Na Mezhi Engl 29-11 Layout 1

ON THE EDGE OF SURVIVAL: Extermination of the environment in the course of the armed conflict in the East of Ukraine

Kyiv 2017 UDC +349.6+341.3 BBK 67.54 N12

Preparation and publication was conducted under support of the Ministry of the Foreign Affairs of Canada in the scope of the project “Human Rights Above All” that implemented by the Ukrainian Helsinki Human Rights Union Views and interpretations, provided in this publication, do not necessary represent t he views of the Canadian Government. Only authors and the UHHRU are responsible for the content of publication. Global Affairs Affaires mondiales Canada Canada

General edition: A. P. Bushchenko

The author’s group: A. B. Blaga — Chapters 2, 3 (together with M. O. Medvedyeva and T. R. Korotkyy) I. V. Zagorodnyuk — Chapter 4 (together with V. V. Parkhomenko) T. R. Korotkyy — Conclusions and Chapter 1 (together with M. O. Medvedyeva) and 3 (together with M. O. Medvedyeva and A.B. Blaga) O. A. Martynenko — Summary M. O. Medvedyeva — Chapter 1 (together with T. R. Korotkyy) and 3 (together with T. R. Korotkyy and A.B. Blaga) V. V. Parkhomenko — Chapter 4 (together with I. V. Zagorodnyuk) General idea and management of the fieldstudy — O. A. Bida

On the edge of survival: extermination of the environment in the course of the armed conflict in the East of Ukraine / A. B. Blaga, I. V. Zagorodnyuk, T. R. Ko- N12 rotkyy, O. A. Martynenko, M. O. Medvedyeva, V. V. Parkhomenko; under general edition of A. P. Bushchenko / The Ukrainian Helsinki Human Rights Union. — Ê.:, KYT, 2017. — 88 p. with pict. ISBN 978-966-2279-66-5 The publication is dedicated to the complex analysis of the environment in the conditions of the armed conflict in the East of Ukraine. International legal obligations of the states concerning environment protection during the armed conflict were disclosed. The specifics of bringing to liability for ecological damage, caused during the war, were analysed. On the basis of learning of the open sources and conducting the own monitoring visits by the UHHRU experst, the state and problematic issues of the situation with the environment protection in the East of Ukraine were determined. UDC +349.6+341.3 BBK 67.54

Foreword ...... 4

Summary ...... 5

Gratitudes ...... 6

List of abbreviations ...... 7

1. International legal protection of the environment at the period of armed conflict ...... 8

2. The armed conflict and the state of the environment protection in the East of Ukraine ...... 20 2.1. Usage of natural objects as military facilities ...... 21 2.2. Damage to water supply and wastewater constructions ...... 22 2.3. Flooding of mines ...... 23 2.4. Damage to ETL that supply electricity to the ecologically important oblects ...... 26 2.5. Damage to industrial facilities ...... 27 2.6. Illegal extraction of mineral resources ...... 29 2.7. Damage to agricultural enterprises and lands ...... 29 2.8. Damage to national natural parks ...... 30

3. Liability for environmental damage caused at the result of armed conflict ...... 33 4. “Protection of the natural environment during armed conflict”: results of a monitoring visit of the Ukrainian Helsinki Human Rights Union ...... 46 4.1. General information about protected areas in the conflict zone ...... 46 4.2. Protected areas in the ATO zone controlled by Ukrainian authorities ...... 48 4.3. Protected areas in occupation zone ...... 56 4.4. Factors affecting the ecosystem and biota ...... 58 4.5. Analysis of the work of control services ...... 64 4.6. References and additional sources of information ...... 68

Conclusions and Recommendations ...... 69

Annexes ...... 77

UHHRU 2017 3 FOREWORD

Under initiative of the UN General Assembly annually on 6 November the International Day for Preventing the Exploitation of the Environment in War and Armed Conflict is celebrated. Its purpose is drawing attention to the ecological consequences of the war and importance of refusal of mean- ingless damage caused to ecosystems in pursuit of military objectives. The UN notes that the damage to the environment in times of armed conflict im- pairs ecosystems and natural resources long beyond the period of conflict and often extends beyond the limits of national territories and the present generation. As it is known in May 2016 the United Nations Environment Assembly issued a resolution concerning commitment to protection of the environment in areas affected by armed conflict. And the UN In- ternational Law Commission at present is conducting revision of the international legal basis regarding protection of the environment before, during and after armed conflict with the purpose of developing guidelines which will more effectively contribute to conservation of the environment, especially in protected and environmentally sensitive areas that can be seriously affected by the war. In full, this problem applies to the situation in the Donbass. The long period of human use of natural resources Donetsk and Luhansk regions, the negative impact directly at all objects of the environment resulted in significant environmental degradation. Consequently, even before the outbreak of hostilities experts described the environmental situation in the east of Ukraine as crisis. The armed conflict and connected with it activities of military agents and the local population, in turn, led to a significant number of environmental destruction and established forms of use of natural resources. In particular, there are known facts of deforestation in the “gray zone”; use of preserved areas and natural landmarks in the area of conducting the ATO and the surrounding areas for military purposes; when mining the areas (even protected) maps are not created in all cases etc. But, unfortunately, the majority of the environmental consequences of war are ignored by modern laws. It is looking for answers to these and other issues at which the authors and experts who worked on this study directed their activities. In this study the international legal obligations of States to protect the environment during armed conflict and the features of bringing to liability for environmental damage inflicted during the war are analysed. Based on research of public sources and the own monitoring visit the condition and problematic issues of environmental protection in the East of Ukraine we analysed. We hope that elaborated recommendations will be useful for authorities while developing strategic documents and programs in the area of human rights protection in the context of the ATO. The Ukrainian Helsinki Human Rights Union expresses its sincere gratitude for the financial assistance in preparing this publication to the Ministry of the Foreign Affairs of Canada and to the Govern- ment of Canada.

