УДК 344.22: 341.645.5

ORCID: 0009-0007-4730-8060

DOI 10.37566/2707-6849-2023-1(42)-12

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Olha BRYNZANSKA,

sholar consultant of the Section of analytical and legal work of the Criminal Court of Cassation of the Division of analytical assistance to Courts of Cassation and the Grand Chamber of the Supreme Court of the Department of analytical and legal Work of the Supreme Court, Candidate of Juridical Sciences

THE RESPONSIBILITY FOR DAMAGE TO THE NATURAL ENVIRONMENT UNDER THE STATUTE OF THE INTERNATIONAL CRIMINAL COURT

In the article is analyzed damage to the natural environment in the context of committing a war crime under the Statute of the International Criminal Court. As results of researches the Statute of the International Criminal Court and another acts of international law the author defines characteristics of the crime:

1) substantive (objective, «actus reus»): committing an act – an attack as act of violence against the enemy; the consequence – damage to the natural environment; the causal links between the attack and damage; the damage must be suitable for evaluation characteristics – «widespread, long-term and severe damage» and «clearly excessive in relation to the concrete and direct overall military advantage anticipated»;

2) subjective («mens rea») – intentionally launching an attack in the knowledge that such attack would cause the damage which would be clearly unproportional to military advantage, also perpetrator must be in the knowledge that an attack is acted in the process of armed conflict, but isn’t not necessarily to realize the kind of armed conflict – international of non-international; the perpetrator is the person which takes part in hostilities regardless of its legal status according to the acts of international law;

3) contextual – attack is committed within the context of an international armed conflict, also widespread, long-term and severe damage to the natural environment is the consequence of using of the certain methods or means of warfare or on its own became the method of warfare.

Also the article examines the correlation between the relevant provisions of the Statute of the International Criminal Court and Art. 438 (violations of the laws and customs of war) and Art. 441 of the Criminal Code of Ukraine, which provides for responsibility for ecocide.

Acts that are suitable for abovementioned characterics (substantive, subjective, contextual) can be qualified as a war crime in accordance with sp. «iv» p. «b» of p. 2 of Art. 8 of the Statute of the International Сriminal Сourt. Other acts, that, although they caused widespread, and possibly irreversible, damage to the natural environment, soils, water resources, animal and plant life, but in the absence of one or more of the abovementioned characterics, will not constitute a war crime in accordance with the sp. «iv» p. «b» of p. 2 of Art. 8 of the Statute of the International Сriminal Сourt. However, such actions may qualify under Art. 438 of the Criminal Code of Ukraine as «other violations of the laws and customs of war provided for by international treaties, the binding consent of which was given by the Verkhovna Rada of Ukraine, as well as the issuing of an order to commit such actions», because there is a severe violation of international law within the context of the provisions of articles 35, 51, 55 85 of Additional Protocol to the Geneva Conventions for the Protection of Victims of International Armed Conflicts. Also such actions may qualify under Art. 441 of the Criminal Code of Ukraine as ecocide – mass destruction of flora and fauna, poisoning of the atmosphere or water resources, as well as the commission of other actions that can cause an environmental disaster.

Key words: the Statute of the International Сriminal Сourt, war crime, widespread, long-term and severe damage, the natural environment, methods or means of warfare, proportionality, military advantage anticipated, other violations of the laws and customs of war, ecocide.

References

Ovchynnikov O. Ekolohichnyi teroryzm rosiiskoi armii v Ukraini. EkoRaion. 08.04.2022. URL: https://eco.rayon.in.ua/topics/503988-ekologichniy-terorizm-rosiyskoiarmii-v-ukraini

Radzii V. Ekotsyd: naslidky i tsina rosiiskoi ahresii. EkoRaion. 15.04.2022. URL: https://eco.rayon.in.ua/topics/506221-ekotsid-naslidki-i-tsina-rosiyskoi-agresii

Rymskyi statut Mizhnarodnoho kryminalnoho sudu: mizhnarodnyi dokument vid 17.07.1998. URL: https://zakon.rada.gov.ua/laws/show/995_588#Text

Teoriia ta praktyka mizhnarodnoho kryminalnoho prava: pidruchnyk / Zelinska N. A., Andreichenko S. S., Dromina-Volok N. V., Koval D. O. Odesa: Feniks, 2017. 582 s.

Commentary on the Law of the International Criminal Court / Abdou M. etc.; Editor Klamberg M. Brussels: Torkel Opsahl Academic EPublisher, 2017. 775 r.

Elements of Crimes. International Criminal Court. 2011. URL: https://www.icc-cpi. int/sites/default/files/ElementsOfCrimesEng.pdf

Dodatkovyi protokol do Zhenevskykh konventsii vid 12 serpnia 1949 roku pro zakhystu zhertv mizhnarodnykh zbroinykh konfliktiv: mizhnarodnyi dokument vid 08.06.1977. URL: https://zakon.rada.gov.ua/laws/show/995_199#Text

Hemptinne de J. Ecocide: an Ambiguous Crime? Blog of the European Journal of International Law. URL: https://www.ejiltalk.org/ecocide-an-ambiguous-crime/

International Criminal Court. Statement to the 20th Assembly of States Parties to the Rome Statute of the International Criminal Court. December 2021. URL: https://asp. Icc cpi.int/sites/asp/files/asp_docs/ASP20/ASP20.GD.StopEcocide.07.12.pdf