Acceso usuarios
The recent events leading to the destruction of the Nova Kakhovka dam and the ensuing environmental damages in the context of the war in Ukraine have revealed once more the tremendous impact of armed conflicts on the natural environment. Article 8(2)(b)(iv) of the Rome Statute of the International Criminal Court (ICC) criminalizes for the first time as war crimes intentional attacks launched with the awareness that they will cause severe, widespread and long-term damage to the natural environment, provided that this is clearly disproportionate compared to the military advantage anticipated. This provision suffers from serious limitations and ambiguities, and places on the prosecution a high burden relating to the objective and subjective elements that need to be proven. In particular, taking into account the significant evidentiary issues surrounding the case at hand, it cannot be simply assumed that conduct leading to the destruction of the dam qualify as an « attack » under the relevant provision and that the damage threshold, as well as the required intent, would be easily established at trial. Despite these difficulties, the ICC Prosecutor has the chance to explore the expressive potential of the only international environment-centered war crime and should seriously consider investigating it alongside other alleged international crimes in the context of the Ukrainian situation. An investigation and a trial at the ICC for environmental war crimes could positively contribute to the on-going debate on the protection of the environment through criminal law and to the development of a more ecocentric international and national judicial practice.
