Since 2014, the Crimean peninsula, certain areas of the Donetsk and Luhansk regions, the adjacent territories of the Black and Azov Seas have been illegally occupied by Russia as part of its ongoing aggression, including the naval one [1].

The deliberate and organized Russian invaders’ policy in the Crimea, which grossly violates the collective and individual rights to a safe environment, sustainable development and environmental information, since 2014 has included issues of air, water and land pollution due to military activities, the operation of the chemical industry in the cities of Armyansk and Krasnoperekopsk, and the dumping of waste and sewage, as well as issues of illegal extraction of groundwater, natural gas and building stone and sand [2], [3].

ARC expert Professor Borys Babin, with the active assistance of PhD Oleksii Plotnikov and PhD Anna Prykhodko, researched the forms and ways of responding to current challenges, in the conditions of the aggressor’s undermining the Kakhovka hydroelectric power station; the corresponding analysis’ theses have already received approving assessments from a number of reputable ecologists and human rights activists [4].

Russia’s criminal occupation policy in the Crimea is aimed at destroying both unique local ecosystems and other natural objects that become part of illegally urbanized spaces. The communal infrastructure of the Crimea has been degrading since 2014 in the context of growing corruption in local Russian-controlled “administrations” and the constant change of “heads” of Crimean cities and towns declared by Russia [5].

Until 2022, Ukraine responded to these issues at the level of national plans for the de-occupation and reintegration of Crimea and by initiating international lawsuits.

On September 16, 2016, Ukraine filed a lawsuit against Russia in international arbitration regarding the 1982 UN Convention on the Law of the Sea (UNCLOS) regarding the dispute over the rights of coastal states in the Black Sea, the Sea of Azov and the Kerch Strait [6].

In this 2017-06 case, Ukraine applied to international arbitration with a request to rule that, among other things, Russia is obliged to exercise appropriate cooperation with Ukraine in the prevention and preservation of the marine environment, including the provision of information on any oil spill or other pollution incident in maritime areas, where Russia did not challenge the Ukraine’s jurisdiction and rights until February 2014.

In its decision on preliminary objections in 2020, the international arbitration found that Russia’s denial of the jurisdiction of Ukraine’s claims regarding activities in the Sea of Azov and the Kerch Strait is not exclusively of a prejudicial nature, and a decision on the merits in this case has not yet been made [6]. Environmental issues have not been specifically reflected in the proceedings before the International Court of Justice and the European Court of Human Rights, which Ukraine has initiated since 2014 on issues of Russian aggression.

A series of UN General Assembly resolutions adopted with regard to Crimea reflected some of the environmental challenges in this area, in particular, resolutions 71/205, 72/190, 73/263, 74/168, 75/192 and 76/179 “Situation of human rights in the temporarily occupied AR of Crimea and the city of Sevastopol, Ukraine” and resolutions 73/194, 74/17, 75/29 and 76/70 “Problem of the militarization of the AR of Crimea and the city of Sevastopol, Ukraine, as well as parts of the Black Sea and the Sea of Azov”, approved since 2016.

For example, resolution 76/179 condemned the report of the destruction of natural heritage in Crimea and expressed the UN’s concern about the additional challenges to the enjoyment of the human rights of the inhabitants of the Crimea as a result of the subversive activities of the occupying state, including the construction of infrastructure projects, accompanied by the illegal expropriation of land and the depletion of natural resources, which affects physical properties of the Crimean peninsula.

This resolution required Russia to fulfill its responsibility as an occupying state for ensuring proper living conditions in the Crimea, including by ensuring a fair distribution of fresh water resources for the civilian population [7]. UNGA Resolution 76/70 reiterated its concern about the numerous military exercises of the Russian armed forces held in the Crimea and the adjacent maritime zone, undermining regional security and causing significant long-term negative environmental consequences in the region [8].

