Accountability for Environmental Destruction in Ukraine During the War

We, Ukrainian NGOs and other signatories to these principles, represent a wide range of individuals and communities that support victims of Russian aggression, document international crimes and implement awareness initiatives in the context of Russia’s armed aggression against Ukraine.

With this position paper we note the fact that Russia’s and Russian Armed Forces military and political leadership’s actions causing damage to the environment within, and outside Ukraine constitute a violation of international law and bear characteristics of several crimes.

We note that the military and political leadership of the Republic of Belarus also perpetrates, aids and abets criminal acts against the Ukrainian environment. The Republic of Belarus has been facilitating the commission of crimes against the environment, in particular, by providing their territory for the Russian Federation’s use to commit aggression against Ukraine since 2014.

We draw attention to the fact that the actions of the military and political forces of the Russian Federation in the course of hostilities against Ukraine, including the actions that cause irreparable damage to the Ukrainian environment, should be interpreted as a violation of, inter alia: Protocol Additional to the Geneva Conventions (1949) and Relating to the Protection of Victims of International Armed Conflicts (hereinafter – Protocol I); Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land; the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques; customary international humanitarian law (including principles 9, 13 enshrined by the International Law Commission (ILC) in it’s codification of customary law titled “Protection of the environment in relation to armed conflicts” (2022).

We emphasize the particular difficulty of distinguishing between the facts of criminal damage to the environment during the war (for example, the explosive demolition of the Kakhovka hydroelectric power station dam) under the articles of the current Criminal Code of Ukraine, and the correct qualification of actions against the environment as violations of the international humanitarian law, and the attribution of environmental damage to crimes under various paragraphs of Article 8 of the Rome Statute.

We emphasize the need for a comprehensive use of international and national law. In particular, the application of the relevant provisions of the Criminal Code of Ukraine in the accountability for environmental damage. At the same time, justice at the national level should be administered in compliance with high standards of the rule of law, legality, and international fair trial standards.

We emphasize that one of the key elements in effective accountability for environmental damage in armed conflict is the documentation, collection of evidence and quantification of damages. This process requires significant financial and human resources, and must be carried out in a timely, complete manner and in accordance with the standards of proof under international law. As of now, the damage caused to the Ukrainian environment is not fully and properly registered, and this should be immediately remedied primarily through the intensification and coordination of responsible state authorities’ efforts and international assistance.

With regret we note that so far no effective international mechanism has been established to stop or minimize the environmental damage during the war. At the national level also no measures are being taken to minimize or prevent damage to the environment during the war in Ukraine.

We emphasize that by Resolution A/76/L.75, adopted on July 28, 2022, the UN General Assembly: 1) recognized the right to a clean, healthy and sustainable environment as a human right, 2) noted that this right is interrelated with other rights and existing international law, 3) reaffirmed that the promotion of this right requires the full implementation of multilateral environmental agreements based on the principles of international environmental law, 4) called upon States, international organizations, businesses and other stakeholders to take political decisions, enhance international cooperation, strengthen capacities and continue to share best practices in order to increase efforts to ensure clean, healthy and sustainable environment for all.

We emphasize that accountability for criminal acts against the environment should be a requirement of the international community as a whole, due to transboundary nature of the consequences of the destructive impact on the environment, in order to avoid repeated destructive impact on the environment in the course of military operations. It is especially unacceptable to recommit such actions, whether during armed conflicts or in peacetime, in light of the increasingly intense climate change and global natural disasters.

We note that due to difficulties in holding accountable those responsible for the destruction of the environment during the unprovoked aggression of the Russian Federation against Ukraine, full compensation for damage caused both to the environment and to individuals becomes even more complicated, and the right to a safe and clean environment is violated.

We emphasize that the Russian Federation must bear responsibility under international law for the destruction of Ukraine’s environment, as well as compensate for the damage caused to the environment, so that it would minimize such damage, restore damaged environmental elements, and ensure environmental safety for Ukrainian citizens through inclusion of such damage into international compensation mechanisms.

