Opinion | Here’s how to prosecute Russia for Ukraine’s catastrophic flood

Ukraine defines ecocide as: “mass destruction of flora and fauna, poisoning of air or water resources, and also any other actions that may cause an environmental disaster.” With the tally mounting by the week, here are just 10 of the estimates on the possible charge sheet so far for the ruin of the vast reservoir:

Damage so extensive easily meets the ecocide definition. The toll also includes: submerged wetlands, forests and national parks; the release of land mines, heavy metals, phosphorus and sewage; decimated wildlife and livestock; lost harvests of grains, seeds, fruit and vegetables. Sectors from farming, fishing and forestry to metals, chemicals, energy and tourism are reeling. A full reckoning will take in consequences that play out over years, such as desertification.

Investigation and prosecution will be challenging but the prospect of success is real. Ukraine is already cataloguing thousands of examples of grave environmental damage from the Russian invasion to add to the charge sheet.

Ecocide is not yet an international crime. A campaigning group of legal experts created a new draft article to the Rome Statute in 2021. This year, the European Parliament used that definition to recommend that the European Union include ecocide in its revised environmental crimes directive.

Sabotage could also be prosecuted by the ICC as an environmental war crime. Article 8 of the ICC statute criminalizes intentional attacks that 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.”

Additional Protocol 1 to the Geneva Conventions states that “dams, dykes and nuclear electrical generating stations, shall not be made the object of attack, even where these objects are military objectives, if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population.” The United States has signed (though not ratified) this protocol. But its provisions relating to the environment are considered international customary law binding on all states.

If negligence caused the collapse, Russia could still be legally exposed under the law of occupation. That obliges forces to respect the human rights of civilians (especially the right to life), preserve public order and safety, and respect property. In that case, the dam disaster would just be the latest of Russia’s many failures to meet its obligations in Ukraine’s occupied regions. If the flooding causes a large loss of life, the event might add to the pattern of crimes against humanity during the war.

What needs to happen now?

United Nations Security Council members should draft a resolution. It must condemn the event, remind Russia of its legal obligations and call on the ICC to initiate a wide-ranging investigation into environmental war crimes in Ukraine under the remit of its current investigation. Russia will veto the resolution; but its diplomatic vandalism could be placed in the record. If requested by Ukraine, countries could send lawyers, ecologists and funds to assist an investigation, without embroiling NATO.

Alternatively, both the U.N. Security Council and General Assembly have the power to establish a special tribunal to investigate and prosecute the crimes — of the kind Ukraine has already called for to prosecute the international crime of aggression.

Wider reforms must also be fast-tracked. To ease prosecution and remove loopholes that allowed the armed attacks on the Zaporizhzhia nuclear power plant, the Rome Statute and the Additional Protocol should be redrafted. The test that damage must be “widespread, long-term and severe” should be changed to “severe and either widespread or long-term” in Additional Protocol I. The reference to military advantage should be deleted from the Rome Statute. And veto power should at last be removed from the permanent five Security Council members: Russia, the United States, France, the United Kingdom and China.

Given Russia’s evident disdain for international law, cynics might ask why ecocide and environmental war crimes prosecutions are worth pursuing. For the same reason that the Nuremberg trials of Nazi officials were held: to give the victims justice and to deter and delegitimize future violations. While sanctions can be perceived as a partisan weapon, international humanitarian law imposes a universal standard. The law itself can lose legitimacy if it is not enforced.

The situation at the Zaporizhzhia nuclear plant also remains concerning. The dam breach has removed a crucial water source for its cooling ponds. The plant has lost power seven times in recent months and Russian forces are still stationed there. With the risk of nuclear disaster ever present, the international community must show its resolve to prevent and punish environmental crimes of war.