In 2018, the Government of Ukraine adopted by prescript No. 218-r, which was canceled in 2021, the Action Plan for the implementation of certain principles of the state’s domestic policy on the Crimea, but it did not contain environmental issues.

Later, by Decree of the President of Ukraine No. 117/2021 of 2021, the Strategy for the De-occupation and Reintegration of Crimea was approved, and the Action Plan for the implementation of this Strategy was adopted by Government Decree No. 1171 [9].

The strategy contains the “Environmental Policy” block, covering the issues of monitoring the natural environment in the Crimea, recording the facts of environmental offenses and crimes, using international cooperation mechanisms, maintaining a register of losses, pollution caused and other negative impact on the environment.

At the same time, the new version of the Strategy has not yet been approved, and Ukrainian officials promise to make appropriate changes to it by the fall of 2023.

Ukraine’s law enforcement activities on these issues began earlier, since the first investigation into ecocide started in 2016 and concerned the activities of the “Crimean Titan” enterprise near the Russian-occupied village of Perekop, where an accident with air pollution occurred later in 2018.

In 2019, after the 2018 release, Ukrainian investigators reclassified the case into articles of the Criminal Code of Ukraine on ecocide and air pollution. The case became much more extended, both in subject matter and in the charges.

The available procedural decisions indicate that the case concerns two more enterprises illegally “registered” in the Russian “registries” but located in the Northern Crimea – the “Crimean Soda Plant” and the “Bromine Plant”, which are part of the same industrial cluster with the “Crimean Titan”. It is alleged that this illegal activity led to serious consequences, in particular in the form of misuse of natural resources by the occupying “authority” for their own needs and pollution of the environment.

And until 2022, this was not the only Ukrainian case related to environmental crimes committed in Russian-occupied territory. Since 2016, at least three more investigations into allegations of ecocide have been launched. One of them concerned the so-called “Klivazh” facility, the site of an industrial nuclear explosion located in a coal mine in the Russian-occupied part of the Donetsk region of Ukraine. According to the available procedural documents, illegal “control facilities” did not pump out groundwater from the nuclear cavern, which created a threat of radioactive contamination of local basins, including the Sea of Azov, which could also affect the Crimean environment.

The above-mentioned case regarding the “Crimean Titan” underwent changes after the publications of the Mission of President of Ukraine in the AR of Crimea and the reports of the “Center for Journalistic Investigations”, when a pumping station supplying water to chemical enterprises, namely the “Crimean Sodium Plant” and “Bromine Plant” located in the Crimea, was found on the territory then controlled by Ukraine, on the northern coast of the Sivash, on Cape Kutara.

This pumping station filled the Western Sivash with water from the Eastern, natural, Sivash, since the western part of the bay became a large artificial reservoir, fenced off from the rest of the Sivash by a dam built back in Soviet times to ensure the chemical activity of plants in the Northern Crimea, namely soda and bromine. “Crimean Sodium Plant” and “Bromine Plant” were owned by Ukrainian oligarch Dmitry Firtash, as was “Crimean Titan”.

In October 2018, employees of the Security Service of Ukraine, together with the aforementioned Mission of the President, stopped the operation of the pumping station at the Kutara dam, which made it impossible for the illegal use of Sivash water and established that the mainland land plot on which the pumping station is located was leased by the “Crimean Soda Plant”.

The SSU also recorded the supply of industrial volumes of electricity from the occupied Crimea to the pumping station. In October 2019, the media reported that the pumping station had resumed operation, but later, in November, court decisions appeared in case 766/22955/19 in criminal proceedings 42016010000000238, which mentioned this pumping station.

It should be noted that proceedings 42016010000000238 were initiated under Article 364 (Part 2 “Abuse of power or official position resulting in grave consequences”), and subsequently qualified under Articles 241 (“Atmospheric air pollution”) and 441 (“Ecocide”) of the Criminal Code of Ukraine.

