During the “United for Justice” conference held from March 3-5 in Lviv, one of the discussion sessions focused on “Accountability for War Crimes against the Environment.” Speakers at this session included the Minister of Environment and Natural Resources Ruslan Strylets, and a number of international experts in the field.
A key aspect of the minister’s speech was the description of the damage caused. According to the minister’s data, as of the 375th day since the start of the full-scale invasion by the russian federation, 2,333 cases of environmental damage have been recorded. The damage is estimated at 1,912 billion hryvnias (867 billion hryvnias for soil pollution, 988 billion hryvnias for air pollution, and 57 billion hryvnias for water pollution). The minister spoke about the damage caused to forests (including the results of fires), protected natural areas, biodiversity, and mineral resources. The issue of radiation safety in Ukraine and Europe was also raised, noting that the losses from the 35-day occupation of the Chernobyl nuclear power plant and the exclusion zone amount to more than 3.2 billion hryvnias. The minister also talked about the levels of carbon dioxide emissions into the atmosphere as a result of illegal actions by the Russian Federation, which virtually undermines all efforts of the international community in the fight against climate change, global warming, and the reduction of CO2 levels.
The minister also spoke about the cooperation between the Ministry of Environment, Ministry of Foreign Affairs, Office of the Prosecutor General, and the Security Service of Ukraine in exchanging information about environmental damage. The main goal of this cooperation is to establish a unified system of the mentioned data.
Also, seven approved methodologies for calculating damages to soil, air, water bodies, forests, and subsoil caused by war were mentioned. As the main communication channel with the public regarding environmental crimes during the war, the minister named the collection of data on environmental damage through the mobile application “EcoDiia.”
Regarding the position of international experts, some of the key statements were:
The reasons for the need to investigate crimes against the environment include, first and foremost, the need to protect Ukrainians, prevent the commission of similar crimes in the future, and the possibility of holding those responsible accountable. The first step towards obtaining compensation is to clearly establish the fact of the damage that has occurred. The investigation of war crimes against the environment in Ukraine can now prevent the commission of ecocide or war crimes related to environmental damage in other armed conflicts or wars in the future.
Environmental damage was ignored before the war in Ukraine, both nationally and internationally. Environmental crimes are the least frequent among criminal cases heard by international or national courts. There are no judicial decisions relating to environmental damage in the practice of the International Criminal Court or criminal tribunals. This neglect appears to have been due not to a lack of evidence or adequate legal norms, but rather because the environment was not considered a priority at that time. Ukraine has the opportunity and obligation to set a precedent for holding those responsible for environmental destruction during wartime accountable. According to experts, the Office of the Prosecutor has a clear position aimed at punishing those responsible for environmental damage since the aggression.
Environmental damage can be divided into three types: damage to resources, damage inflicted on infrastructure resulting in environmental harm and indirect environmental damage.
Despite the fact that the existing legal regulation of this issue is far from perfect, it is sufficient, including the provisions of the Geneva Convention, Protocol I to it, the Rome Statute, and other provisions of international humanitarian law. There is a view that the environment is a civilian object, and therefore all provisions related to civilian objects apply to environmental damage.
It is important to effectively apply Article 441 of the Criminal Code of Ukraine “Ecocide”. The best combination seems to be the application of the “Ecocide” crime under the Criminal Code together with the provisions of international humanitarian law. Therefore, environmental crimes should be prosecuted!
It is fundamental to understand the responsibility of the aggressor for the damage, including to the environment. The occupying power also has an obligation to prevent harm and violations. A special tribunal should be established to punish such perpetrators.
It should be noted that crimes against the environment can be committed directly against the environment or other crimes may result in environmental damage as a side effect. In this aspect, there is a very close connection between crimes against the environment and genocide.
States should now focus on formation of a clear understanding of the norms of law dedicated to crimes against the environment. The need to improve such legislation applies not only to states in conflict but to all states without exception.
Criminalizing ecocide at the international level is an issue that is more actual than ever. Currently, it’s important to complete the formulation concept of “Ecocide” which has the potential to be included in a new directive of the European Union. The Rome Statute must be supplemented with this war crime. Including ecocide in the list of crimes under international law will have a direct impact on the behavior of warring parties in future conflicts, it will have a preventive effect. Moreover, in the calculation of damages and compensation, environmental damage would not be overlooked.
The international community is currently watching Ukraine, and our country must become a pioneer in investigating crimes against the environment at the national and international levels.
EPL Opinion. Data from the Ministry of Environment indicates thousands of environmental damage caused by full-scale invasion, while the General Prosecutor’s Office has opened dozens of criminal cases under Article 441 «Ecocide» and Article 438 «Violation of Laws and Customs of War» of the Criminal Code related to environmental damage. Therefore, the majority of cases of environmental destruction by the enemy should also be the subject of either criminal prosecution or civil suits seeking compensation for the damage. The scale of environmental destruction by the enemy has long since exceeded the country’s borders and has become the subject of discussion at the highest levels. At the G7 meeting at the end of 2022, the President of Ukraine presented a peace plan that includes, among other things, the cessation of ecocide by the aggressor in Ukraine. Therefore, the crime of ecocide should be investigated by Ukrainian law enforcement agencies. The number of such crimes will continue to rise, as a vast number of territories are still inaccessible due to landmines, active military operations, etc. Additionally, current methods for calculating damage do not include the loss of ecosystem services that provide natural complexes due to the war. Therefore, the Minister’s mention of the need to introduce the concept of ecosystem services into national legislation in his speech was very relevant.
It is crucial that environmental damage is included in the mandates and procedures of all international organizations and mechanisms that have been announced. The International Register of Damage should include the possibility of inputting data on environmental damage in Ukraine. The International Compensation Commission should also have the mandate to consider cases related to environmental damage, as was the case with the Compensation Commission in the Iraq.
At the national level, with the help of Ukraine’s international partners, effective and prompt investigations of acts of ecocide should be ensured, evidence of such cases should be collected and documented. It is also necessary to address the issue of the fate of the trillions of losses identified by the Ministry of Environment and mechanisms for verifying this data, collecting additional necessary evidence, and developing guidelines for the State Environmental Inspection and law enforcement agencies regarding the mechanisms of compensating for these losses through the national judicial system.
A very important practical aspect of these processes is the collection of data and evidence, documenting damage, securing reliable data on the baseline environmental condition. In these questions, without the help of international partners, we will not be able to ensure the aggressor’s unconditional responsibility for the use of the environment for military purposes by the aggressor’s army. It is not too late to request and receive such assistance (expert, technical, financial, organizational, etc.), as the consequences and facts of ecocide will be discovered for a long time after the end of war and Ukraine’s victory.
Conclusion. Holding accountable for environmental war crimes is an important step towards preserving and ensuring the safety of future generations, as well as upholding the right to a safe and healthy environment for current and future generations. So, discussions on holding accountable for environmental war crimes are more relevant than ever, and civil society should become an important participant in such discussions with government bodies and international institutions.