Ecocide in National and International Criminal Law: current challenges and prospects for legal regulation

Abstract

The article examines the current challenges and prospects of legal regulation of ecocide in national and international criminal law. The author analyzes the problems of prosecution for ecocide in national criminal law and the prospects for such liability in international criminal law. The authors emphasize that the armed aggression of the terrorist state of the Russian Federation against Ukraine has had a devastating impact on the environment, which will take decades to restore. Russian attacks on Ukrainian oil depots, strikes on the territory of the Kharkiv Institute of Physics and Technology with its nuclear facility, the death of several million chickens at the Chornobaiv poultry farm, and the mass death of dolphins in the Black Sea are qualified as ecocide. The destruction of the Kakhovka hydroelectric power plant dam is qualified as ecocide and a violation of the laws and customs of war. The evolution, concept, and composition of ecocide are analyzed.
 Having found its legislative consolidation in the national criminal law (Article 441 of the Criminal Code of Ukraine), ecocide has not been enshrined in international criminal law. It is not recognized as a crime either in the Rome Statute of the International Criminal Court or in any other international legal act. As of today, Russian crimes against the environment can be investigated by the International Criminal Court as war crimes. The authors of the article emphasize the need to include the crime of ecocide in the Rome Statute, since serious damage to the environment during armed conflicts is still to some extent covered by the provisions of the Rome Statute, but such damage caused in peacetime falls outside the jurisdiction of the International Criminal Court.
 The authors of the article note that it is important not only to punish the racists for all crimes of ecocide committed in Ukraine since 2014, but also to force the aggressor state to compensate for all environmental damage caused. When creating a compensation mechanism, we must take into account the international practice of compensation for environmental damage caused by military actions, in particular the practice of the International Court of Justice and the historical experience of creating special compensation bodies (in particular, the experience of the United Nations Compensation Commission (UNCC), 1991-2022). The future compensation mechanism should be based on the «ecosystem services approach», which will significantly increase the amount of reparations to be paid by the Russian Federation to Ukraine. To ensure legal regulation of the concept of ecosystem services, it is necessary to develop and adopt the Law of Ukraine «On Ecosystem Services» and regulations aimed at its implementation (primarily, methods of inventory and assessment of ecosystem services).