About the author(s):
Leah Sade Olasehinde is an international jurist specializing in international criminal law, international humanitarian law, and international human rights law. She has previously worked with Civitas Maxima, collaborating with teams of investigators and lawyers to investigate and document international crimes and build universal jurisdiction cases. In previous roles, Leah has conducted research on the architectural framework on torture and its consequences on the physical and mental health of survivors, and has provided legal support to asylum seekers in their claims for international protection in France and the UK.
Source: https://www.peace-justice.org/war-and-ecocide/
This post forms part of the Wagner Symposium hosted by the Armed Groups and International Law blog. The introductory post can be found here. The symposium seeks to foster deeper discussion on how best to address the Wagner Group and its affiliated entities.
The environment has been described as the ‘silent casualty’ of armed conflict. Wherever armed conflict arises, warfare causes environmental destruction. The Wagner group is involved in multiple armed conflicts, to a seemingly different extent each time, with ranging operations resulting in environmental damage. The scattered nature of the legal protection of the environment during armed conflicts could allow for different legal tools to be applied each time the group intervenes in a conflict a different way.
Destruction of the environment during armed conflict is prohibited by different rules under international humanitarian law (IHL). ‘Green justice’ could be achieved through criminal liability under international criminal law (ICL), and ‘green recovery’ could be pursued through international human rights law (IHRL), and state responsibility under international law.
This article aims to provide a brief overview of the legal framework covering the protection of the environment during armed conflicts, and apply the different regimes to a number of reported Wagner operations across Africa, the Middle East, and Ukraine.
Limited regulation of the conduct of hostilities affecting the environment
The main criminal provision under IHL, grave breaches, does not directly reference the environment, and only sanctions its destruction if it constitutes property or a civilian object. There is a general protection of the environment under IHL: it is considered a prime facie civilian object, so cannot be targeted as long as it remains as such. IHL protects the environment from ‘widespread, long-term and severe damage’, extending from a prohibition of means or methods of warfare causing such damage, to a prohibition of using the environmental destruction as a weapon.
Elements of the environment, from water sources to oil fields, could be considered ‘objects indispensable to the survival to the civilian population’, or ‘works or installations containing dangerous forces’, and accorded a greater protection. Otherwise, restrictions on weapons considered ‘indiscriminate’ could also be invoked to protect the environment.
The ENMOD Convention prohibits ‘environmental modification techniques’ which are used to cause widespread, long-lasting or severe damage to the environment. This Convention is, however, criticised for its limited scope.
Alternative avenues for accountability
The Wagner group’s activities in Africa and the Middle East have been reported to cause direct environmental destruction. Purposive interpretations and creative combinations of legal sources may be needed to provide an adequate framework to sanction the damage caused by these operations.
(i) Mali – Scorched earth tactics as prohibited warfare
In 2021, Wagner came to support Mali’s government in its fight against non-state armed groups (NSAGs) which were identified as jihadist groups. Through its targeting of Arabic-speaking and nomadic minorities, the group has been reported to have adopted a ‘scorched earth’ policy.
The destruction of villages and nomadic camps, including homes, agricultural land, water supplies, and infrastructure, resulted in damage to the natural environment. This could constitute the violation of IHL Customary Rules 1, 9, 11, 43, 45, and 72. Attacks targeting the environment violate the principle of distinction and the prohibition of targeting civilian objects, and could also be qualified as indiscriminate. By adopting such strategies to chase away and instil fear in local populations, the group can be considered to be using the destruction of the environment as a weapon. The tactic could also be seen as a method intended or expected to cause widespread, long-term and severe damage to the environment. The poisoning of water supplies could also constitute a violation of IHL. Here, IHL prohibits scorched earth techniques. However, it does not criminally sanction them.
Limited provisions in the Rome Statute sanction some of these IHL violations as war crimes of destruction of property (Art 8(2)(e)(xii) Rome Statute) and employing poison (Art 8(2)(e)(xiii) Rome Statute). IHL violations of targeting the natural environment as a civilian object, or using the environment or its destruction as a weapon, are not covered in provisions relating to war crimes committed in NIACs. However, the fact that these operations are reported to target Arab and nomad groups could qualify them as the crime against humanity of extermination (Art 7(1)(b) Rome Statute). An eco-centric interpretation of the elements of this crime would have to be adopted for the ‘inflicting conditions of life’ to apply to environmental destruction. While the same targeting of specific ethnicities could constitute genocide it would have to reach a high threshold set in international law (Pre-Trial Chamber I, Al Bashir).
