Logo Assembly Logo Hemicycle

Environmental impact of armed conflicts

Doc. 15674: compendium of written amendments | Doc. 15674 | 24/01/2023 | Final version

Contents

A Draft Resolution
B Draft Recommendation

Compendium index

Amendment 4 Amendment 5 Amendment 6 Amendment 1 Sub-amendment 1 to amendment 1 Amendment 2 Amendment 3 Sub-amendment 1 to amendment 3 Sub-amendment 1 to amendment 4 Sub-amendment 1 to amendment 6

Caption: AdoptedRejectedWithdrawnNo electronic votes

ADraft Resolution

1Armed conflicts, wars and military aggression destroy human lives and leave deep scars on human living space. Environmental damages resulting from armed conflicts can be multifaceted, severe, long-lasting and mostly irreversible. They not only harm natural habitats and ecosystems but can also affect human health well beyond the conflict area and long after the conflict is over. The human rights to life and to a healthy environment are thus undermined.
2The existing international legal framework provides for direct and indirect protection of the environment in times of armed conflict to a certain extent, based on international humanitarian law instruments such as the United Nations Convention on the Prohibition of Military or Any Other Hostile Use of Environment Modification Techniques (ENMOD convention), and the Additional Protocol to the Geneva Conventions relating to the Protection of Victims of International Armed Conflicts (Protocol I). In addition, international law doctrine came to accept the interplay between international humanitarian law and international human rights law in the 1996 advisory opinion of the International Court of Justice on the “Legality of the Threat or Use of Nuclear Weapons”. The Parliamentary Assembly notes that the co-application of human rights and humanitarian law during times of armed conflict has also been confirmed by the United Nations Human Rights Committee (via general comments) and the European Court of Human Rights (via case law).
3The Assembly therefore considers that international human rights and humanitarian law imposes substantive and procedural obligations on States involved in armed conflicts. With the increased worldwide acceptance that the right to a healthy environment constitutes a human right, there are grounds to affirm that States may have extraterritorial obligations arising in and from armed conflicts.
4The Assembly recalls that the norms of customary international law provide indirect protection of the environment during armed conflicts. To this end, it welcomes the Red Cross Guidelines for Military Manuals Instructions (“ICRC Guidelines”) as updated in 2020 which contribute, practically and effectively, to raising awareness about the need for the protection of the natural environment against the impact of armed conflicts. However, the environment is thus protected only in an incidental manner, subordinated to wartime requirements, and conditioned on humanitarian imperatives.
5The Assembly commends the work of the International Law Commission (ILC) of the United Nations on the draft principles on the protection of the environment in relation to armed conflicts. It welcomes the endorsement of these principles by the United Nations General Assembly on 7 December 2022 and encourages their widest possible dissemination across all European States and their global partners.
6The Assembly notes that the Council of Europe has developed several legal instruments to protect the environment: the Convention on Civil Liability for Damage resulting from Activities Dangerous to the Environment (ETS No. 150), the Convention on the Protection of Environment through Criminal Law (ETS No. 172), the Convention on the Conservation of European Wildlife and Natural Habitats (ETS No. 104, “Bern Convention”) and the Landscape Convention (ETS No.176). However, these conventions either do not explicitly cover or explicitly exclude damage caused by an act of war or military hostilities. The currently ongoing revision of the criminal law convention (ETS No. 172), which is also open to non-member States, offers the possibility of establishing a new “ecocide” criminal offence at Council of Europe level. The Assembly also notes that the Committee of Ministers Recommendation CM/Rec(2022)20 on human rights and the protection of the environment, adopted on 27 September 2022, mentions “the environmental harm stemming from armed conflicts”, reaffirms that “all human rights are universal, indivisible, interdependent and interrelated” and urges steps to recognise the right to a healthy environment at the national level as a human right.
7Severe destruction or deterioration of nature that could be qualified as ecocide may occur in times of peace or war. It is necessary to codify this notion in both national legislation, as appropriate, and international law. The Assembly therefore strongly supports efforts to amend the Rome Statute of the International Criminal Court, so as to add ecocide as a new crime. It reiterates its call, contained in Resolution 2398 (2021) “Addressing issues of criminal and civil liability in the context of climate change”, as regards the need for “recognising universal jurisdiction for ecocide and the most serious environmental crimes” and introducing “the crime of ecocide into […] national criminal legislation”.
8The Assembly deplores the fact that despite an impressive international legal arsenal, important gaps subsist in protecting the environment in the context of armed conflicts and their aftermath. The existing legal instruments lack universality in terms of ratifications, precision of terms used (such as for qualifying “widespread, long-lasting, or severe effects”), a comprehensive coverage of offences and a sufficiently broad scope of application. Moreover, a permanent international mechanism to monitor legal infringements and address compensation claims for environmental damage is also missing.
9The Assembly urges Council of Europe member States to take all necessary measures to outlaw and prosecute the use of prohibited weapons in the course of armed conflicts that, among other ills, bring disproportionate environmental impact and render human life in the affected area impossible.
10Considering that the Council of Europe has served as a laboratory of new legal developments to defend the values of human rights and the rule of law in Europe and beyond, the Assembly believes that the Organisation should take the lead in elaborating new legal instruments to guide member States and beyond in preventing massive environmental damage and reducing the scale of such damage as far as possible during armed conflicts and their aftermath. It should pave the way towards the international recognition of the crime of ecocide. With this in mind, and referring to the above considerations, the Assembly calls on the member States of the Council of Europe, as well as observer States and States whose parliament enjoys observer or partnership for democracy status with the Assembly to:
10.1build and consolidate a legal framework for the enhanced protection of the environment in armed conflicts at national, European and international levels by:
10.1.1ratifying the ENMOD convention and Protocol I to the Geneva Conventions relating to the Protection of Victims of International Armed Conflicts, if they have not yet done so;
10.1.2taking steps to support the creation of a permanent international mechanism to monitor legal infringements and address compensation claims for environmental damage resulting from armed conflicts;
10.1.3supporting practical implementation of the principles on the protection of the environment in relation to armed conflicts adopted by the United Nations General Assembly and promoting their dissemination through relevant domestic institutions, diplomatic channels and international stakeholders;
10.1.4promoting a more coherent and comprehensive reading of the existing legal rules for protecting the environment in armed conflicts;
10.1.5updating their legal arsenal to criminalise and effectively prosecute ecocide and taking concrete steps to amend the Rome Statute of the International Criminal Court in order to add ecocide as a new crime;

