Image caption: Aerial footage of the city of Kherson following the dam explosion. Владимир Смирнов/AdobeStock.com

In this article, written exclusively for Global Insight, Ukraine’s Prosecutor General describes the Russian devastation of the environment in Ukraine, and elaborates on the implications for international humanitarian law and international criminal law.

One year ago, my team and I were awakened to the news we had long dreaded. In the dead of night on 6 June 2023, Russia had destroyed the Nova Kakhovka Dam. If the damage had ended there, it would have been a grave tragedy. But the flooding soon followed, triggering one of Europe's gravest humanitarian crises since Chernobyl.

The Kakhovka Reservoir, held at bay by the dam, contained as much water as the Great Salt Lake of Utah in the United States. Once broken, it unleashed a treacherous current that cascaded through countless villages and cities, farmlands and forests. 3,000 square miles – a land area larger than Luxembourg – was soon submerged under 20 feet of water.

In the aftermath, 50 people perished and tens of thousands of civilians were displaced. Reservoirs of drinking water for more than one million people, hundreds of thousands of acres of farmland and whole registers of endangered ecosystems were left contaminated, damaged or threatened as land mines, industrial chemicals and an estimated 150 tonnes of industrial lubricant flowed into the Dnipro River.

The collapse did not only bring severe suffering to humans, but it also marked one of the worst ecological catastrophes to date. Vital habitats listed under the Ramsar Convention on Wetlands of International Importance, such as the UNESCO Black Sea Biosphere Reserve and the Kinburn Spit Regional Landscape Park, were severely damaged or destroyed. The breach wiped out plant and animal species at risk of extinction and submerged vast forest areas. A report by the Ukrainian Nature and Conservation Group concluded that ‘the scale of destruction of wildlife, natural ecosystems and entire national parks is incomparably greater than the consequences for the wilderness of all military operations since the start of the full-scale invasion on 24th of February 2022’.

The ‘silent victim’ of war

The destruction of the Kakhovka Dam sounded a global alarm for a silent, often forgotten, victim of war: the environment. On this anniversary of the destruction of the Kakhovka Dam, Ukraine is leading the charge in defending the environment by defining ecocide as the emerging fifth international crime – along with genocide, crimes against humanity, aggression and war crimes.

While the destruction of the Nova Kakhovka Dam may mark a gruesome pinnacle of environmental damage caused by the Russian invasion, sadly, it is far from being an isolated event – as Russia strategically uses the destruction of the environment as a weapon of war. Russia does not shy away from targeting other works and installations containing dangerous forces including the Oskil and Pechenihy dams, as well as Zaporizhzhia Nuclear Power Plant. Throughout the country, there have been mass releases of dangerous chemicals and pollution from damaged or destroyed industrial sites into rivers, lakes and coastal and marine areas, and a devastating impact on air quality from the razing of towns and cities and burning forests.

Precious steppe and wetland ecosystems in the south and east of Ukraine, along with habitats of endangered plant and animal species, were destroyed. Trench warfare and artillery shelling have turned lush fields and floodplains, sandy steppes and riparian forests into scorched wastelands, with scattered toxic materials and contaminated soil and groundwater. It is safe to say, the consequences are devastating, long-term and widespread.

In February 2024, Karim Khan KC, Prosecutor at the International Criminal Court, launched a public consultation on a new policy initiative to advance accountability for environmental crimes under the Rome Statute. Prosecutor Khan has expressly declared: ‘Damage to the environment poses an existential threat to all life on the planet. For that reason, I am firmly committed to ensuring that my Office systematically addresses environmental crimes in all stages of its work, from preliminary examinations to prosecutions. This latest policy initiative is another commitment to this necessary objective’.

Environmental destruction can no longer be considered ‘collateral damage’. It is a crime under Ukrainian law. Article 441 of the Ukrainian Criminal Code stipulates ‘ecocide’ as the ‘mass destruction of flora and fauna, poisoning of air or water resources, and also any other actions that may cause an environmental disaster’.

A long history

Environmental destruction and ‘ecocide’ in warfare is far from new. The term ‘scorched-earth policy’ refers to the deliberate obliteration of resources crucial for enemy sustenance, including crops, water, livestock and other natural reserves. In the fifth century BC, the retreating Scythians reportedly burned agricultural areas and poisoned water wells in an effort to slow the advancing Persian army. In 1943, German forces flooded the Pontine Marshes, which are south of Rome, with salt water to hamper the advances of Allied Forces, encourage the return of Anopheles flies and remove essential supplies of food and fresh water. The act had minimal military effect but devastated the population and would later cause a sharp rise in cases of malaria. In 1991, at the end of the Gulf War, retreating Iraqi troops ignited over 700 Kuwaiti oil wells and emptied millions of barrels of oil into the sea, actions condemned by then German Chancellor, Helmut Kohl, as a ‘crime against the environment’.

