How to prosecute Russia for environmental crimes in Ukraine

During the Ukraine Recovery Conference in Lugano, Switzerland earlier this month, Ukraine announced that a full recovery will cost a staggering $750bn [€739].

As with the successful Marshall Plan after World War II, it is important to lay down the foundation of the Ukrainian plan well in advance.

Equally important is that the post-war recovery be done sustainably.

For example, when the energy infrastructure is rebuilt, it should be fuelled by renewables; when forests are restored, they should be protected from unsustainable logging; when homes are rebuilt, they should meet high energy-efficiency standards. Ukraine's future should be as green as possible.

We are heartened that many countries have already committed to contributing to the recovery of Ukraine. However, full responsibility for the damage must lie with the Russian Federation and its actors.

Hitherto, the international community has rightfully focused on increasing sanctions. Now is the time to begin establishing targeted accountability mechanisms.

Investigations into possible war crimes were launched by both Ukraine's general prosecutor and the chief prosecutor of the International Criminal Court (ICC) less than a week into the Russian invasion.

To date, authorities in at least a dozen other states have also opened universal jurisdiction investigations into alleged war crimes in Ukraine.

All efforts should strive to be as concerted as possible. Particularly with respect to the documentation of environmental harm, it would be advisable to prioritise the gathering of evidence and its preservation, because any delay or neglect could result in missed opportunities for effective documentation leading to charges and possible prosecution.

Statutes and ratification

As the ICC celebrates the 20th anniversary of the entry into force of the Rome Statute, it is presented with an opportunity to invoke for the first time the only provision addressing environmental crimes in the Statute under War Crimes, article 8(2)(b)(iv). Ukraine should also take the overdue step of acceding to the Rome Statute.

Ratification would give it the opportunity to seek cooperation and request assistance from the court as per the office of the prosecutor's 2016 Policy Paper on Case Selection and Prioritisation with respect to ecocide, which also constitutes a serious crime under Ukraine's domestic law. Ending impunity for ecocide would send a strong signal that causing serious harm to the environment is unacceptable in any war zone.

Existing institutions are rarely suitable when seeking accountability for military crimes, which is why, historically, tailor-made international bodies have been established for such purposes.

For instance, the UN Compensation Commission successfully processed claims and compensated entities for damages suffered as a result of Iraq's invasion of Kuwait in 1990-1991; the Independent Investigative Mechanism of Myanmar was set up in 2018 to collect evidence of the most serious violations of international law and to prepare cases for criminal prosecution.

Similar international bodies, with the aim of achieving liability and criminal accountability, should be created in the case of Ukraine.

A clean, healthy and sustainable environment is vital for Ukraine's future.

While the international community has a responsibility to aid Ukraine in its sustainable recovery plan, it must not overlook its obligation to invoke and, when necessary, reinforce international environmental norms and legal mechanisms to hold the perpetrators accountable.