How to qualify war crimes against the environment

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How to qualify war crimes against the environment

The armed aggression of the Russian Federation continues to cause damage to the natural environment, affecting the well-being, health and survival of people in Ukraine. The environment is too often attacked or accidentally damaged by the use of certain methods or means of warfare.

Ольга Вдовиченко

11 October, 2023

258

How to qualify war crimes against the environment

During the full-scale invasion, the Russian Federation grossly violates the norms of international humanitarian law, including causing extensive, long-term and serious damage to the natural environment of Ukraine.

This piece explores how to prove the composition of a war crime in the case of Russian aggression causing damage to the natural environment of Ukraine?

Notably, in accordance with paragraph b) part 3 of Article 85 of the Protocol Additional to the Geneva Conventions Relating to the Protection of Victims of International Armed Conflicts of 8 June 1977 (hereinafter – Protocol I), a serious violation of this Protocol includes, in particular, committing an indiscriminate attack affecting the civilian population or civilian objects, when it is known that such an attack will cause excessive loss of life, injury to the civilian population or damage to civilian objects.

According to the provisions of Article 52 of Protocol I, civilian objects are all objects that are not military objects.

Rule 8 of the Guidelines on the Protection of the Natural Environment in Armed Conflict establishes that In the conduct of military operations, constant care must be taken to spare the civilian population, civilians and civilian objects, including the natural environment. All All feasible precautions must be taken to avoid, and in any event to minimize, incidental loss of civilian life, injury to civilians and damage to civilian objects, including the natural environment.

Therefore, according to international humanitarian law, we can consider natural environment as a civilian object.

In addition, according to Article 8(2)(b)(iv) of the Statute of the ICC and Article 3 of the Statute of the ICTY, which are the source of interpretation of the provisions of Article 438 of the Criminal Code of Ukraine, an intentional attack with the knowledge that this attack will lead to accidental death or wounding civilians or causing damage to civilian objects or widespread, long-lasting and severe damage to the natural environment, which would be clearly excessive compared to the concrete and immediately expected general military advantage, is a serious violation of the laws and customs applicable in international armed conflicts in established framework of international law, and therefore, is a war crime.

Also, according to the provisions of Article 8(2)(b)( ii ) of the Statute of the ICC, intentional direct attack on civilian objects – that is, objects that are not military targets – is a war crime.

Customary International Humanitarian Law also includes obligations of states to protect the environment during armed conflict. Thus, according to Rule 7, the parties to the conflict must always distinguish between civilian objects and military targets. Attacks can only be directed at military targets. Attacks should not be directed at civilian objects.

Rule 45 of Customary International Humanitarian Law establishes that the use of methods or means of warfare that are planned or likely to cause widespread, long-lasting and severe damage to the natural environment is prohibited. Destruction of the natural environment cannot be used as a weapon of war.

In addition, in accordance with Part 1 of Article 1 of the 1976 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, to which both Ukraine and the Russian Federation are parties, each State Party to this Convention is obliged not to resort to military or any other hostile use of means of influence on the natural environment having widespread, long-term or severe consequences as a means of destroying, damaging or causing harm to any other State Party.

Therefore, according to Article 438 of the Criminal Code of Ukraine, an attack carried out with the knowledge that it may lead to the accidental death or injury of civilians or damage to civilian objects or widespread, long-term or severe damage to the natural environment is a violation of laws and customs of war provided for by international treaties, the binding consent to which was given by the Verkhovna Rada of Ukraine.

It is known that Article 438 of the Criminal Code of Ukraine is a blanket norm, and therefore, when justifying qualifications in each specific case, it is necessary to refer to norms, articles and rules of conventions, additional protocols to conventions or norms of customary rules that provide the content of the objective side of this crime.

To prove the environmental component of a war crime, references can be made to:

part one and item a) of part four of Article 51 of Protocol I, according to which the civilian population and individual civilians enjoy general protection from dangers arising in connection with military operations; indiscriminate attacks are prohibited. Attacks of an indiscriminate nature include attacks not aimed at specific military objects;

part one of Article 52 of Protocol I, according to which civilian objects should not be the target of attack or reprisals;

part three of Article 35 of Protocol I, which prohibits the use of methods or means of warfare that are intended to cause, or may be expected to cause, widespread, long-term and severe damage to the natural environment;

part one of Article 55 of Protocol I, according to which, in conduct of military operations care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. Such protection includes the prohibition of the use of methods or means of warfare which are intended to cause, or may be expected to cause, such damage to the natural environment and thereby to damage the health or survival of the population.

It should be noted that Article 55 of Protocol I concerns damage to the health or survival of the population, while Article 35 of Protocol I concerns damage to the natural environment.

However, regardless of the extent of the harm prohibited by Article 55, the combined effect of Articles 35 and 55 of Protocol I is that they clearly prohibit the use of methods or means of warfare which are intended to cause, or may be expected to cause, widespread, long-term and severe damage to the natural environment as such. It corresponds to the conclusions of the International Court of Justice of the United Nations that “taken together, these provisions embody a general obligation to protect the natural environment from widespread, long-term and severe environmental damage.”

In addition, in case of an attack on works and installations containing dangerous forces, it is necessary to refer to part one of Article 56 of Protocol I, according to which works or installations containing dangerous forces, namely dams, dykes and nuclear electrical generating stations, shall not be made the object of attack, even where these objects are military objectives, if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population, since according to item c) of part three of Article 85 of Protocol I, such actions are a serious violation of international humanitarian law.

Similarly, Rule 42 of Customary International Humanitarian Law establishes that particular care must be taken if works and installations containing dangerous forces, namely dams, dykes and nuclear electrical generating stations, and other installations located at or in their vicinity are attacked, in order to avoid the release of dangerous forces and consequent severe losses among the civilian population.

It should also be noted that the principle of proportionality in international humanitarian law and customary norms prohibits attacks that can be expected to cause accidental civilian deaths or injuries to civilians, damage to civilian objects, or a combination of such effects that would be excessive compared to the expected specific and direct military advantage.

Given the civilian nature of the natural environment, any part of it that is not a military objective must be protected not only from direct attack, but also from accidental damage, which cannot be excessive (separately or in combination with other accidental damage, inflicted on civilian objects) compared to the expected specific and direct military advantage obtained as a result of an attack on a military objective.

Therefore, even in case of an attack on a military target, if it causes excessive damage to the environment, such actions can be qualified as a war crime.

Correct application of norms and customs of international humanitarian law will ensure proper prosecution for war crimes committed and compensation for the damage that military actions caused to the natural environment of Ukraine.

This publication is made possible by the generous support of the American people through the United States Agency for International Development (USAID) in the framework of the Human Rights in Action Program implemented by the Ukrainian Helsinki Human Rights Union.

Opinions, conclusions and recommendations presented in this publication do not necessarily reflect the views of the USAID or the United States Government. The contents are the responsibility of the authors and UHHRU.

The American people, through the USAID, have provided economic and humanitarian assistance worldwide for 55 years. In Ukraine, USAID’s assistance focuses on three areas: Health and Social Transition, Economic Growth and Democracy and Governance. USAID has provided 1.8 bln. technical and humanitarian assistance to Ukraine since 1992.

For additional information about USAID programs in Ukraine, please visit our website or our Facebook page.