By Nicolas de Sadeleer, full professor UCLouvain, Saint-Louis, Jean Monnet Chair
How much environmental damage has been caused in Ukraine due to Russian aggression?
Since the start of hostilities in 2014, but especially following the large-scale invasion of Ukraine on February 24, 2022, this conflict has claimed thousands of victims, caused the exile of 6.6 million refugees as well as than a major economic shock, and did not spare the environment (20 million tonnes of metal waste, 1,500,000 tonnes of debris and rubble, 50 000 dolphins killed). For example, the flood caused on June 6, 2022 by the destruction of the Kakhovka dam by the Russian armed forces led to a real ecocide by submerging thousands of hectares of land and causing dozens of victims and thousands of displaced people. This flood is the cause of major cross-border chemical pollution which affects the marine ecosystems of the states bordering the Black Sea. Furthermore, widespread chemical pollution and explosions have rendered millions of hectares of agricultural land in Europe’s breadbasket barren. On November 4, 2024, environmental damage amounted, according to the Ukrainian Ministry of the Environment (EcoZagroza), to 94 billion euros.
Does damage to the natural environment constitute a violation of international humanitarian law?
Since the opinion delivered by the International Court of Justice in 1996 on the legality of the threat or use of nuclear weapons, ecological considerations must be duly taken into account in the implementation of the principles and rules of law applicable to armed conflicts. The commission of this environmental damage constitutes a flagrant violation of international humanitarian law, likely to engage Russia’s responsibility. Indeed, the Additional Protocol to the Geneva Conventions of August 12, 1949 relating to the protection of victims of international armed conflicts, to which Russia and Ukraine are parties, prohibits “using methods or means of war” which are likely to cause “widespread, lasting and serious damage to the natural environment” (art. 35). Furthermore, the warring parties are obliged to protect the natural environment from such damage. They are prohibited from using, particularly as reprisals, methods or means of warfare which would cause such damage to the natural environment, thereby compromising the health or survival of the population (art. 55). .
From which courts could victims obtain compensation for these damages?
If international law is not devoid of mechanisms that would allow Ukraine to hold Russia liable for both damage caused to property and people and environmental damage, the fact remains that the The road ahead is strewn with pitfalls. While it is hardly easy to collect evidence in the midst of a conflict (a fifth of Ukrainian territory is occupied) and even less easy to quantify the range of environmental damage, a host of obstacles stand in the way of the Court’s jurisdiction. International Court of Justice (ICJ) and the European Court of Human Rights (ECHR). While the first is not competent to the extent that Russia has not consented to its jurisdiction (except for the Genocide Convention, judgment of February 2, 2024), the second is no longer competent since the Council of Europe excluded Russia from its membership on September 16, 2022. That being said, whether or not they have consented to the jurisdiction of the ICJ, States remain legally responsible for acts contrary to international law that could be committed against them. assigned.
Can war crimes against the natural environment be prosecuted before the International Criminal Court?
What conditions must be met?
Given the extent and irreversible nature of many environmental damages, the condition that damage to the natural environment must be “widespread, long-lasting and severe” could be met. Indeed, damage that could be described as “serious” is long-term and, therefore, often irreversible, and therefore “long-lasting,” in nature. Furthermore, the Prosecutor must provide proof that these damages are “manifestly excessive in relation to the overall concrete and direct military advantage expected”, that is to say that they prove to be disproportionate in relation to the conventional military operations, taking into account the degree of intensity of the conflict. Finally, it will be up to him to demonstrate that the persons prosecuted intentionally contributed to damaging the natural environment. As such, the destruction of the Kakhovka dam on June 6, 2023, in violation of Protocol II to the Geneva Conventions, to which Russia is a party, and which prohibits attacks against these installations “even if they constitute military objectives”, corroborates the intentional element on the part of the Russian military authorities. The same applies to the use of phosphorus bombs in Bakhmut, Kherson and Avdiyivka, prohibited by Protocol III, to which Russia is also a party. That being said, individuals who would eventually be prosecuted before the ICC for war crimes will only incur their individual criminal responsibility and not the international responsibility of Russia.
Given the difficulties of prosecuting such war crimes before the ICC, should Western states adopt an international mechanism for the purpose of reparation for damages from internationally wrongful acts committed in Ukraine?
Aware of this obstacle course, the UN General Assembly, and not the Security Council, of which Russia is a member, estimated in 2022, by a narrow majority, that it was necessary to establish an international mechanism for the purposes reparation for damage from internationally wrongful acts committed in Ukraine or against Ukraine, as well as an international register listing this damage. At this stage, the Damage Register, operating within the institutional framework of the Council of Europe, serves only to record, in documentary form, evidence of damage suffered by people, but does not assume any jurisdictional function. Not regulating the reparation of war damage, and even less environmental damage, this register should be supplemented by a collective reparation mechanism which is currently in limbo. Such a mechanism could be inspired by the Compensation Commission set up in 1991 by the UN Security Council (resolution 687), which levied, by means of a tax on oil sales from Iraq, $52.4 billion (January 2022). This sum notably made it possible to compensate for the damage caused, between February and November 1991, by the emission of 500,000 tonnes of pollutants from the 700 Kuwaiti oil wells prey to fires started by the Iraqi armed forces. However, it is unthinkable that the Security Council would adopt a resolution establishing a similar mechanism, given that Russia and China, as permanent members, have a right of veto. Also, Western states respectful of international law should consider concluding an international treaty, without obtaining Russia’s agreement.
What obstacles does the creation of this international mechanism risk encountering?
Since there is no precedent, Western states are at this stage very divided. The recognition by an international jurisdiction of a crime of aggression or individual violations of the jus in beautiful by Russian military officials should, moreover, legitimize the use of a collective reparation mechanism. But so far, no international court has recognized Russia’s international responsibility.
Such a mechanism could in particular be financed from funds “frozen” by Western countries as part of the measures taken against Russian nationals (300 billion dollars of assets of the Russian central bank were frozen in 2022, including 200 billion from the Clearing House Euroclear). Again, in the absence of prior recognition of Russia’s responsibility, such a unilateral imputation of Russian assets would constitute a first in international law. Will member states have the courage to cross the Rubicon by taking Russia’s assets that have been frozen by the EU autonomously? Russia would not hesitate to denounce a violation of customary international law by Western states, which could thus see themselves taking on the role of the sprinkler. And will Russia not in turn take advantage of this violation of international law to seize Western assets as a countermeasure? It is then the snake which will bite its tail. And to what extent could these samples be allocated to the restoration of destroyed ecosystems?
Jurisdictional immunity of state property?
Another obstacle could arise. Nearly thirty-five years ago, the United Nations began work to codify the law of jurisdictional immunities of States. The United Nations Convention on Jurisdictional Immunities of States and Their Property is the result of this process. It enshrines the restrictive theory of immunity, under which State immunity is not absolute. State immunity includes execution immunity, which allows the state to prevent execution on its property and assets. Adopted on December 2, 2004 and open for signature since January 17, 2005, this Convention has not yet entered into force. Although it is not directly applicable as such, the principles it contains are nevertheless applicable under customary law. The application of these principles depends on the law of the forum. In addition, the exclusion of State immunity depends on a large number of factors: nature of the debt, status of the debtor, public or private use of the property subject to seizure.