Finally, corporate criminal liability could apply to environmental destruction caused by scorched earth tactics. However, at the domestic level, various approaches are used to attribute criminal liability to corporations, and some jurisdictions even refuse this possibility. Attempts to develop corporate criminal liability for environmental crimes are so far limited to either applying legal fictions and attributing a mens rea to corporate entities, or invoking a company’s vicarious liability through its employees. With so little cohesion in the attribution of criminal responsibility to corporations under domestic law, the concept of international criminal corporate liability would unlikely be robust enough to sufficiently sanction Wagner’s activities.
Here, the current provisions under IHL and ICL relating to massive environmental destruction must be given positive eco-centric interpretations to fully sanction the damage caused by scorched earth policies.
(ii) Libya – Sanctioning the release of toxins from unexploded land mines
In Libya, Wagner provided support to NSAG leader General Hafter from around 2014, and was reported to have laid land mines across Tripoli.
There is wide research into the environmental consequences caused by land mines, resulting in cratering, soil erosion, and vegetation removal. Where elements of the environment that were damaged were the property of the adversary, this could constitute the war crime of the destruction of property.
Land mines also leak toxic heavy metals into soil and water supplies, causing substantial and long-term damage to the environment. Prohibitions relating to the use of toxins or poison as a weapon could not apply here, as the damage occurs from unexploded land mines as they corrode or decompose over time, and not the use of the weapon itself. However, this release of toxins could be considered prohibited incidental damage to the environment.
This particular IHL violation does not have a corresponding war crime in the Rome Statute provisions for NIACs, but its enforceability could be strengthened through a fundamental principle of International Environmental Law, the Polluter Pays Principle. It has been suggested that this principle be used to interpret treaty obligations (here, the obligation not to cause excessive incidental damage to the environment during the conduct of hostilities) to trigger responsibility for reparation of damage caused by pollution. As it follows the logic of state responsibility under international law, this principle would have to be stretched to apply to Wagner’s operations, to associate the groups’s violations of IHL with an obligation to bear the cost of ecological restoration.
Otherwise, IHRL has sufficiently codified the achieving of a non-toxic environment as a legally binding State obligation. This, combined with general principles of corporate social responsibility, such as the responsibility to prevent and mitigate negative social and environmental impacts of business activities, could oblige the state on whose territory Wagner-affiliated groups causes environmental damage to hold them accountable. However, given the different approaches taken by regional human rights courts on the environmental obligations of corporations, it has been stated that so far, there is ‘no comprehensive and effective mechanism to hold companies responsible’ for human rights violations relating to the environment.
Here, a combination of different legal sources of environmental protection could transform international legal prohibitions to binding obligations applicable to the environmental damage caused by toxins released by land mines laid by Wagner.
(iii) Sudan and Central African Republic – Exploitation of natural resources as ecocide
Wagner’s security services are widely reported to be provided in return for access to natural resources, from gold and diamond mining in Sudan, to timber trafficking in the Central African Republic. As Wagner-affiliated groups seize control over resources, they are mined, processed, and extracted through the violent repression of local communities and without regard for environmental protection obligations. This ‘business model’ is now widely considered to constitute a major source of funding for Russia’s war in Ukraine. It has allowed Russian authorities to circumvent international financial and political sanctions and shirk international accountability for its operations in Ukraine, and demonstrates an intrinsic link between the conflicts.
These activities have caused destruction to the natural environment, such as the release of harmful toxins into soil and water systems, landslides, and deforestation.
While this resource exploitation is inherently linked to Wagner’s involvement in armed conflict, IHL would not apply as it regulates the conduct of hostilities. It is also difficult to apply any of the present provisions of the Rome Statute to the environmental destruction caused by these activities. The act of extracting minerals and natural resources could potentially amount to pillage (Art 8(2)(e)(v) Rome Statute), but, regretfully, none of the current provisions could apply to the environmental damage caused in the process.
