War crimes

The policy clarifies how environmental harm can be investigated as war crimes, but it also highlights persistent structural weaknesses in the Rome Statute, particularly the ambiguous standard in Article 8(2)(b)(iv). This provision applies only in international armed conflicts (IACs), such as the war between Russia and Ukraine, and requires proof that an attack was launched with knowledge that it would cause ‘widespread, long-term and severe’ environmental damage. Yet the Rome Statute and its Elements of Crimes offer no definition of these terms, leaving their interpretation to inconsistent state practice and guidance from authoritative yet non-binding instruments, such as the ICRC Guidelines on protection of natural environment in armed conflict, in absence of any jurisprudence.

The new policy does little to resolve this gap: while it encourages the use of scientific evidence and cumulative-impact analysis, it cannot overcome the fact that the threshold is cumulative, undefined, and extraordinarily high, making prosecutions under Article 8(2)(b)(iv) still highly unlikely. In this sense, the policy exposes, rather than cures, the fundamental indeterminacy that has long rendered this war crime largely dormant.

In contrast, war crimes committed in a NIAC may encompass conduct that involves or results in environmental harm, provided the act occurs ‘in the context of and is associated with’ the armed conflict, meaning the conflict must play a substantial part in the perpetrator’s ability, decision, purpose, or manner of committing the crime.⁴ Although article 8(2)(b)(iv) applies only in IACS, the policy makes clear that numerous NIAC war crimes, such as destroying or seizing the property of an adversary without military necessity (art. 8(2)(e)(xii)), unlawful deportation or transfer (art. 8(2)(e)(viii)), or cruel treatment (art. 8(2)(c)(i)), may be committed by means of or through acts causing environmental damage, including pollution, destruction of land, contamination of water sources, or seizure of natural resources.

The same environment-related war crimes available in NIACs also apply in IACs to the extent that the underlying conduct is criminalised, meaning that in addition to the single environment-specific war crime in IACs, a range of environment-related war crimes may also arise.

Such environmental harm is relevant both to establishing the actus reus (the act or conduct that is a constituent element of a crime), where the destruction of land, water, crops, or other natural resources constitutes prohibited ‘property’ or contributes to coercive displacement, and to assessing gravity, where the scale, nature, and long-term ecological impact of the damage may increase the seriousness of the offence. Accordingly, even absent a dedicated environmental war-crime provision in NIACs, environmentally destructive conduct can fall squarely within the Statute where it forms part of prohibited acts and meets the contextual nexus to the armed conflict.