Environmental Destruction in War: A Human Rights Approach

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In the early hours of June 6, 2023, the 468th day of Russia’s full-scale invasion of Ukraine, the Kakhovka Dam across the Dnipro River was destroyed. The catastrophic consequences of the destruction are readily apparent. Dozens of settlements have been flooded and thousands of people are fleeing the destruction, having lost their homes and livelihoods. The long-term environmental impacts will be devastating.

Ukraine claimed that they have strong evidence that Russia intentionally sabotaged the Dam, a claim supported by 18 other states. Experts have claimed that an internal blast, as opposed to shelling, was the likely cause, further suggesting Russian involvement. Such a brazen and destructive act is symptomatic of the blatant disregard for civilian life shown by the Russian military. While Russia denies involvement, its statements about the full-scale invasion are largely disinformation designed to confuse audiences and deflect blame. Given the growing body of evidence, this article proceeds on the assumption that Russia is responsible for the destruction of the dam.

Ensuring justice for the victims and survivors of the destruction of the dam requires going beyond international humanitarian law (IHL) and looking to international human rights law (IHRL).

Why is International Human Rights Law Relevant?

The International Law Commission (ILC) adopted the Draft principles on protection of the environment in relation to armed conflicts in 2022. Principle 13 provides that the environment be “respected and protected in accordance with applicable international law and, in particular, the law of armed conflict.” States explicitly recognised that the reference to applicable international law includes IHRL.

The position of the ILC aligns with the longstanding position of states and commentators on human rights protection at war. IHL provides the “lex specialis” to IHRL in the context of armed conflict. An overwhelming majority of states and commentators understand this to mean that IHL furnishes the more specific rule in situations of norm conflict, rather than displacing or replacing IHRL entirely.

Another persistent question concerning the applicability of IHRL in armed conflict has been extraterritorial jurisdiction: the extent to which IHRL duties apply to conduct that takes place beyond state borders. In the present case, jurisdiction is uncontroversial. The relevant test is effective de facto control over persons or territory. Russia is occupying most of the south bank of the Dnipro and is control of the Dam facility. Russia claims that the territory in question has been “annexed”, further undermining any argument against the application of IHRL.

Environmental Protection under International Human Rights Law

The International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social, and Cultural Rights (ICECSR) are ratified by Russia and are directly applicable. Under the ICCPR, the right to life is non-derogable in times of armed conflict, Russia has not issued a derogation with respect to the right to private and family life. Following Russia’s withdrawal, the European Convention on Human Rights does not apply to the destruction of the dam.

IHRL does not explicitly provide a right to a clean and healthy environment in any instrument. However, recent jurisprudence and state practice has entrenched its existence as an incidental right, connected to civil-political as well as socio-economic rights.

Article 6 and Article 17 ICCPR impose duties on states to refrain from arbitrary interferences with the rights to life and private and family life respectively. Courts and treaty bodies have imposed negative as well as positive duties on states to preserve and protect the environment stemming from these rights. In Portillo Cáceres v Paraguay, the Human Rights Committee (HRC), following a wealth of jurisprudence from the European and Inter-American Courts of Human Rights held that states must take positive measures to prevent reasonably foreseeable environmental degradation that constitutes a threat to life. The Committee further reinforced the longstanding view that environmental degradation that causes serious impacts on health and well-being can amount to violations of Article 17. HRC General Comment 36 on the right to life asserted that the obligation to respect and ensure the right to life with dignity depends on measures taken to protect the environment against harm.

Article 11 ICESCR guarantees the right to an adequate standard of living, and Article 12 guarantees the highest attainable standard of health. While the duties imposed on states are more sensitive to resource constraints or exigent circumstances, intentionally regressive action generally amounts to a violation. For instance, forcible evictions are a violation of the right to housing (as contained within Article 11). CESCR General Comment 4 found that people living in disaster-prone areas are especially vulnerable to violations of the right to housing. With respect to the right to health, General Comment 14 found that states must refrain from unlawful pollution through state-owned facilities.

What Rights Have Been Violated by the Destruction of the Kakhovka Dam?