24 January 2023

Tabled by Ms Olena KHOMENKO, Ms Iwona ARENT, Mr Kazimierz MATUSZNY, Mr Tomasz LATOS, Mr Markus WIECHEL, Ms Beatrice TIMGREN, Mr Bob van PAREREN, Ms Rita TAMAŠUNIENĖ, Mr Arkadiusz MULARCZYK, Ms Yelyzaveta YASKO, Ms Lesia ZABURANNA, Mr Yuriy KAMELCHUK, Ms Mariia MEZENTSEVA-FEDORENKO, Ms Yuliia OVCHYNNYKOVA, Ms Larysa BILOZIR, Mr Oleksii GONCHARENKO, Mr Dmytro NATALUKHA, Mr Pavlo BAKUNETS

Votes: 98 in favor 1 against 2 abstentions

In the draft resolution, after paragraph 10.1.5, insert the following paragraph:

"supporting the establishment of standard methodologies for the collection of evidence for the environmental harm and calculation of environmental damage and related capacity building efforts;"

Explanatory note

Ukrainian authorities have detailed 7 methodologies to calculate environmental harm - to land, forests, air, water (both for marine and watercourses), illegal exploitation of resources, nature reserve funds. Setting international benchmarks and implementing them would supplement the Ukrainian effort to calculate and eventually compensate environmental damage caused by Russian aggression.

