Ukraine Symposium – Unprecedented Environmental Risks

Environmental damage in armed conflict is generally caused in four ways: (1) the conduct of hostilities, i.e., the use of means and methods of warfare (weapons and tactics); (2) natural resource extraction and exploitation; (3) the military environmental footprint in manoeuvring around a battlespace; and (4) the governance vacuum. Impacting all of these possibilities are scale, intensity, and length of warfare as well as the terrain of conflict (e.g., urban, jungle, desert). Clearly, there are many unknowns at the minute in relation to the conflict in Ukraine, including how long it will last, yet a number of environmental concerns have already arisen from the first month of combat. The most terrifying of these is the “unprecedented danger” from radioactive contamination.

Noting that Ukraine has endured an armed conflict in its eastern Donbas region since 2014, the impacts on the environment are both new and old. For example, existing damage to the Ukrainian environment is clearly being exacerbated by the recent Russian invasion. Principal among those impacts is the extensive damage being caused to ecological areas within Ukraine, such as the many internationally protected wetlands under the 1973 Ramsar Convention as well as biosphere reserves and national nature parks.

The damage caused to these ecological spaces is not prohibited per se by the laws of armed conflict. However, this damage is generally a consequence of the stationing of troops and weapons. Similarly, since 2018, soil and water contamination from flooded abandoned coal mines has taken place in the breakaway regions of Donetsk and Luhansk due to a lack of maintenance. Meanwhile, since the Yunyi Komunar (Yunkom) mine was the location of a controlled 0.3 kiloton nuclear explosion in 1979, there is now the additional threat that if flood waters overflow, water could spread radiation contamination. Such environmental maintenance and governance vacuums always seem to accompany armed conflict.

Lamentably, there is enormous damage to Ukraine’s environment every day as a result of the conflict. This post will largely focus, however, on an unprecedented threat, namely, key environmental legal concerns raised by the threat of chemical and radiation contamination caused through the conduct of hostilities.

Targeting Polluting Facilities

There have been many reports from Ukraine depicting images of burning infrastructure with huge plumes of smoke billowing across the landscape. However, most such attacks are lawful under the laws of armed conflict. Attacks on military bases, airports/bases, air defence systems, munitions storage facilities, coke plants, and oil/fuel depots at various phases of the conflict have been commonplace. Such attacks cause large toxic smoke clouds as they burn, sometimes lasting for days and spreading for miles, causing respiratory damage. Yet, when clearly directed at “military objectives,” these attacks generally raise questions of legal violation only in relation to the scale and type of collateral damage caused. While we have witnessed many massive plumes of toxic fumes in the conflict so far, which clearly have an impact on human health and the environment, the scale of fumes damage is generally unlikely to violate the proportionality rule.

The bombing of chemical, pharmaceutical, and other industrial facilities, on the other hand, raise the perennial question of their individual status as military objectives in the given circumstances. The ICRC has recommended that the enhanced protection rule in Article 56, Additional Protocol I (AP I), relating to facilities containing “dangerous forces,” be extended also to cover chemical plants and petroleum refineries. That recommendation, however, is not generally supported by States. Thus, the key legal determinations to be made are regarding the criteria for qualification as a “military objective,” precautions in attack, and the rule of proportionality.

The Russian attack on the Sumy Khimprom fertiliser plant, for example, damaged a 50-ton gas tank filled with ammonia, which sent a cloud of chemical contaminants into the air and affected an area over a 2.5km radius. Exposure to ammonia in the air can affect the respiratory tract, but a warning by the local mayor to remain indoors and favorable wind conditions helped to ensure that no one was harmed. The Russian Ministry of Defence reportedly denied conducting the attack. It suggested that Ukrainian “nationalists” had placed mines to blow up the ammonia and chlorine storage facilities in an attempt to claim a false flag attack.

Nevertheless, similar to the lubricants warehouse at Mykolaiv, the Sumy Khimprom attack is likely justifiable as targeting a military objective as such materials can be used to make “home-made” bombs and have other military purposes. A fuller analysis is needed to determine if the specific targets indeed made “an effective contribution to military action” for purposes of Article 52(2) AP I, but with limited information at this time these attacks appear to be justifiable. The same assessment is needed for each industrial target attacked to determine whether it qualified as a “military objective” at the time of attack.

By contrast, the Ukraine Ministry of Ecology and Natural Resources reports that a sewage pumping station was destroyed and untreated wastewater is leaking into the Dnieper River. Targeting water supply treatment and sewerage facilities would more clearly be a breach of AP I, as these facilities are patently not military objectives.

Targeting at Nuclear Facilities

Russian targeting has taken on a whole new, terrifying dimension in this conflict, however, with respect to nuclear facilities. On 4 March 2022, just a week into the Russian invasion of Ukraine, Russian troops broke through Ukrainian defences in the town of Energodar and shelled the Zaporizhzhya Nuclear Power Plant. Damage resulted to buildings on the site including a training centre and laboratory which was set on fire. However, with six nuclear reactors at Zaporizhzhya it is fortunate that none of the reactors was damaged in the shelling and that there was no release in radioactive material.

In fact, only one of the reactors was operating at a significant level (60% power) at the time. As a result of precautionary measures taken by Ukrainian site staff, in accordance with Article 58(c) of AP I, three of the reactors had already been shut down with two more held in “low power mode.” Only two days prior to the attack, the Director General of the International Atomic Energy Agency (IAEA) outlined seven “indispensable pillars of nuclear safety and security” in relation to the conflict in Ukraine. Several of these “indispensable pillars,” he later reported, had been put at risk in the attack. Thus, he said, it was time for action in order to stop putting nuclear facilities at severe risk and “potentially endangering the safety of people and the environment in Ukraine and beyond.” Whether the Zaporizhzhya attack may have breached the enhanced protection for nuclear electrical generating stations provided by Article 56 of Protocol I has been analysed comprehensively elsewhere, but on this occasion, at least, the local population and the environment were spared the horrifying consequences of widespread radioactive contamination.