We take into account the Recommendation 2245 (2023) of the Parliamentary Assembly of the Council of Europe, which, among other things, proposes to ensure the comprehensive responsibility of the Russian Federation for the aggression against Ukraine by supporting and leading the initiative to establish a special international criminal tribunal to investigate and prosecute the crime of aggression committed by the political and military leadership of the Russian Federation, and ensure the leading role of the Council of Europe in its establishment and providing specific expert and technical assistance; to support the work of international courts,

and also take into account the Resolution of the Parliamentary Assembly of the Council of Europe 2482 (2023), which calls on the members of the UN Security Council to consider putting to a vote and not obstructing the adoption of the Security Council resolution on the referral of the situation in Ukraine to the ICC Prosecutor under Chapter VII of the UN Charter, and calls on the UN General Assembly to support and approve the establishment of a special international criminal tribunal and an international compensation mechanism.

We emphasize that Ukraine has an inalienable right to self-defense in accordance with the provisions of Article 51 of the UN Charter, and as a defending party, Ukraine must respect the limits of proportionality in self-defense against the Russian aggressor.

Ukraine’s right to self-defense is closely linked to the right to initiate and establish national and international mechanisms to bring the perpetrators to justice for the crime of aggression and other international crimes.

Given the unprecedented support of the international community for Ukraine in terms of military operations and in the struggle to ensure justice in the legal sphere, and being open to the development of new mechanisms for bringing those responsible for the destruction of the Ukrainian environment to justice, in accordance with the norms and principles of international law, we call for joint efforts to make such decisions:

1. A separate mechanism of accountability for crimes against Ukraine should have an ad hoc status, act on behalf of the international community as a whole and address, among other things, cases of environmental damage.
2. International cooperation and assistance to Ukraine in documenting, assessing and calculating environmental damage caused by military operations on the territory of Ukraine should be strengthened. One of the mechanisms for strengthening such cooperation should be the conclusion of a multilateral agreement on cooperation and assistance to Ukraine in documenting, assessing and calculating environmental damage caused by hostilities on the territory of Ukraine.
3. Taking into account the vulnerability of the environmental situation on the planet, the effects of climate change, and the current state of development of international law, a new international agreement should be concluded that would introduce effective mechanisms for protecting the environment and minimizing the impact on it during war, and for the accountability of those responsible for damage to it during armed conflict.
4. The UN General Assembly should become the driving force behind the international response to the criminal acts of the military and political leadership of the Russian Federation. In particular, it is through the adoption of a UN General Assembly resolution a mechanism of accountability for crimes against Ukraine committed during the war can be created.
5. At the national level, Ukraine must ensure proper and complete investigation of cases of environmental damage during the war. Justice must be administered in such cases in accordance with all national and international standards.
6. Ukraine should ratify the Rome Statute of the International Criminal Court to ensure effective representation of Ukraine’s interests in the ICC, to be able to make decisions regarding war crimes against the environment, and to adapt national criminal legislation to current requirements during the war.
7. The top military and political leadership of Ukraine should take into account that as a defending party, Ukraine must adhere to the limits of proportionality in its self-defense against the Russian aggressor.
8. In addition to the mechanism for bringing the top military and political leadership of the Russian Federation to justice, a mechanism of compensation for damage caused to Ukraine, its individuals, businesses, and the environment should be created. Such a mechanism could be modeled after the United Nations Compensation Commission.
9. Systematic diplomatic and political work should be carried out to ensure cooperation between states, and between states and the mechanism for bringing the military and political leadership of the Russian Federation to justice, and the enforcement of these mechanisms’ judgements by the states.
10. The capacities of national pre-trial investigation bodies should be strengthened, including through the assistance of international partners, to better investigate crimes related to environmental destruction during hostilities, as well as to provide more comprehensive documentation of damage to Ukraine’s environment and natural resources by the aggressor.

Mutual support, effective and high-quality promotion of environmental interests, the common stance of the human rights movement and creation of a common value basis for the functioning of mechanisms for prosecution, compensation and reimbursement of damages caused by the aggression of the Russian Federation against Ukraine will facilitate the implementation of these decisions at both the national and international levels. Consolidating the efforts of human rights defenders will help restore the international legal order, ensure sustainable peace, security and justice, and help consider environmental safety.

Civil society organisation-signatories in alphabetical order:

Center for Civil Liberties;

EcoTEKA;

Human Rights Association FREERIGHTS;

International charitable organisation “Environment-People-Law”;

National Interest Advocacy Network (ANTS);

Support for Fundamental Research Fund;

Ukraine Without Torture.

Sign the appeal on behalf of the organization at the link.