Existing experience of international litigation on environmental crimes and possible ways to charge with liability Russia for environmental damage were discussed by world experts with Deputy Minister of Environment and Natural Resources of Ukraine for European Integration Iryna Stavchuk on April 22.
Expert panel included Michael Bothe, Professor of Public Law Goethe University Frankfurt, former President of the International Humanitarian Fact-Finding Commission, José R. Allen, former commissioner on the United Nations Compensation Commission, and Stefan Smith, Senior Program Manager, Disasters & Conflicts, at UN Environment Program.
The panel discussion was part of a web streamed conference on April 22 in honor of the 52nd Earth Day, the annual environmental landmark held since 1970. Event was organized by EARTHDAY.ORG, a non-profit organization based in the US, is the world’s largest recruiter for the environmental movement with more than 150,000 partners in 192 countries.
In her opening remarks Iryna Stavchuk thanked organizers and all countries and individuals who help Ukraine to fight aggression and provide humanitarian support. Iryna Stavchuk has informed that the Ministry of Environmental Protection and Natural Resources of Ukraine is already working on stock-taking of environmental damage, collecting relevant information in partnership with other governmental bodies and civil society organizations. During two months of war many dangerous industrial enterprises in Ukraine have been hit, with explosions and fires emitting toxic chemicals. Targeted strikes are carried out on oil depots, causing large-scale fires. Russians are also using banned bombs with white phosphorus. Impacts on climate change mitigation would be huge in Ukraine as enormous amounts of GHG emissions were embedded in numerous destroyed military equipment, buildings and infrastructure, which now would have to be rebuilt. War also has a direct impact on nature and biodiversity. More than one-third of the total territory of protected areas has been damaged by military activities, passage or continued presence of heavy machinery.
“Nature has no borders, and it is also being raped and tortured by Russian invasion. Ukraine is a large, industrialized country with thousands of industrial sites, four nuclear power plants, dozens of dams, and other environmentally sensitive objects. The first group of environmental impacts is related hostilities - Russian military has fired on Ukrainian territory more than 1,500 missiles, as well as countless artillery shells, mines, and air bombs”, - said deputy minister Stavchuk, also noting that State Environmental Inspection of Ukraine has registered more than 1200 cases of environmental damage caused by russian military since February 24.
“The environment is also fundamentally about people: livelihoods, clean air, clean water, safe urban environments, public health, human security, productive food systems. There can’t be a national recovery without environmental recovery. Millions of refugees will be hoping to get back home, but they need a safe environment to do so”, - said Stefan Smith, UNEP expert on post-disaster and post-conflict relief.
“Ensuring that early, adequate funding is available to support environmental remediation and restoration efforts, as well as initial assessment efforts. Other activities such as rebuilding infrastructure and economic recovery are typically the focus of financial support. Funding for environmental restoration and recovery needs to be given priority as well”, - saidJose R. Allen, prominent US lawyer. He also emphasised that for the international community a focus on providing financial support for monitoring and assessment should be as important as support for economic recovery or infrastructure rebuilding and that needs to be part of any international effort.
In 1999, Mr. Allen was nominated by the Secretary General of the United Nations to serve as a commissioner on the United Nations Compensation Commission, which was established to provide a mechanism for countries, businesses, and individuals to obtain compensation from Iraq for damages suffered as a result of Iraq’s invasion and occupation of Kuwait in 1990. Mr. Allen served on a panel that has been responsible for hearing and resolving over $48 billion in claims by governments against Iraq for environmental and natural resource damages resulting from the war.
“The impact of unexploded ordnance and landmines might tend to be viewed through the lens of post-conflict military operations, but they can also be viewed from the perspective of environmental contamination because of the long-term threat that unexploded ordnance and land mines pose to human population. The other thing that we shouldn't overlook is the issue of monitoring public health and performing medical screenings to assess and combat the increased health risks that flow from environmental damage. It's going to take the process and it emphasizes the importance of doing proper monitoring and assessment both on an ongoing basis and post-conflict to really understand what the full scope of impacts are.” - noted Mr. Allen, ex-UN commissioner.
“I think that the first thing which is important to stress is that there's such an enormous amount of really important work being conducted at the moment both by Ukrainian authorities by Ukrainian NGOs by international civil society groups as well as by the UN and other international governmental organizations. I think what we're seeing at the moment is possibly unprecedented: environmental assessment at such an early stage in a conflict. This is really perhaps a turning point in the level of attention around the environment in armed conflicts and I think that's a very positive step”, said Stefan Smith, UNEP Senior Program Manager.
Stefan Smith worked with the UN environment program on post-conflict environmental assessments in dozens of countries going back to the Kosovo conflict in 1999. In the discussion he shared his perspective on why it is important for the UN environment program to do such an assessment in Ukraine and how this can look like in practice.