24 January 2023

Tabled by the Committee on Social Affairs, Health and Sustainable Development

Votes: 71 in favor 7 against 11 abstentions

In Amendment 1, delete the words:

"and calculation of environmental damage and related capacity building efforts"

10.2close gaps between different fields of law and the reality on the ground in order to adequately protect human living space, the environment, and human rights to life and to a healthy environment in the context of armed conflicts by:
10.2.1strengthening State responsibility for environmental damage extending beyond their territorial limits, based on extraterritorial human rights obligations and the functional impact- model in situations where the impact is direct and reasonably foreseeable;
10.2.2considering the drafting of a new regional legal instrument or treaty under the Council of Europe’s auspices, with a view to clarifying and filling the gaps identified in the existing legal regime (notably regarding the damage threshold, enforcement, liability, and the due diligence principle);
10.2.3conducting a study, under the auspices of the Council of Europe, on the possible interplay between existing international criminal law and environmental harm occurring during armed conflicts, in particular as regards the possibility to invoke existing war crimes;
10.2.4actively participating in the revision process of the Council of Europe’s convention No. 172 in order to ensure that the revised convention would apply also in the context of armed conflicts, wartime or occupation;
10.2.5deploying sufficient means to ensure proper monitoring and implementation of commitments under the Council of Europe treaties, in particular the Bern Convention and the Landscape Convention;
10.2.6ensuring that the relevant international legal framework is interpreted in a more open-ended manner, so as to offer more adequate protection of both the environment and human health;

24 January 2023

Tabled by Ms Olena KHOMENKO, Mr Kazimierz MATUSZNY, Mr Markus WIECHEL, Ms Beatrice TIMGREN, Mr Bob van PAREREN, Ms Yelyzaveta YASKO, Ms Lesia ZABURANNA, Ms Iryna KONSTANKEVYCH, Mr Yuriy KAMELCHUK, Ms Yuliia OVCHYNNYKOVA, Ms Mariia MEZENTSEVA-FEDORENKO, Ms Larysa BILOZIR, Mr Dmytro NATALUKHA, Mr Oleksandr MEREZHKO, Mr Pavlo BAKUNETS

Votes: 23 in favor 68 against 9 abstentions

In the draft resolution, paragraph 10.2.6, after the words "open-ended manner,", insert the following words:

"including by means of spreading the official interpretation of applicable international environmental laws,"

Explanatory note

To ensure a more open-minded interpretation of the applicable law, states might explore the example used in the cyberspace domain. This step would also contribute to the implementation of paragraphs 10.1.3-10.1.4 as states rely on ILC work and shape a coherent and comprehensive reading of the existing legal rules.

10.2.7mapping areas of particular environmental importance or sensitivity, based on existing protected areas (such as world natural heritage sites or natural reserves), in anticipation of any form of armed conflict, and foreseeing the demilitarisation of such areas in the case of a military conflict;

24 January 2023

Tabled by Ms Olena KHOMENKO, Ms Iwona ARENT, Mr Kazimierz MATUSZNY, Mr Tomasz LATOS, Mr Markus WIECHEL, Ms Beatrice TIMGREN, Mr Bob van PAREREN, Ms Rita TAMAŠUNIENĖ, Ms Yelyzaveta YASKO, Ms Lesia ZABURANNA, Ms Iryna KONSTANKEVYCH, Ms Mariia MEZENTSEVA-FEDORENKO, Ms Yevheniia KRAVCHUK, Ms Larysa BILOZIR, Mr Yuriy KAMELCHUK, Mr Oleksii GONCHARENKO, Mr Dmytro NATALUKHA, Mr Oleksandr MEREZHKO, Mr Pavlo BAKUNETS

Votes: 103 in favor 0 against 3 abstentions

In the draft resolution, paragraph 10.2.7, after the words "natural reserves),", insert the following words:

"and areas that might need to acquire a special protection status (e.g. nuclear power plants, hydropower plants),"

Explanatory note

The Russian Federation underminder the safety around Chernobyl plant and keep under threat the Zaporizhzhia nuclear power plant. The need for similar protection to hydro power stations is evident in Ukrainian case since it may result in a mass death toll and environmental consequences, as with Dnipro HPP.