Radiation levels did spike at Pripyat and Chernobyl, however, on day one of the conflict when Russian special forces captured the former nuclear site following a reportedly short but intense period of fighting with Ukrainian forces. During the fighting, radiation levels twenty times higher than normal were reportedly detected in Chernobyl’s c.30km radius Exclusion Zone, likely caused by tanks and other heavy military vehicles disturbing the contaminated soil. As the shortest route between the Belarus border and the Ukrainian capital the prospect of an invasion through Pripyat and Chernobyl had been easily anticipated by Ukrainian forces.

Clearly, Ukraine could have avoided stationing troops in the area altogether and declared it to be a non-defended locality under Article 59 of AP I or sought Russian agreement to confer the status of Demilitarized Zone under Article 60, AP I. Either approach might have avoided any threat to the site from active hostilities. With Article 59 protection, Russian troops would likely still have moved through the Chernobyl area to occupy the facility. However, there is an argument that such action would be justified to secure the radioactive waste materials that are stored at the site against possible use in improvised explosives, for example, by opposing forces.

What of specific environmental protections? Article 55 of AP I requires  that “care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage.” Certainly, the very high damage threshold contained in that provision is well-noted and largely renders the provision nugatory. In taking the conflict to Chernobyl, however, and risking a large release of radioactive substances, the Russian actions could arguably breach the provision’s precautionary due diligence formula and threshold.

Attacks on other nuclear facilities are much harder to justify. For example, on 26 and 27 February, Ukraine reported missile strikes at radioactive waste disposal facilities near Kharkiv and Kyiv which caused damage to an electrical transformer but thankfully, again, resulted in no release of radiation. If these facilities were directly targeted, it is difficult to see how such radioactive waste facilities would fulfil the definition of a “military objective.”

Similarly, the attack on two occasions of the National Science Center Kharkiv Institute of Physics and Technology (KIPT) appears, without more information, to be a clear civilian object. The research facility houses a nuclear reactor that reportedly contains 37 nuclear fuel assemblies. Significant damage to the building was recorded from the 6 and 10 March attacks, including the complete destruction of a 0.4kV substation, but radiation levels remained unchanged. According to the IAEA, the facility was used for “research and development and radioisotope production for medical and industrial applications.”

Assuming the facility was directly targeted, it is difficult to see how it would qualify as a military objective. While it clearly housed a range of science departments, it did not undertake research related to military applications. If somehow it were classifiable as a military objective a question is then raised as to whether, since it is a nuclear research facility and not a “nuclear electrical generating station,” it would fall within the remit of the Article 56 enhanced protections. The answer to this question is unclear. If Article 56 can be taken as recognizing large-scale radiation release as a “dangerous force” then arguably a civilian research facility should be viewed as falling within its scope.

With the Zaporizhzhya plant now under Russian control, the laws and responsibilities of occupation law apply. The principal obligation is, thus, the duty to ensure public order and security on the one hand, and civil life, including ensuring the welfare of the local population, on the other (Article 43 of the 1907 Hague Regulations). Thus, Russian forces have a clear obligation to ensure the security of the facility and to ensure that its workers are able to continue their roles in safety.

Russia is very experienced in overseeing the operation of nuclear power plants, which is of paramount concern in occupations of such dangerous facilities. However, Russia’s former occupation of the Chernobyl nuclear facility illustrates shortcomings. As workers at the site did not trust Russian forces to guarantee their safety to return home and vice versa, they refused to rotate shifts for over three weeks. Stress, hunger, and tiredness would undoubtedly have taken their toll on the workers and the IAEA notably expressed its concern about the growing risk if workers could not safely change shift.

Indeed, before an eventual shift change was facilitated on 20 March, staff at the Chernobyl site reported that they were “no longer carrying out repair and maintenance of safety-related equipment, in part due to their physical and psychological fatigue after working non-stop for nearly three weeks.” The site also lost connection to outside electrical power (needing to rely on back-up diesel generators) and failed to submit radiation levels for several days. The electricity supply is vital to ensure continued operation of the ventilation systems and cooling down of spent nuclear fuel.

It is not clear how the outside electricity cables became damaged. One possibility is due to deliberate damage by the occupying Russian forces. If this were the case it would suggest that Russian forces did not comply with their legal obligations as an occupying power to maintain security. However, admittedly, information remains patchy at this time. The electricity cables were apparently fixed within a few days by Ukrainian personnel attending the site, and radiation levels remained safe—only reportedly to be damaged again the same day, according to the Ukraine’s Ukrenergo National Energy Company.

A further risk has materialized in the Chernobyl area: that of forest fires. The Ukrainian Parliament reported that multiple fires have broken out in the Chornobyl Exclusion Zone, and local vicinity. The IAEA has also reported that it is not receiving any radiation data from the site, since remote monitoring systems went offline in February. Forest fires are quite common in the area but due to the disruption to local Exclusion Zone management the job of extinguishing the fires has been made more difficult. Again, if Russian forces failed to act to extinguish the fires, they would likely have breached their occupation obligations.

 Conclusions

The conflict in Ukraine presents all of the common wartime threats to the environment, as well as some terrifying new ones due to the presence of chemical plants and nuclear power facilities. Now might be the right time for States to consider strengthening the International Law Commission’s Draft Principles on the Protection of the Environment in relation to Armed Conflict to ensure that the legal protections for nuclear facilities are fully considered.

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Karen Hulme is Professor of Law at the School of Law, University of Essex, United Kingdom.

Photo credit: Piqsels