Professor Rinata Kazak of Yaroslav Mudryi National Law University in Ukraine delivered a presentation at the Columbia Law School about the inclusion of ecocide in domestic and international law.

On Monday, November 20, the Sabin Center for Climate Change Law invited Professor Rinata Kazak to deliver a presentation entitled “Is Russia’s Invasion of Ukraine Ecocide?” on the environmental and legal implications of the war in Ukraine. Professor Kazak holds a PhD in law and is an associate professor in the Department of Legal History at Yaroslav Mudryi National Law University in Ukraine. Due to the ongoing war, she has relocated to Sweden and is a visiting researcher at Linkoping University.

Kazak opened her presentation by reflecting on her personal standards of objectivity within the context of Russia’s invasion of Ukraine. As she spent a period of time in a bomb shelter and witnessed the bombings from her own apartment window, the war personally affects her and her work deeply. The ecocide and human loss in Ukraine has had a direct impact on her, so Kazak admits that the information she delivers will not be truly neutral.

However, she believes that the issue of environmental degradation in Ukraine has great relevance for non-Ukranians as well. As soil continues to be contaminated by war actions, barley and wheat production, among other crops, has been severely damaged. The detriment to Ukrainian agriculture contributes to a decrease in food supply on a national and international scale.

According to Professor Kazak, the term ecocide is broadly defined to be unlawful acts committed with the knowledge that they will probably cause severe and lasting damage to the environment. The use of the word is primarily associated with the military, having arisen after the use of Agent Orange, a strong herbicide, in the Vietnam War. However, ecocide exists in peacetime as well, such as with the use of petroleum products or fossil fuels.

After World War II, the Nuremberg trials introduced the term “genocide,” which was subsequently adopted into international law in 1948 as a war crime. Will the Russian war on Ukraine be the catalyst of including ecocide into international law? 

Kazak responded to this question by first examining how ecocide has been codified in domestic criminal law. The penal codes of nations formerly in the Soviet Union, such as Tajikistan, Georgia, and Armenia, contain nearly identical anti-ecocide laws. According to Kazak, these articles all criminalize mass plant, animal, atmosphere, or water destruction, among other environmental damages. For over twenty years, both Ukraine and Russia have outlawed domestic ecocide.

The International Criminal Court (ICC) lists four crimes in its Rome Statute: genocide, crimes against humanity, war crimes, and crimes of aggression. There are two major routes to including ecocide in the Rome Statute: either making it the fifth crime or “greening” existing crimes by including the environment in the “stipulation of what constitutes a crime.”

Within the second option, ecocide could be added to Article 8, expanding on the current definition of war crimes, but Kazak fears this might limit the scope of prosecution for environmental damage strictly to wartime. Alternatively, ecocide could be included in Article 7 as an extension of crimes against humanity, which would be a “pivotal moment for environmental protection,” says Kazak.

However, the ratification of the Rome Statute is a deeply political issue, and widespread cooperation would be required to truly enforce restrictions on ecocide. States that are not parties of the Rome Statute can not be held responsible for crimes, and Russia is no longer a party. Due to conflicting opinions within the government, Ukraine is a signatory that has not yet ratified the statute. Some representatives have expressed concern that their armed forces cannot be prosecuted under the Rome Statute.

At this point, Professor Kazak believes that implementing ecocide in the Rome Statute is “nearly impossible,” so she advocates for its inclusion at the domestic level. This is primarily due to a lack of “coherence and understanding” of ecocide between political leaders. Countries that do prioritize codifying ecocide into law should make every effort to implement it into their penal codes.

Are there alternate routes to codifying ecocide internationally? One audience question involved the feasibility of establishing ecocide in international law as part of the Genocide Convention. While Kazak agreed that this would be greatly useful in increasing global recognition of ecocide, using the Genocide Convention to codify ecocide has its own limitations. She claimed that by doing so, the environment would be seen as a sort of collateral damage, viewed only through its impacts on humans. She and other leaders in law wish to change this narrative, framing the earth as an entity needing protection in and of itself.

While ecocide, especially in the context of Ukraine, has the potential to devastate natural resources, Kazak urged the audience that progress is certainly possible. Quoting Neil Gaiman on the lessons we learn from fairy tales, Kazak said that “dragons can be beaten,” and the dragon of environmental damage can and must be defeated.

Columbia Law School via Flickr