24 January 2023

Tabled by the Committee on Social Affairs, Health and Sustainable Development

Votes: 78 in favor 10 against 15 abstentions

In Amendment 3, delete the words:

"(e.g. nuclear power plants, hydropower plants)"

10.2.8adapting national military manuals in the light of the updated ICRC Guidelines, the United Nations principles on the protection of the environment in relation to armed conflicts and the evolving international legal framework;
10.2.9considering establishing domestic and/or regional solutions to provide relief to environmental refugees fleeing a military conflict, given the international legal vacuum on this matter;
10.2.10promoting knowledge of and compliance with international legal standards protecting the environment among non-state actors involved in armed conflicts.

BDraft Recommendation

1The Parliamentary Assembly refers to its Resolution … (2023) “Environmental impact of armed conflicts” and underscores the role of the Council of Europe as a guardian of human rights and the rule of law in times of peace and war. It deplores the devastating effects that armed conflicts have on the environment as a source of living and insists on the co-application of human rights and humanitarian law during times of armed conflict, as confirmed by the United Nations Human Rights Committee and the European Court of Human Rights.
2The Assembly moreover underlines the indivisibility of human rights and considers that, with the increased acceptance that the right to a healthy environment constitutes a human right, the member States of the Council of Europe should take ambitious measures to improve the legal framework to adequately protect human living space, the environment, and the human right to life and to a healthy environment in the context of armed conflict.
3The Assembly therefore recommends that the Committee of Ministers:
3.1 urge member States and observers to ratify the United Nations Convention on the Prohibition of Military or Any Other Hostile Use of Environment Modification Techniques (ENMOD convention) and the Additional Protocol to the Geneva Conventions relating to the Protection of Victims of International Armed Conflicts (Protocol I), if they have not yet done so;
3.2mandate a competent body to study the feasibility of drafting a new regional legal instrument or treaty under the Council of Europe’s auspices, with a view to identifying and filling the gaps identified in the existing legal regime for the protection of the environment and human rights to life and to a healthy environment in armed conflicts, wartime or occupation (notably regarding the damage threshold, the characterisation of intent, behaviours that must be sanctioned, entities that should be held liable, enforcement, the scale of liability and proper interpretation of the principles of proportionality, military necessity, and due diligence);

24 January 2023

Tabled by Mr Oleksii GONCHARENKO, Ms Yevheniia KRAVCHUK, Mr Oleksandr MEREZHKO, Ms Rita TAMAŠUNIENĖ, Ms Olena KHOMENKO, Mr Serhii SOBOLIEV, Mr Serhii KALCHENKO, Ms Iryna KONSTANKEVYCH, Ms Yelyzaveta YASKO, Ms Lesia VASYLENKO, Mr Yuriy KAMELCHUK, Ms Lesia ZABURANNA

Votes: 111 in favor 0 against 2 abstentions

In the draft recommendation, after paragraph 3.2, insert the following paragraph:

"urge member and observer States to make changes to the existing conventions on the environmental protection of certain areas and to propose mechanisms for the implementation of their principles and for monitoring and reporting on the conventions in times of armed conflicts. For example, the Convention on the Protection of the Black Sea Against Pollution deals only with peace time implementation, despite a significant environmental effect caused by the Russian occupation of Crimea, the illegal construction of the Kerch bridge, and current military aggression against Ukraine, including the impossibility at presenting a national report on the state of pollution of the Black Sea due to the absence of effective control over the significant water areas as a result of the illegal occupation.

Explanatory note

Most of the existing conventions on the environmental protection of certain areas do not envisage mechanisms for the implementation and monitoring or reporting on their principles in times of armed conflicts.

