Kosha Doshi and Naga Sumalika Rangisetti are both third year law students studying at the Symbiosis Law School, Pune (India)

Introduction

In the 21^st century, genocide will not necessarily take the form of war, or death camps. Most likely it will take the form of ecocide, in which landscapes are devastated as Ecology along with humans become victims and succumb during armed conflicts. The armed conflicts pose a serious threat of irreversible damage, such as exploitation of victim nation resources, disruption of livelihood of people, unsustainable survival means affecting the short- and long-term goals of citizens. The long-lasting damage to the air, soil and water caused by the usage of chemical weapons needs time to heal, rejuvenate and reestablish their original state. Russia’s invasion styled military attack on Ukraine imbibes a critical effect on the nation. Alongside, wars in Ukraine, one of the world’s top industrial countries, with a significantly lower rank in the Environmental Performance Index, aggravate the extensive risks of toxic contamination due to disruption of factories and industries. Such attacks on industrialized nations affect the environment threatening the food security and health of the people.

The snowballing menace of technological and nuclear hazards in the populated nuclear plants region affects not only Ukraine’s ecology but also the European Nations’. The aghast destruction of cities, forests, factories and equipment impacts the economy and also nature due to pollution. Military and armed conflicts have the most severe impact on environmental destruction due to the toxic substances involved and released into the environment. Ukraine comprising 6% of the European landmass and 35% of the biodiversity and 70,000 species of rare flora and fauna is at stake due to the wide amount of usage of armed weapons and the chances of explosion or leakage of nuclear power plants across the nation.  Such an environmental crisis in the nation also affects climate policies and frameworks. In reference to the existing frameworks regarding the protection of the environment in armed conflicts, the International Law Commission’s review on the general principles of law, it outlines the conduct of regulations with suggestions for corporate solutions. The conventions, frameworks, and principles act as a catalyst in strengthening peacekeeping and the prevention of conflicts.

Weak Legal System

The conceptualisation of frameworks for the protection of the environment in armed conflict was on paper in the need of the hour resulting in the creation of a new concept of crime against humanity coined ‘ecocide’. The conceptualisation of ecocide is a collaborative thought of the spike of mass destruction of the environment. Yet there is no proper rigid legal framework protecting the environment in armed conflicts. The first-ever International Convention addressing the environmental issue during conflict and criminalizing such acts is the ‘Convention on the Protection of the Environment through Criminal Law’ in the year 1998. This convention was a result of the adoption of Resolution 1 by the 17^th Edition of the Conference of European Ministers of Justice in the year 1990. This convention recognises that criminalizing people for harming the environment would be the last resort while measures taken to prevent any impairment would be the priority of the society, lawmakers and authorities. The draft of the convention lays down all the guidelines and procedures to be followed while raising liability.  With the recent attack of Russia on Ukraine, the scholars, analysts are looking for the inclusion of the definition of ‘Ecocide’ under ‘Stop Ecocide Foundation’ as a global crime in the Rome Statute as ‘any illegal and unjustified act committed with the intention and awareness of the subsequent short/long term consequences are held to be liable under Ecocide’. Russia however has violated the Martens Clause and Protocol 1(Additional Protocol) of the Geneva Convention (1949) framework rules of restricting places from attack by attacking the dams and nuclear plants. The 2020 recommendations and guidelines on Protection of the Natural Environment in Armed Conflict by the International Committee of Red Cross (ICRC) were issued in response to the 1994 first guidelines of guiding the Military and Armed Forces for protecting the environment and limiting the damages. Another initiative undertaken by the United Nations International Law Commission on Protection of the Environment in relation to Armed Conflicts is on the same lines and that these documents are also recommended by the United Nations Environment Programme. All these conventions, guidelines and frameworks reveal the extent and liability for the protection of the environment in armed conflicts by analyzing the break-outs and conflicts.

Lacuna In Holding Russia Accountable

Following the occupation of Russia at nuclear sites, like the Chernobyl, an open letter was issued by the Environmental Peacebuilding Association in light of the risks of military operations at vulnerable sites. Simultaneously, the UN Environmental Assembly conducted a meeting with the agenda to discuss the invasion and its threats to the ecosystem resulting from the shelling and toxic waste from the armed conflict. The CEOBS (Conflict and Environment Observatory) flagged Russia’s attack on the nuclear sites demanding criminal accountability for the environmental impact. The  Ukraine Prosecutor General Officer and Security Services termed the act of Russia as an act of ecocide requiring and demanding a criminal investigation. Article 441 of the Ukraine Criminal Code encompasses the crime of ecocide which encompasses mass destruction of flora and fauna, poisoning of water, air and the resources associated with environmental disaster. But the issue persists that with domestic jurisdiction prosecution possibilities become difficult.