The proceedings were started by investigators of the prosecutor’s office in 2016, but in 2019 they were transferred to the National Police Department in the Kherson region, since the prosecutor’s office lost the competence of the investigation.

In proceedings 42016010000000238, the procedural decisions of the investigating judges published until 2022 testify to the practical scheme for the illegal use of Sivash salt water by “Geomonitoring” LLC registered in Ukrainian registers in the interests of the occupiers-controlled “Crimean Soda Plant”.

The decisions of the investigating judges also indicated the actions of the investigation that researched the seized documents of the pumping station for 2015-2019, in particular, “field materials”, “water sampling protocol from 2015”, “report on the results of monitoring groundwater wells”, “conclusions expertise”, “carrying out special exploration works”, “technical (geological) assignment for the search for sodium chloride, magnesium and bromine in the subsoil of the Sivash hydromineral deposit” and so on.

Starting from February 24, 2022, Russia has carried out a wide open military aggression throughout the territory of Ukraine. Russian-controlled troops and mercenaries have already committed gross violations of international humanitarian law and international human law in Ukraine during this invasion, including massive crimes against property, social and cultural rights and the environment, attacks on forests, dams, national parks, coastal and marine ecosystems [10], as well as against Ukrainian agricultural enterprises [11].

On March 24, 2022, the UN General Assembly adopted Resolution ES-11/2 [12], in which it expressed concern about the serious humanitarian consequences of a possible accident resulting from the bombing and shelling of the Ukrainian nuclear infrastructure, reaffirming the obligation to ensure the safety and security of all nuclear infrastructure, expressing concern about the conflict’s impact on the environment.

The International Maritime Organization (IMO) held an emergency session of its Council (C/ES.35) following the start of large-scale Russian aggression, including naval one, and the IMO Council on March 10, in its decision, condemned the violation by Russia of the territorial integrity and sovereignty of Ukraine, extending to its territorial waters, and posing serious risks to the marine environment. The IMO Council deplored Russian attacks on commercial vessels, their seizure, including search and rescue vessels, which threaten both the safety and welfare of seafarers and the marine environment [13].

Until May 2023, new war crimes were committed by Russian troops, including the destruction of civilian infrastructure, forests, dams and other land reclamation systems by mines, rockets and artillery explosions. Russian troops are massively destroying and robbing the technical equipment of the Ukrainian forest reclamation departments and national parks of the Kherson and Zaporizhzhya regions [14].

The corresponding negative consequences of Russian aggression against climate include air pollution due to massive extensive emissions of combustion products, the destruction of thousands of square kilometers of forests and plantations near the front line, as well as natural soils in the combat zone near the Crimea, and the criminal intervention of Russian occupiers [15].

Also, the negative impact on the climate includes the destruction of ecosystems important for the oxygen exchange of the Black and Azov Seas due to pollution with oil products and chemicals from Russian ships and their rocket ammunition during the Russian maritime aggression, as well as changes in ecosystems caused by the mass death of mammals and fish due to noise and explosive pollution during maritime activities [16].

Particular risks in this area arise in relation to possible changes in the layer of hydrogen sulfide located in the deep part of the Black Sea, and related emissions, in particular as a result of explosive processes.

It should be added that since 2022, the Russian illegal “administrations” have been demonstrating negligence in matters of land reclamation and water supply both in the occupied part of the Kherson region [17], [18] where the mouth of the North Crimean Canal is located near the front line, and in the occupied part of the Zaporizhzhya region regarding the Kakhovka Canal [19], and in the occupied Crimea. The illegal “head” of Crimea, Sergei Aksyonov, in his “anniversary address” of the large-scale invasion in February 2023, criminally stated that the “unblocking of the North Crimean Canal” was supposedly an “important result” of the large-scale invasion of the mainland of Ukraine [20].

