legal and political hurdles, despite the recent progress in ICC policy and investigative practice. While the new trend of the ICC regarding crimes against the environment suggests new prospects for accountability, Article 8(2)(b)(iv) thresholds remain high, and geopolitical trends, such as the shift in the U.S. position, pose obstacles to justice. All the same, Ukraine’s relentless advocacy—both through case filings and in calling for ecocide as an independent global crime—demonstrate its commitment in holding perpetrators accountable and strengthening international environmental law.