Could Russia Be Prosecuted for Environmental Harm in Ukraine?

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Could Russia Be Prosecuted for Environmental Harm in Ukraine?

| Updated: March 29, 2022 10:02

Recently, fires broke out in the forest surrounding the Chernobyl nuclear plant in Ukraine. Satellite imagery taken by the European Space Agency showed at least seven fires burning within the plant’s exclusion zone and Ukrainian officials warned that it would be difficult to put them out because the area is controlled by Russian troops.

Environmental damage has proved more immediately visible during the war in Ukraine than in other conflicts, with growing awareness of its importance supported by improved monitoring and the ability of social media to relay news much faster. But that has served only to draw attention to the weakness of the legal framework that should prevent it.

In Ukraine, the risks are heightened because the country is densely populated and heavily industrialised. The Environmental Peacebuilding Association says attacks on civilian and military sites have already caused major fires in fuel-storage areas, while fighting in Kharkiv has ruptured a gas pipeline. It also claims that widespread Russian attacks on civilian infrastructure, including the targeting of water infrastructure, “are clear violations of international law”.

Anxiety about a nuclear disaster is also high. Russia is occupying Chernobyl, where, until recently, it refused to replace the exhausted workers who had been on duty since Russia seized the site. In early March, Russian troops also attacked Zaporizhzhia nuclear power plant in the south-east of the country. Ukraine has reported damage to two nuclear waste facilities, while the conflict has disrupted day-to-day monitoring of air quality and radiation.

One Ukrainian scientist warned that the overall environmental risks could be “more deep and dangerous” than the Chernobyl disaster.

These are not abstract issues. Environmental destruction has a direct effect on the Ukrainian population’s health, food supply and livelihood. And the risks are not limited to Ukraine: the price of wheat is already soaring globally because of the disruption to Ukrainian agriculture, while air and water pollution cross borders. A nuclear disaster could have truly international implications.

“It’s understandable that people focus on the direct humanitarian impacts,” says Doug Weir, research and policy director of the Conflict and Environment Observatory (CEOBS). “But actually environmental impacts also have serious humanitarian impacts.”

What can be done?

At the UN Environment Assembly meeting in Nairobi at the end of February, 108 civil society organisations from across the world highlighted the serious environmental risks the invasion poses and called for support to monitor and address them. A separate open letter by the Environmental Peacebuilding Association calls on the international community to investigate and monitor potential violations of international environmental and human rights law, and to ensure accountability.

The International Criminal Court (ICC)’s Office of the Prosecutor has announced it will open an investigation into crimes perpetrated in Ukraine. But while the court theoretically has jurisdiction over the crime of “intentionally launching an attack in the knowledge that such attack will cause … widespread, long-term and severe damage to the natural environment”, it has never brought a prosecution.

Rachel Killean, a justice and conflict specialist at Queen’s University Belfast, told openDemocracy that it may be possible to bring a case “by linking environmental destruction to attacks against civilian property (a war crime) or a widespread and systematic attack on a civilian population (a crime against humanity)”. The ICC has previously indicated that it would consider such an approach in principle.

A longer-term solution would be to reform the ICC’s statute to explicitly include environmental crimes, which is the goal of the Stop Ecocide campaign.

Action could also be taken domestically. The occupation of Zaporizhzhia nuclear plant has already been described by the Ukrainian Prosecutor General’s Office and the Ukrainian security service as the “commission of an ecocide”, requiring criminal investigation. Ukraine is one of only a few states, alongside Russia, to have criminalised ecocide in law.

The lifecycle of conflict

Weir, of the conflict and environment monitor, CEOBS, is pinning his hopes on a set of new international guidelines to protect the environment during wartime. The UN has been working on these for over a decade and is due to vote on them this autumn.

The International Law Commission’s PERAC project has so far identified 28 draft principles, covering topics including the rights of Indigenous peoples, use of natural resources, corporate conduct in conflict zones and the effects of war on marine areas.

Weir sees this as a “progressive development” of the law protecting the environment rather than a game-changer, noting that much of it is modelled on existing international humanitarian law, which many states have already signed up to. “It’s a new way of thinking about the whole lifecycle of conflict,” he says.

But analysis by CEOBS shows that a number of influential states are blocking any binding obligations, with many also objecting to efforts to merge different areas of law. Weir says the US, France and UK in particular have persistently objected to international humanitarian law principles on the environment, “because they want the freedom to use nuclear weapons”. Canada wants all measures that would protect the environment during a military occupation to be deleted from the guidelines.

Russia did not express a view at this stage of the process. But it has earlier stated that it views the environment as a lower priority than civilian protection, and views the current legal framework as adequate.

Weir is realistic about what these new principles can achieve. “International humanitarian law is not particularly effective in protecting civilians in conflict, and the environment is of a lower order of priority. But along with recently updated Red Cross guidelines, if you start to embed more environmental awareness and understanding within the militaries, [among] their lawyers, then the environment is going to feature more heavily on the decisions that they make.”

While few countries welcome all the principles, the process has been strongly supported by Spain, Portugal, El Salvador, Lebanon and the Nordic states. The guidelines, Weir adds, should also help make sure the environment features in post-conflict recovery and reconstruction.

Previous conflicts have spurred significant improvements in environmental protection. The Vietnam War, where Agent Orange was used to eliminate forest cover and crops, led to amendments of the Geneva Convention and the ratification of a new Environmental Modification Convention. “These moments where you have environmental damage in conflicts and they are very visible are the moments where you tend to get policy change. And I think they’ve been pretty visible in the case of Ukraine,” Weir says.

This article was published by The Wire

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