“The big challenge will be how to consolidate, filter and prioritize this immense amount of data, so that the mammoth task of field assessments is well targeted and also based on a consistent and robust assessment methodology. This is where UNEP can assist – to support the Ukrainian authorities in getting best possible information to guide mitigation, remediation, and recovery efforts”, he added.
According to Smith, UNEP can provide technical support and help to develop targeted field assessments, which can guide further remediation and mitigation efforts. Support can be provided for actual field assessments themselves and the laboratory and data analysis. This can help to address many specific issues, such as the complexity of dealing with asbestos in urban waste and the use of remote sensing and satellite imaging.
“Ukraine is a heavily industrialized society, which has undergone sustained heavy attacks. We've seen significant urban damage. There's a significant problem with unexploded ordnance, damage to industrial facilities, chemical storage facilities, extractive sites, deforestation, impacts on agricultural land. We've seen a large scope of various themes and components of things that we've seen in other places all around the world, but all wrapped into one country with also quite a challenging and large geographical scope”, summarized Stefan Smith.
In terms of priorities, he underlined that it's necessary to maintain a robust monitoring process from all the parties involved (government, NGOs, international organizations), making sure that assessments are done quickly, accurately and of high quality. As UNEP expert explained, this will help to ensure that any recovery efforts, reconstruction and redevelopment planning is founded on solid and accurate baselines. The information gathered in assessments should guide reconstruction efforts, so they don't actually exacerbate some of the environmental problems and do not expose the population to environmental hazards. He also noted that experiences in other countries shows that this unfortunately has been the case in many conflicts before and without environmental guidance recovery work or hazard remediation tends to be quick and dirty. “To some extent the environmentalists tend to come into the show perhaps a little bit late and then it goes back to business as usual which is very carbon intensive and very destructive as well”, said Smith.
On his part Professor Michael Bothe, former president of the International Humanitarian Fact-Finding Commission, noted on his part that the right of future generations to live in a healthy environment is at stake for Ukraine. The International Humanitarian Fact-Finding Commission was established by the UN in 1991 as a permanent international body, whose main purpose is to investigate allegations of grave breaches and serious violations of international humanitarian law.
“The International Humanitarian Fact Finding Commission is an institution set up by the additional protocols to the Geneva conventions. It's a treaty-based body which has the task if asked by the parties to inquire about any violation of international humanitarian law. That of course includes causing environmental damage which is unlawful under international humanitarian law”, explained Professor Bothe, former president of the body.
“There are environmental damages which are so to say typical for any armed conflict. It's industrial pollution caused by attacks on industrial installations. Not to forget ammunition storage, which is a military objective of course, but the environmental damages, the toxic pollution caused by destroying these ammunition stores are a civilian collateral damage, which has to be taken into account. Another point is attacks on housing areas. Depending on the building techniques, which had been used, the rubble caused by the destruction of housing is containing toxic waste. It causes problems and we have seen that in a number of conflicts around the world. Unfortunately, and last but not least, I would also like to draw attention to the question of loss of habitats and protected areas, which brings into the picture what I said earlier: the rights of future generations”, he said.
According to Professor Bothe assessing the extent of environmental damage and gathering evidence for further legal action can and should be included in investigations on war crimes and violations of Geneva conventions. “There are two aspects relating to fact-finding concerning environmental damages: the first question is who did what, who pulled the trigger, which then also relates to criminal law, and the other aspect is what is the environmental impact - where is the environmental problem, how can we evaluate environmental damage. Both aspects are important and we need fact-finding on both aspects”, Bothe explained.
“In terms of civil remedies, the use of foreign state assets to pay compensation appears to provide the most promising mechanism for holding Russia accountable. Whatever mechanism may be ultimately adopted it will be important to ensure that the process is speedy and efficient while providing due process. Having too many complicated procedural and evidentiary rules will bog down the process and limit its effectiveness”, gives his advice Mr. Allen, former commissioner on the United Nations Compensation Commission.
All experts in the discussion agreed that the massive scale of the destruction presents a challenge in itself and the response should be ambitious.
“The overall message is that everybody needs to think big. The political will for positive recovery is clearly there in Ukraine. It’s necessary to think beyond just making Ukraine safe again. We need to start to imagine the national, the regional, the global potential of a green economic recovery of Ukraine”, - said Stefan Smith, Senior Program Manager of UNEP.
“As Ukrainian people, and it was also stated by the president and by the government of Ukraine, we want to have the green recovery, to build it on the low carbon and green technologies. So we would very much appreciate cooperation, expertise and financial support to make it possible”. - concluded Deputy Minister Iryna Stavchuk.