Already as part of a large-scale invasion of mainland Ukraine and after the occupiers’ criminal seizure of the North Crimean Canal in the Kherson region in March 2022, the fictitious “damage assessment working group” transferred the “prepared claim for 152 billion rubles” to the illegal “republican government”. However, on November 29, 2022, the criminal “Crimean speaker” Vladimir Konstantinov stated that this fake “lawsuit” “is technically impossible to file while the special operation continues”. It is still unknown what stopped this propaganda operation of the Kremlin, but, most likely, the “materials of the lawsuit” turned out to be so “high-quality” that the very publication in a fake “trial” discredits this “important” issue for the aggressor even more [21].

On February 23, 2023, the UN General Assembly ES-11/6 noted with deep concern the negative impact of Russian aggression on global food security, energy, nuclear safety and security and the environment and called on all UN Member States to cooperate in a spirit of solidarity to consider for food security, energy, finance, environment and nuclear safety and security [22].

Since the UN Environment Program is mandated to assist countries, upon request, in reducing and controlling pollution in areas affected by armed conflict or terrorism, in response to a request from the Government of Ukraine, the Program has prepared a report to help Ukraine rebuild the current conflict and inform a comprehensive post-conflict assessment. The report acknowledges that during the massive Russian aggression, Ukraine experienced significant environmental damage. The report acknowledges that as of June 2022, at least seven confirmed cases of war-related releases of toxic industrial chemicals have been reported [23].

In Ukraine, since 2022, several new criminal proceedings have been opened on the destruction of the ecosystem by Russian troops, with the qualification of such activities as crimes of ecocide, but in general, the concept of ecocidal crime is not well developed in modern international law and does not have conventional protection [30]. In addition, due to martial law, information in open sources regarding the procedural steps to investigate these crimes is as limited as possible.

Also, the above-pointed issues were discussed during the side event “Impact on Climate Change: Crimea, Indigenous Peoples and International Crimes” at the Climate Change Conference in Sharm el-Sheikh (COP 27), held by experts from the Crimean Tatar Resource Center on November 17, 2022 [24].

Experts at COP 27 emphasized that the main negative consequences for the indigenous peoples of Crimea are the destruction or damage as a result of climate change of natural ecosystems and territories of traditional farming, namely: desertification of Western Crimea, deforestation in the Crimean mountains, destruction and disappearance of marine coastal complexes of the Seas of Azov, salinization of soils in the Central and Eastern Crimea [25].

At COP 27, experts noted the need for discussion and assessment by intergovernmental bodies, governments of developing countries, environmental and human rights organizations, institutions of the world’s indigenous peoples, forms of direct and indirect negative environmental and economic impact of Russian aggression in the field of climate change and the rights of indigenous peoples.

This issue was also discussed at the preliminary events of the World Law Congress 2023, which will be held in New York in July 2023 [26].

Therefore, the issues of international legal and organizational response to Russia’s aggression against Ukraine, including international responsibility for ecocide crimes, remain extremely topical.
As noted above, the Strategy for the De-occupation and Reintegration of Crimea provided for a number of measures in the field of environmental protection, but its improvement in the context of large-scale Russian aggression has not yet taken place.

Earlier, by prescript of the Permanent Representative of the President of Ukraine in the AR of Crimea dated June 20, 2018 No. 17, the Plan of Urgent Measures to Counter Russian Aggression from the Temporarily Occupied Territory of Ukraine in Crimea, to Protect the Interests of State, Citizens of Ukraine and Ukrainian Legal Entities in Crimea for 2018-2019 was approved (Plan).

The Plan contained a separate Chapter 11 “Environment”, which covered a number of tasks. In particular, the Plan provided for the introduction of an effective comprehensive monitoring of environmental risks associated with four areas, with an appropriate legal response to the Russian occupation structures’ activities regarding:

  • activities of enterprises of the chemical industry of the Crimea, for adjacent territories and water areas, atmospheric air,
  • illegal production of hydrocarbons and sand by structures controlled by the occupiers on the shelf of the Black Sea,
  • scams with large-scale infrastructure, industrial and other construction projects of the occupying “authority” in Crimea,
  • the state of affairs in the territories and objects of the natural reserve fund of Ukraine in the Crimea [27].