Two areas of responsibility are key here, expressed in Principles 13 and 19 of the ILC Draft. Principle 13 prohibits the “use of methods and means of warfare that are intended, or may be expected, to cause widespread, long-term and severe damage to the environment” (see also Rule 44 of Customary IHL). Principle 19 requires that occupying powers “take appropriate measures to prevent significant harm to the environment of the occupied territory”. The latter is important since, as Marko Milanovic explained, the intentional sabotage of the Dam by Russia may not qualify as an “attack” under IHL.

If the destruction of the Dam was an “attack”, it was almost certainly disproportionate, and a resort to methods that recklessly and severely damaged the environment. If not, it would be a violation of the positive duty of the occupying power to prevent significant harm to the environment.

What if Russia had taken precautions to limit the Dam’s destruction on the civilian population, such as evacuating civilians from the south bank?. First, it is doubtful that any precautions could prevent unlawful damage to civilian objects. The destruction of property would need to be “absolutely necessary” for military operations (under Article 53 GC IV). While Russia could argue that the flooding served a military objective: impeding the Ukrainian counter-offensive, absolute necessity is a very high bar. The uncontrollable nature of the flooding would likely be “wanton” and impermissible. Second, as discussed above IHL imposes an independent obligation to protect the natural environment. Catastrophic impacts on the environment, independently of any civilian property would also factor into the necessity calculus. As such, even if Russia had taken extensive precautions, destroying the dam would almost certainly violate their duties as an occupying power.

Three conclusions follow from this assessment. First, killings that violate IHL are arbitrary for the purposes of IHRL, and thus a violation of the right to life. This longstanding position was most recently reaffirmed in General Comment 36.

Second, creating serious threats to life also amounts to a violation of the right to life. Under IHRL, the creation of or failure to prevent life-threatening environmental dangers can amount to a violation. While killings are often the focus of treatment of the right to life at war, General Comment 36 provides that practices inconsistent with IHL “entailing a risk to the lives of civilians” also violate the right to life. Indeed, as discussed above, IHL prohibits causing severe damage to the environment, even absent direct harm to civilians. This conclusion is far reaching – given the life-threatening risks posed by the flooding, tens of thousands of people could claim a violation of their right to life.

Third, non-life-threatening harms also amount to human rights violations. The harms include the destruction of homes, destruction of farmland, killing of pets, damage to cultural institutions, as well as impact on physical and mental health. The right to private and family life under the ICCPR and the rights to adequate standard of living and highest attainable standard of health under the ICESCR apply to these impacts. While different standards are applied (arbitrary, adequate, highest attainable) the relevant test is the same: whether the harms were caused by acts that comply with IHL.

For an illustrative example, we can consider rights connected to housing. The quartering of soldiers in a civilian dwelling for a reasonable time could be allowed under IHL pursuant to military necessity. As such, it would be non-arbitrary with respect to the right to private and family life and not undermine an adequate standard of living in the context of armed conflict. However, the international or reckless destruction of thousands of homes is essentially a mass forced eviction, and a blatant violation.

Ensuring Justice for Environmental Harms in Armed Conflict

IHL and IHRL have vastly different aims and origins. The former is a compromise between organisations promoting protective aims and state militaries opposed to limiting their conduct. At its heart is the tension between the principles of humanity and military necessity. The latter is universalist, highly ambitious, and arguably utopian in its aspirations.

Indeed, common objections to the application of IHRL in armed conflict, or so-called “convergence” or “humanisation” of IHL, are rooted in historical and practical concerns. IHRL was not designed for application in times of war. To that effect, Naz Modirzadeh suggests that IHRL and its ambitious provisions simply cannot reflect the realities of war, and attempting to apply IHRL would only dilute its protection elsewhere while undermining the clarity of IHL.

Here, such arguments do not apply. Both IHL and IHRL impose duties to protect the environment. States have expressed clear intentions to expand the protection of the environment under both areas of law. The duties under both areas of law apply harmoniously in a situation of armed conflict.

The destruction violates a range of duties under IHL and IHRL, and justice for the survivors of the destruction should be pursued under all avenues. IHL and its application to individuals through international criminal law may offer the possibility of bringing perpetrators to criminal justice (see, (7) on “ecocide”). IHRL on the other hand, entails a right to reparations for all those whose rights have been violated. Recognising these rights is not only a recognition of the humanity of the thousands who have lost their lives, homes, and livelihoods because of the destruction of the Dam. It provides a concrete avenue for claiming reparations against the responsible party, and the possibility that they are, one day, compensated for the suffering and devastation that they lived through.

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