Currently, laws at the national level for sustainable development have jurisdiction over the limited territorial area but international law is visioned to protect the world as a whole. Tagging ecocide as an international crime unravels the potential to account for the enlarged loss of biodiversity, serving as a mechanism to compensate for the failed system to hold nations accountable. While the idea of ecocide was introduced by the Swedish PM Olof Palme way back in 1972 UN Conference on Human Environment, no concrete stance has been taken since then by the international community. But the ICC in 2016 clarified its stance on environmental destruction being solely tagged under the umbrella of ‘crimes against humanity.’ The UN Conference on Sustainable Development to be held in Stockholm in June 2022 aims to stress the binding principles and rules for consideration of ecocide as a crime at ICC especially considering the Russia-Ukraine conflict.

Principle 24 of the Rio Declaration takes into account environment and development wherein it considers warfare inherently destructive for sustainable development. Aligned with this, ICJ’s Opinion of the Legality of Threat or Use of Nuclear Weapons places an obligation on states to ensure that activities in the jurisdiction or control do not affect the environment of other states while having special reference in cases of armed conflict. Issue persists with influential states such as the US, France and UK offering resistance to binding obligations. Objection to international humanitarian principles in matters of the environment surrounds the predicted restriction in the context of freedom to use nuclear weapons. Nevertheless, the International Law Commission via its PERAC Project [Protection of the Environment in relation to Armed Conflicts] has recently laid forth 28 draft principles encompassing rights associated with this matter such as the effect of war on marine areas. In consonance with the same, ICRC in its updated guidelines has pleaded for associating environmental awareness with military operations.

International accountability for Russia seems limited at the moment. The issue of protecting the environment in times of armed conflict arose with the oil slicks on the waters of the Persian Gulf towards the end of the Gulf War 1990. To date debates surrounding the role of Article 35, Para 3 and 55 of the Additional Protocol I to curb environmental destruction during the armed conflict have not been settled. In theory, Ukraine can choose to investigate based ICC eco-centric war crimes under Article 8 (b)(iv) of the ICC Rome Statute. But in practice, protection becomes difficult as it requires proof of damage to the natural environment as clearly excessive concerning concrete and direct overall military advantage anticipated. Proving ‘advantage anticipated’ seems burdensome. While there has been extensive support for the term ‘ecocide’, only Article 8(b)(iv) refers to explicit environmental damage. The Rome Statute does not provide a precise definition as it underscores the difference between particular prohibition and criminal prosecution for damages to the environment. For applicability of war crimes under Article 8 to environmental harm, the Statute contained the crime of aggression. This includes a perspective of severe referring to the intensity of damage caused to the environment independent of its geographical ambit and temporal duration. Further, the term ‘long-term’ is unclear to measure in the context of criminal prosecution. While the Rome Statute attempted to address ecocide by incorporating ecocentric values, it is overall subject to anthropocentric values. There have been several calls to amend the provision by widening the provision to address theoretical and practical shortcomings.

Recommendation and Concluding Remarks

Introduction of ecocide as the fifth international crime could counter future contingencies with environmental damages in armed conflict but Russia would not be held accountable due to prospective application. Lessons can be taken from the success stories of the African Convention on the Conservation of Nature and Natural Resources, ENMOD, Draft Code of Crimes Against the Peace and Security of Mankind, 1992 Agreement on the Application of IHL between Parties to the Conflict in Bosnia and Herzegovina. Previous case studies such as the Vietnam War (means of forest cover and crop damage) indicate the limited ability of affected nations to adequately prosecute the nation-states. Theoretical recommendations in line with the UN’s 2022 agenda to characterize ecocide as an international crime would be a way forward. Supplementing this, practical enforcement recommendations in line with preliminary investigation, the inclusion of environmental protection mechanisms, awarding or reparation, compensation for harms, symbolic measures and environmental restoration projects would be feasible. The attack by Russia should be taken as an alarming step in formulating and revising the international guidelines and frameworks to connect environmental damages to crimes against humanity and inhumane acts.