24 January 2023

Tabled by the Committee on Social Affairs, Health and Sustainable Development

Votes: 106 in favor 2 against 4 abstentions

In Amendment 4, delete the second sentence

3.3mandate the governing body of the Convention on the Conservation of European Wildlife and Natural Habitats (ETS No. 104, “Bern Convention”) to elaborate recommendations regarding the protection of environmentally sensitive areas during armed conflicts, to study the feasibility of an additional Protocol to the Convention to this end, and to consider creating a review mechanism to ensure that the recommendations are implemented by States parties (notably, transposed into domestic law, incorporated into military doctrine, and shared broadly with a view to developing good practice);
3.4ensure that the revised Council of Europe Convention on the Protection of Environment through Criminal Law (ETS No. 172) applies also in the context of armed conflicts, wartime or occupation, and covers ecocide;
3.5allocate sufficient means to ensure proper monitoring and implementation of commitments under the Council of Europe treaties, in particular the Bern Convention and the Landscape Convention (ETS No. 176);
3.6promote and disseminate the United Nations principles on the protection of the environment in relation to armed conflicts;
3.7support the creation of a permanent international mechanism to monitor legal infringements and address compensation claims for environmental damage resulting from armed conflicts;
3.8 encourage the European Court of Human Rights to use the functional impact-model with jurisdiction whenever the question of the extraterritorial application of human rights arises in situations of armed conflict or occupation;
3.9encourage member States to map areas of particular environmental importance or sensitivity in anticipation of any form of armed conflicts and to foresee the demilitarisation of such areas, in case a military conflict breaks out;

24 January 2023

Tabled by Mr Oleksii GONCHARENKO, Mr Bob De BRABANDERE, Mr Oleksandr MEREZHKO, Ms Olena KHOMENKO, Ms Rita TAMAŠUNIENĖ, Ms Larysa BILOZIR, Mr Serhii SOBOLIEV, Mr Serhii KALCHENKO, Ms Iryna KONSTANKEVYCH, Ms Yelyzaveta YASKO, Ms Lesia VASYLENKO, Mr Yuriy KAMELCHUK, Ms Lesia ZABURANNA

Votes: 34 in favor 65 against 11 abstentions

In the draft recommendation, at the end of paragraph 3.9, insert the following words:

"and in doing so, not to limit the international right of self-defence according to Article 51 of the United Nations Charter."

Explanatory note

Measures to protect the environment should not be relaxed in cases where an aggressor achieves their objectives and should not prevent member States from self-defence.

3.10call on member States to update their legal arsenal to criminalise and effectively prosecute ecocide, to establish domestic and/or regional solutions to provide relief to environmental refugees fleeing a military conflict, and to take concrete steps to propose amendment of the Rome Statute of the International Criminal Court in order to add ecocide as a new crime.

24 January 2023

Tabled by Mr Oleksii GONCHARENKO, Ms Yevheniia KRAVCHUK, Mr Bob De BRABANDERE, Mr Oleksandr MEREZHKO, Ms Olena KHOMENKO, Mr Serhii SOBOLIEV, Ms Larysa BILOZIR, Ms Rita TAMAŠUNIENĖ, Mr Serhii KALCHENKO, Ms Iryna KONSTANKEVYCH, Ms Yelyzaveta YASKO, Ms Lesia VASYLENKO, Mr Yuriy KAMELCHUK, Ms Lesia ZABURANNA

Votes: 116 in favor 0 against 4 abstentions

In the draft recommendation, after paragraph 3.10, insert the following paragraph:

"elaborate upon the recommendations to the member States about the protection of critical infrastructure, the damage of which as a result of military activities or terrorist acts can have substantial environmental consequences (for instance nuclear power stations, dams, hydraulic facilities, amongst other things)."

Explanatory note

Russian military aggression against Ukraine and especially the occupation of Zaporizhya nuclear power plant show great need for this recommendation.

24 January 2023

Tabled by the Committee on Social Affairs, Health and Sustainable Development

Votes: 81 in favor 14 against 13 abstentions

In Amendment 6, delete the words :

", the damage of which as a result of military activities or terrorist acts can have substantial environmental consequences (for instance nuclear power stations, dams, hydraulic facilities, amongst other things)"