The destruction of the Nova Kakhovka Dam is one chapter of a long history of the Kremlin’s disregard for, and deliberate destruction of, the Ukrainian environment. In 1986, due to the negligence of Kremlin officials, the Chernobyl nuclear disaster caused an uncontained spread of radiation across the world. Today, the risks to the Zaporizhzhia Nuclear Power Plant – five times larger than Chernobyl – evoke terrifying images of the 1986 Chernobyl disaster.

In recent decades, new frameworks have been established to define attack on and/or the destruction of the environment as a war crime. Ukraine’s ecocide case is leading on this frontier of international law, setting an important precedent for the rest of the world and future generations to follow. Article 8(2)(b)(iv) of the International Criminal Court’s Rome Statute stipulates a war crime within the context of an international armed conflict as: ‘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’.

This provision draws on the prohibition found in the Additional Protocol I to the four Geneva Conventions of 1949, which prohibits the ‘use of methods or means of warfare which are intended or may be expected to cause [widespread, long-term and severe] damage to the natural environment and thereby to prejudice the health or survival of the population’.

Many obstacles still remain. The Rome Statute sets a very high threshold, requiring the damage to the environment to be cumulatively widespread, long-term and severe. Moreover, the damage has to be ‘clearly excessive’.

In June 2021, the NGO Stop Ecocide proposed overcoming these obstacles by including ecocide as a fifth crime along with war crimes, crimes against humanity, genocide and the crime of aggression in the ICC’s Statute. The proposal seeks to lower the threshold to ‘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’.

Already in late 2022, protection of the environment and prevention of environmental disaster was an essential part of Ukraine's Peace Formula introduced by President Volodymyr Zelensky.

In June 2023, the Office of the President of Ukraine established the High-Level Working Group on the Environmental Consequences of the War. Comprised of Ukrainian and international members, the group is tasked with examining the war’s environmental damage, assessing how justice could be strengthened and recommending steps towards green reconstruction and recovery.

Our Office has initiated a professional discussion on accountability for war-related environmental damage at the United for Justice Conference – organised together with our international partners in March 2023 in the city of Lviv. The high-level event brought together world leaders in the field of justice, government officials and prominent experts. We continued and expanded this discussion at the United for Justice: United for Nature Conference, which was organised jointly with the Ministry of Environmental Protection and Natural Resources of Ukraine and international partners in October 2023 in Kyiv.

As a result, we are at the final stage of developing a strategic plan for the prosecution of war crimes against the environment and the crime of ecocide at the national level.

We closely cooperate with international justice mechanisms and partners. The Office of the Prosecutor (OTP) of the International Criminal Court is also developing national and international standards for the prosecution of war crimes against the environment. My Office remains dedicated and involved in the OTP’s recently launched public consultations on the development of a new policy paper on strengthening accountability for environmental crimes under the Rome Statute. We have also established systematic cooperation with several institutions with extensive experience in the area, including the US Department of Justice.

Ukraine is already pioneering the prosecution of such crimes in seeking to bring to justice the perpetrators of environmental outrages. In February 2024, we served notices of suspicion for the crime of ecocide and war crimes to the former Russian colonel general and four of his subordinates. This was for giving order to launch attacks on the Kharkiv Institute of Physics and Technology – the location of the Neutron Source, a subcritical nuclear installation, and a nuclear storage facility. The Neutron Source Facility has been attacked with 74 different types of weaponry including aerial bombs, multiple-launch rocket systems and barrel artillery – posing a real threat of environmental disaster.

In parallel, we continue to investigate the destruction of the Kakhovka and Oskil dams, including the evaluation of the damage caused to the natural environment.

Recently, Ukraine’s effort to advance the global recognition of ‘ecocide’ as an international crime has begun gaining traction worldwide. Belgium’s recently adopted penal code includes ecocide as a domestic and international crime. The Inter-Parliamentary Union, the European Parliament, the Council of Europe and the Organization for Security and Co-operation in Europe have all supported the recognition of ecocide in the Rome Statute.

A global legacy

Events in one country affect the environment everywhere. The trifecta of biodiversity loss, stresses on the climate and increased pollution is tragically evident in Ukraine. Russia's indiscriminate and cruel way of waging war has had a devastating effect on all three.

The environmental devastation reaches far across the borders of Ukraine, directly impacting the world as a whole. The threat of nuclear catastrophe, and the targeting and military occupation of nuclear power plants, demands the international community’s utmost attention. Ukraine and its neighbours suffer from air pollution and poisonous fumes stemming from the war, and those abutting the Black Sea contend with mines, polluted shorelines and severe damage to marine wildlife.

By giving a legal voice to the environment, we can ensure that nature is no longer the ‘silent victim’ of war. On this anniversary of the destruction of the Kakhovka Dam, we are hoping to wake up the world to the environmental consequences of war so that no one ever will have to wake up to news of such destruction as my team did one year ago.

Ukrainians know very well that every war crime has a name, and we know the names of those who rain death upon our cities and who devastate our forests, rivers and meadows. We also know their address: 103132, Moscow, Russia. The Kremlin. We must hold them accountable.