Can Ukraine hold Russia accountable for environmental crimes?
Crimes related to the environment have rarely been prosecuted, but the war in Ukraine could set a precedent.
As forensic investigators in Ukraine uncover evidence of killings that may amount to war crimes, experts of a different kind are at work to document the effect of Russia’s war on the environment.
Ukraine’s ministry in charge of environmental protection said in a briefing last month that destroyed military equipment and ammunition, as well as exploded missiles and air bombs, pollute the soil and groundwater with chemicals, including heavy metals.
Nickolai Denisov, deputy director of the Geneva-based Zoï Environmental Network, is part of a team mapping incidents of war-related damage or disruption.
By the end of April, the group had reported 3,300 incidents in some 600 settlements, including cities, towns and villages.
“[The situation] of course is very serious,” Denisov told Al Jazeera. “Above all, there’s the impact on people. But there’s also that on the environment.”
Environmental pollution has troubled Ukraine over the years.
The former Soviet country runs 15 nuclear reactors, more than 1,600 chemical, petrochemical and pharmaceutical enterprises, and 148 coalmines.
It was also the world’s sixth-largest exporter of wheat and a key global producer of soft commodities, including maize and sunflower oil.
According to Ukraine’s State Emergency Service, since the Russian invasion began on February 24 until April 27, 79,169 explosive devices, 1,955 aircraft bombs, and 567.4kg of explosives were used in a surveyed area of 13,473 hectares (33,293 acres).
While the cost of rebuilding Ukraine’s cities could be as high as $600bn, according to an estimate by the central government in Kyiv, the State Environmental Inspectorate says the damage inflicted by the pollution of land resources alone amounts to $77m.
“The scale of the war and the number of risks is so enormous – this is completely different from anything we have seen in Europe for many years,” Denisov said.
Prosecuting Russian President Vladimir Putin and his officials could open the door to reparations, but crimes related to environmental damage have rarely been brought to a court of law.
The conflict in Ukraine could change that, experts say, and mark the start of stronger legislation on the links between conflict, environmental harm, and human suffering.
Mapping environmental damage
Documenting and mapping possible environmental crimes is considered a stepping stone to ensuring accountability.
Ukrainian and international organisations – including Zoï Environmental Network, Ecoaction, CEOBS, PAX, Environment-People-Law, Truth Hounds and OSCE, to name a few – are using open source information, satellite images, government bulletins and media reports to piece together evidence.
Natalia Gozak, director of the Kyiv-based Ecoaction, told Al Jazeera that the nonprofit fact-checked 200 incidents that could amount to environmental crimes.
The information will be handed to a governmental working group that includes the ministry of environment, military experts, and prosecutors, among others, whose aim is to prepare a case to be brought before an international court.
Other organisations said the United Nations Environment Programme will also receive their data.
“The idea is to claim reparations, and to do that Ukraine must take certain steps,” Gozak said.
Mapping will indicate where to focus on-the-ground analysis once the conflict subsides.
Ukraine is also drafting new legislation that sets a common framework for the economic valuation of damages to natural resources, Gozak added.
In 2014, Putin launched an offensive against Ukraine’s coal and steel producing area – the Donbas – firing artillery into the fertile stretch of land and paralysing many aspects of environmental protection.
This included the management of coalmines. Pumping, which was necessary to prevent toxic water from filling the mine shafts and polluting ground and drinking water, was halted.
In 2015, the UN estimated the cost of high-priority environmental rehabilitation in Donbas at $30m, with an additional $40m to restore water supply and sanitation.
Putin has recently refocused Russia’s nationwide invasion on this region, home to about 4,500 mining, metallurgical, and chemical enterprises.
“We estimate the problem to be much widespread and dramatic now,” Gozak said.
Contaminated water may also afflict Russia and Belarus, which share the Dnieper River with Ukraine.
And waging war in a nuclear country poses a risk to those downwind of any radioactive release.
Indirectly, Russia is already experiencing collateral damage, Zoï’s Denisov said.
Fierce forest fires recently broke out in Siberia, with nearly 300 incidents reported in the Omsk region last month, “but Russia’s capacity to put them out is very low now because it is focusing is in the west of the country”, where oil depots and other installation have been targets in retaliatory Ukrainian attacks, he added.
Bringing the evidence to court
Reparations for environmental damage have been rare.
One notable exception relates to Iraq’s 1990-91 invasion of Kuwait. After the Gulf War ended, the UN concluded that Iraq was liable for environmental and public health damage.
Russia, a UN Security Council veto-wielding member, is unlikely to experience similar treatment, Carroll Muffett, head of the Washington, DC-based Centre for International Environmental Law (CIEL), told Al Jazeera.
While the International Criminal Court would be the natural place to prosecute war crimes and other grave offences, Russia does not recognise the court’s jurisdiction.
“What we’ve seen repeatedly in recent decades in the wake of conflicts of this kind is that international tribunals can arise from the circumstances of an individual conflict,” Muffett said, citing the 1994 Rwandan genocide and Balkan conflicts in the 1990s as examples.
Environmental crimes could therefore be part of broader trials addressing possible Russian war crimes.
Yet, for Ukraine to prove that environmental damage has taken place as a consequence of military actions conducted by Russia, Kyiv will need to present baseline data.
According to Ecoaction’s Gozak, in protected areas and agricultural land this monitoring has taken place.
“But in the case of chemical facilities, it could be much more complicated,” she said, as soil and groundwater quality controls were often unavailable.
Additionally, the Geneva Convention and other international legislation around environmental damage in armed conflict are careful when it comes to the principle of proportionality and “military necessity”.
Proving that military action was unnecessary and that the damage is punishable “is a very broad loophole and can be very difficult to meet”, Muffett said.
But if the invasion of Ukraine is recognised as “an inherently and demonstrably illegal war”, “what is a legitimate military objective becomes fundamentally [irrelevant]”, he added.
New safeguards for the environment
A decade-long UN project to enhance the legal protection of the environment in relation to armed conflicts has been met with considerable opposition from member states, but the invasion of Ukraine is highlighting the threat that war poses and the weakness of existing legal frameworks that should protect the environment.
“This is about setting new normative standards around how the environment should be protected going forward,” Doug Weir, policy director at the UK-based Conflict and Environment Observatory (CEOBS), told Al Jazeera.
A project undertaken by the UN International Law Commission (ILC) since 2013, known by its acronym PERAC – Protection of the Environment in Relation to Armed Conflicts – has so far identified 28 draft principles that clarify the legal framework on a wide array of topics, from environmental protection during the occupation and post-conflict assessment to conduct in hostility and state accountability.
PERAC is set to conclude this year, with a vote at the UN General Assembly.
“This the biggest deal for the legal framework on conflict and the environment since the 1970s, in the wake of the Vietnam war,” Weir said.
While the principles are non-binding and will not apply retroactively to Ukraine, the conflict may foster the political will necessary for persistent objectors – including the United States, France, the United Kingdom and Canada – to embrace the principles and warrant better protection in future conflicts.
“What we’re seeing now is a long-overdue recognition that the environment is important,” Weir said.