Among the steps to implement these tasks, the Plan provided for the initiation of comprehensive examinations of the state of pollution and the corresponding damage incurred, the holding of annual meetings with the participation of representatives of law enforcement agencies, authorized state authorities, territorial huge, the introduction of effective forms of documentation of damage.

Among the practical results of the implementation of the Plan, it provided for obtaining documentary evidence of pollution, determining the algorithm for establishing harm and environmental risks, creating databases, implementing due process and international legal response, publishing a system of articles on these issues in Ukrainian and foreign media, in scientific research.

This Plan was of a short-term nature and was practically not implemented, which became the subject of legal proceedings, which are currently being considered by the European Court of Human Rights regarding possible violations of the rights of a number of public structures due to non-fulfillment of the Plan.

Also, by prescript of the Cabinet of Ministers of Ukraine dated April 4, 2023 No. 288-r, the Action Plan for the Implementation of the Strategy for De-occupation and Reintegration of Temporarily Occupied Territory of the AR of Crimea and City of Sevastopol, dated April 4, 2023 No. 288-r (Action Plan) was approved [28].

In the Action Plan, the section “Environmental Policy” is devoted to environmental issues, and the document refers to such tasks as:

  • creation of a geographic information system for monitoring and predicting environmental problems in the temporarily occupied territory with a planned implementation by the end of 2023,
  • creation of a national system of space observation and ensuring the reception of data from foreign space systems with a planned implementation by the end of 2024,
  • keeping on the agenda of international organizations the issue of threats to the environment and health of the population of Ukraine from the illegal economic activities of the Russia’s occupying “authority” in the temporarily occupied territory, with implementation until the de-occupation of Crimea,
  • initiation by Ukraine of joint interstate projects and programs with other states of the Black Sea region, which would include a joint inspection of pollution of the Black Sea due to the militarization of the occupied territory and the Azov-Black Sea region by the aggressor state, as well as due to the Russia’s illegal implementation of major construction infrastructure projects in the occupied territory that caused damage to the environment, which should be implemented after the de-occupation of the Crimea,
  • implementation of a set of measures to stabilize the environmental situation on the territory of Crimea, in particular, improve the level of water supply after the de-occupation of the occupied territory, which should be carried out within a year after the de-occupation of Crimea.

The document identified the Ministry of Foreign Affairs, the Ministry of Internal Affairs, the Ministry of Infrastructure, the Ministry of Reintegration, the Ministry of Environment, the Ministry of Economy, the State Space Agency, the State Emergency Service, the State Environmental Inspectorate, the State Water Agency, the State Fisheries Agency and the Mission of the President of Ukraine in the AR of Crimea as the responsible executors of the specified instructions of the Action Plan. At the same time, significant questions arise regarding the establishment of both the main executors of the measures of this Plan, and responsibility for their non-fulfillment or improper fulfillment, as well as issues of sources of financing for the Action Plan.

At the same time, among the expected results of these instructions, the Action Plan included the provision of an analysis of the state of the environment in the occupied territory, its sounding during remote sensing of the Earth, the implementation of proper informing of international partners about the systemic deterioration of the environmental situation in the occupied territory, the environmental inspection of the Black Sea, the restoration of water supply and stabilization ecological situation in Crimea after its de-occupation.

Due to the limited international convention mechanisms for holding Russia liable for the negative impact on the environment in the occupied territories [29]; [30], important forms of response to these processes are national criminal and administrative proceedings in Ukrainian jurisdiction, informing authorized UN structures, including special rapporteurs of the Human Rights Council and the UN Environment Programme, work at the international level to develop a model of the international crime of ecocide, etc. Further, a special role in this vein will be played by the assessment of prospects and the development of forms of financing of relevant projects [31].

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  28. 288-2023-р#Text

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