These gaps could be covered by the proposed international crime of ecocide. The resource exploitation would have to be unlawful (not applicable in cases where Wagner had been attributed a license) or wanton, meaning ‘with reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated’. The benefit to whom may have to be clarified, to ensure that the substantial economic and strategic gain that Wagner reaps from these operations does not skew the proportionality test. It would not be difficult to establish that these acts were committed with the knowledge that they would likely cause ‘severe and widespread or long-term damage to the environment’.
Another method of combating what has been described as the core modus operandi of Wagner is to integrate Artisanal Gold Mining and other similar natural resource trade into legal supply chains. The smuggling of these resources through Syria, to markets in Europe and the Middle East, exposes the process to different UN, Interpol, OECD, and supply chain mechanisms. These mechanisms are aimed at preventing and criminally sanctioning illicit profiteering, protecting exploited communities, and reducing the environmental impact of mining.
Developing an international crime of ecocide could fill in the gaps left by the limitations of the core crimes of the Rome Statute. Otherwise, stricter supply chain controls could provide another avenue for achieving justice for the environmental destruction suffered by communities exploited for their natural resources.
(iv) Ukraine – Attacks on the environment as a weapon of war
The environment has been said to have been ‘weaponised’ during Russia’s war on Ukraine. The Ukrainian Office of the Prosecutor General has identified more than 250 potential environmental war crimes, some of which could be attributed to the Wagner Group. Damage ranges from water, air, and soil pollution, to disruption to the ecosystem and loss of biodiversity.
A recent policy paper has indicated the possibility of holding Russia responsible and liable for environmental destruction caused during the conflict. The main challenge in applying this to Wagner’s operations would be establishing a sufficient connection between the Russian state and the group, which is subject to debate (and Russia fervently denies). Once this link has been established, the task will be of assessing and quantifying the damage caused, and demanding reparations from Russia before a court.
At the international level, environmental destruction in Ukraine has received varying levels of attention. On the one hand, environmental damage has figured as part of a Resolution of the Parliamentary Assembly of the Council of Europe urging the UN to establish a Commission of Inquiry to investigative crimes committed by Wagner. However, this Resolution only invokes environmental damage as violations of IHL and IHRL, and war crimes, rather than proposing the destruction of the environment as a stand-alone crime or violation. In addition, environmental destruction has been left aside the scope of the upcoming Special Tribunal for the Crime of Aggression, which seems to leave all international crimes aside from those ‘directly related to the decision to wage war’ to the ICC. This restrictive approach therefore exposes any destruction to the environment to the limitations of the Rome Statute mentioned above.
Recent news on the adoption of a new Convention on the Protection of the Environment through Criminal Law at the Council of Europe has demonstrated that accountability for environmental crimes is on the forefront of international politics. This treaty imposes legally binding obligations on State parties to criminalise different environmental crimes, including crimes akin to ‘ecocide’, committed on their territories.
The protective regime of the Convention includes criminal liability for negligence, obliges States to adopt measures allowing for criminal or administrative sanctions to be imposed onto corporations, and provides for international co-operation. If this Convention is applied to Wagner’s operations in Ukraine, the solidification of this criminalisation and its elevation to an international level provides a more robust framework for the pursuit of criminal liability against the group and its members. However, without a centralised forum to hold environmental criminal cases, the impact of this Convention on an international level will remain limited. Any criminal cases resulting from these provisions will have to be heard before the domestic courts of State parties, and will be subject to fundamental differences in each State’s legal framework.
Conclusion
It is possible to hold the Wagner Group accountable, under international law, for the environmental destruction its members have caused across Africa, the Middle East, and Ukraine. As the Group’s activities and relationships with state and non-state actors range from country to country, the variety in the legal frameworks protecting the environment and sanctioning its destruction can be applied in different ways to diverse operations. However, as the current provisions stand, they must be interpreted with an environmentally-protective approach to be effective. In addition, the lack of centralisation in the international framework protecting the environment and sanctioning its destruction undermines its effectiveness. This risks allowing the full scale of environmental damage caused by Wagner’s operations to fall through legislative and institutional cracks.