In the Russian war of aggression against Ukraine, destruction of the environment has not just been an indirect result of the fighting; Russia has purposely targeted the environment to demoralize the Ukraine population. The Ukraine government has thus made the prosecution of environmental war crimes and the crime of ecocide a priority, and the international community is supporting the effort with funding and expertise.
It is in this context that Michael Scharf, the Joseph C. Hostetler-BakerHostetler Professor of Law and associate dean for Global Legal Studies, led an international team of experts that traveled to Rzeszow, Poland, from Sept. 30 to Oct. 5, to prepare Ukrainian judges and prosecutors to try Russian environmental war crimes and the crime of ecocide.
Mark Ellis, executive director of the International Bar Association (IBA), contacted Scharf last spring, requesting that he assemble an elite team of experts for this project. Scharf previously worked with the IBA to train the judges for the trial of Saddam Hussein. He has also trained judges for maritime piracy trials in Kenya, Mauritius and the Seychelles, and spent a semester as special assistant to the international prosecutor of the Cambodia Genocide Tribunal. And last year, Scharf made an amicus argument before the Appeals Chamber of the International Criminal Court, the first American to do so.
For the Ukraine project, Scharf recruited Paul Williams of AU, Milena Sterio of Cleveland State, Meg deGuzman of Temple, Michael Kelly of Creighton, Ignacio Mujic of VCG Abogados (Chile), and 2004 law alum Andre Monette from Best, Best & Krieger (D.C.) to join him. He then designed a five-day interactive curriculum that focused on the international and domestic law, modes of liability, and potential defenses related to the Russian attacks against Ukraine’s environment. The program covered a dozen case studies, including the destruction of the Kakhovka Dam, the poisoning of rivers and groundwater, the burning of Ukraine’s farmland and forests, attacks against the Zaporizhzhia Nuclear Power Plant, destruction of Ukrainian nature preserves and wildlife refuges, and even the intentional killing of thousands of dolphins off Ukraine’s coast.
“These crimes against Ukraine’s environment can be prosecuted under the country’s war crimes statute, which implements the Geneva Conventions,” Scharf explained. “But they can also be prosecuted under Ukraine’s unique ecocide statute, which criminalizes mass destruction of fauna, poisoning of water, or other actions causing an environmental disaster.”
27 Ukrainian prosecutors and judges, including a Justice of the Ukraine Supreme Court, participated in the week-long workshop in the small Polish town near the Ukraine border.
“These prosecutors and judges are paving new ground,” said Scharf. “Never before in history have environmental war crimes been prosecuted.”
It is expected that the Ukrainian environmental war crimes cases will set precedent for trials at the International Criminal Court and other countries around the world.