Environmental Damage as a War Crime

Tuesday, 21 February, 2023

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Anastasia Kucher

Editorial assistant based in Poland

More than 2,000 cases of environmental damage have been identified in Ukraine as a result of the war, according to official data, with some 20 per cent of the country’s natural areas affected by the conflict.

The International Criminal Court (ICC) recognises environmental destruction as a war crime, and there are also provisions in the criminal code of Ukraine that relate to crimes against the environment. Article 441, for example, defines “ecocide” as the mass destruction of flora or fauna, poisoning of the atmosphere or water resources, and other actions that have or may cause an environmental disaster. 

Olha Melen-Zabramna, the head of the legal department of the international charitable organization Environment – People – Law, told IWPR contributor Anastasia Kucher that documenting and prosecuting cases of environmental destruction presented Ukraine with a variety of challenges.

IWPR: How many environmental crimes are you currently aware of?

Melen-Zabramna: We receive information from official sources, such as the prosecutor general’s office and the ministry of the environment. In the beginning of the full-scale invasion the prosecutor general's office documented about 20-30 environmental crimes related to military aggression. The ministry of the environment, in turn, claimed about 200 cases of ecocide, but we are sceptical about this information. It is up to the investigating authorities to classify the acts as a crime, and up to the court to determine the punishment. 

Which organisations document these crimes and what do they do with the evidence?

First and foremost are those that are obliged to do so by law - the state environmental inspectorate and commissions set up under military administrations to visit the sites of missile strikes, for example. Then there are organisations in Ukraine and abroad. For example, our organisation Environment-People-Law keeps a register of crimes against the environment from available sources. There are several international organisations which also use information from social networks and satellite images, and submit this to the ministry of environment and other institutions.

In addition, Ukraine has appealed to international organisations under the auspices of the UN for help in recording crimes against the environment and determining damages, so these organisations are also partially involved or preparing to join. We also know that when damage is caused within the boundaries of nature reserves, the administrations of the protected areas keep records.

What are the chances for Ukraine to prosecute these crimes? 

Existing institutions are rarely suitable for prosecuting war crimes such as environmental crimes, so special international mechanisms have been created for this purpose. There are plans to set up a separate tribunal and compensation commission for Ukraine, similar to the one set up for Kuwait and Iraq in 1991 [after the Iraqi military blew up Kuwaiti oil wells, leading to eight months of fires] and whether this commission will deal with the issue of environmental damage is something that needs to be investigated. We know that our ministry of foreign affairs has been working on the concept of this commission, so there is room for compensation for environmental damage.

Also, we do not exclude the possibility that Ukraine will raise the issue under Article 8 of the Rome Statute, which says “intentionally launching an attack in the knowledge that such attack will cause widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated” is a war crime.

The Rome Statute has a provision on environmental crimes. Can Ukraine now accede to it? And what should experts do to bring these crimes to the attention of the ICC? 

This issue is quite complicated. Firstly, some of the places where it is possible to document crimes are dangerous and mined. There is no access, so there is no way to document anything. Another aspect is that it would be good to do laboratory analysis, to take samples, but again the question is who is going to finance it and who is going to do the laboratory analysis? Do the laboratories in Ukraine have the technical capacity to determine the full list of pollutants that may be present in bomb craters?

 At the moment it is very difficult, we have tried to take measurements of soil analysis for analysis, tried to give them to different laboratories. The first problem is bureaucracy, secondly it is quite an expensive process, and thirdly the laboratories do not know what substances to measure. They measure general things like background radiation. There are difficulties with the technical equipment of the laboratories, difficulties with the fact that this is a huge number of cases and not all laboratory tests can be measured. 

When we give the results of the tests, the court may ask us what happened previously. Are you sure that the pollution was caused by the war in 2022, or do you have measurements from 2021? We need a lot of baseline data, which is a problem because monitoring was and is not at a high level. It is done by different institutions, not qualitatively because there are not enough places to monitor. 

I think we will ratify [the Rome statute] in the near future, this issue is not off the table. Even though Ukraine has not ratified the Rome Statute yet, the Rome Statute provides that even without ratification, a state may recognise the jurisdiction of the court in certain cases by filing a declaration, and that is what Ukraine did. 

Can these crimes be prosecuted in Ukraine or is ICC involvement key? 

There must be prosecution at two levels - the national level and the international level. These levels can be complementary. Since 2014 people have been suing and there are decisions that have not yet been implemented for cases relating to the effects of military action on the health of human beings.

We will probably be able to fulfil them in the near future, based on international standards. In particular, the procedures that will be developed to finance compensation for damages, to find sources from which to compensate for damages. In the last week or two there has been a lot of information that a legislative framework is being created in Canada and the US to allow confiscated Russian assets to be transferred for reconstruction.

What is the estimated amount of environmental damage caused since the beginning of the full-scale invasion?

At the moment, the damage is estimated as hundreds of billions of hryvnias.  The numbers are approximate because it is not possible to get everywhere. The ministry of the environment is working on this issue. Their website is updated almost every week with information about environmental damage. They have also launched the EcoThreat app, which provides reliable information on damage and allows people to report environmental damage they have witnessed.