Arkadiy Bushchenko, the executive director of the UHHRU

4 UHHRU 2017 SUMMARY

The results of the armed conflict in eastern Ukraine, apart from human losses, is significant damage to ecological systems and natural resources caused by violation of international principles and the national law. The ecological situation of Donbass, being in a state of crisis for a long time, during military operations has acquired signs of the environmental disaster. That is why the study is focused on the same time both at evaluating the caused damage and the problems of bringing to liability for environmental damage caused during the war. Materials of the research establish that environmental contamination with heavy metals (titanium, vanadium, strontium) due to shelling, poisoning of drinking water and the emergence of the contaminated waters of the Azov Sea and the Seversky Donets River as a result of flooding of mines, destruction of the vegetation cover and wildlife can lead to environmental catastrophe of Chernobyl level. Even now from 135 natural protected areas, located in the ATO zone, 38 are damaged partially or completely, 17% of forests and 24% of the steppes are affected from the military fires. Particular damage was caused to the regional landscape park “Donetskiy kryazh” which completely burned on the area over 3,000 hectares. Military operations are also accompanied by massive deforestation in the “grey zone”, using preserved areas and natural landmarks for military purposes, and uncontrolled mining of the area. Underlining the problem of bringing Russia as a state-aggressor to the liability for any damage to the environment of Ukraine, the authors propose to establish a special commission within the UN as well as strengthen the national legal mechanisms for the adoption of the laws “On compensation for damage caused to Ukraine by aggression of the Russian Federation” and “On the criminal punishment of individuals for the crimes of aggression, crimes against humanity and war crimes committed during the aggression of the Russian Federation against Ukraine”. It is proposed separately to develop methods of documenting and assessing the damages to the environment as a result of the military actions. Such a methodology should include drawing up regulations specifying the number and size of craters, remnants of parts of ammunition and level of contamination of the environment, the length of the trenches, damage from fires and etc. It is necessary to make a map of areas affected by the military operations in the area of the ATO, and in determining the scale of damage to the environment — to consider as a source of contamination the mine contamination and the costs of demining of the area. The block of recommendations concerning improvement of the national policy in the sphere of use of the natural resources and environmental protection in conditions of armed conflict, is addressed to the Ministry of Environment and Natural Resources, the Ministry of Defence, the leadership of military and civil administrations.

UHHRU 2017 5 GRATITUDES

Ukrainian Helsinki Human Rights Union and the authors of this publication are grateful for their assistance during the study, professional experience and knowledge that were shared with authors, as well as for their daily hard work in the field of conservancy in areas affected by the armed conflict to: Anatoly Hatsko — Head of the State Ecological Inspectorate in Luhansk region; Anatoly Getmanenko — Head of the Security Service of the Regional landscape park “Krama- torskiy”; Oleksandr Grek — Head of unit of the environmental monitoring of natural areas, flora and fauna of the State Ecological Inspectorate in Luhansk region; Viktor Dyakov — Head of the Research Department of the National Park “Svyati Hory”; Vitali Zalewski — Head of the NRF of the Department of Environment and natural resourses of the Donetsk Regional State Administration; Sergei Limanskiy — Head of department “Cretaceous Flora” of the Ukrainian steppe nature reserve of the NAS of Ukraine; Larissa Morozova — Head of Office of natural resources, state environmental expertise and public information support of the Environment Department of the Luhansk Regional State Administration; Vadim Moroz — Director of Luhansk Nature Reserve of NAS of Ukraine; Eugene Skubak — employee of the scientific department of the National Park “Svyati Hory”; Experts of the unit of Civil-Military Cooperation of the Armed Forces of Ukraine — Colonel Bogdan Viktorovich Kharchuk, Major Vitaliy Ivanovich Moskalenko.

6 UHHRU 2017 LIST OF ABBREVIATIONS

APC — armored personnel carrier, a variety of military equipment AP I — Additional Protocol I to the Geneva Conventions of 12 August 1949 Armed Forces, AFU — Armed Forces of Ukraine FHR — Forest Hunting Range (type of public institution) LNR — Luhansk Nature Reserve of the NAS of Ukraine (4 branches) IHL — international humanitarian law Ministry of Environment — Ministry of Environment and Natural Resources of Ukraine IAG — illegal armed groups (only separatists) NPP — National Natural Park, one of the highest categories of protected areas FFP — forestbelts for field’s protection TNR — territory of a nature reserve (eg., Reserve Fund, NPP, etc.) NRF — Nature Reserve Fund (protected areas and objects) RLP — Regional Landscape park USNR — Ukrainian steppe natural reserve CIMIC — bodies of civil-military cooperation (Civil-Military Cooperation)

UHHRU 2017 7 INTERNATIONAL LEGAL PROTECTION 1 OF THE ENVIRONMENT AT THE PERIOD OF ARMED CONFLICT

The issue of the international legal protection of the environment at the period of armed conflict is regulated by international humanitarian law (IHL), international criminal law, international environmental law and international human rights law. At the same time, regarding the issue of environmental protection in armed conflict, in the case of contradictions between the rules of the IHL and other norms of international law rules of IHL will have precedence1. International legal obligations of States to protect the environment during armed conflict are contained in both ordinary environmental treaties and special treaties, the condition of application of which is existence of armed conflict. To understand the specifics of application of the treaties of the first group we should focus on the general principles of impact of war on international treaties. The termination of an international treaty with the beginning of war is not the rule but the exception. It follows from interpretation of the provisions of the Vienna Convention on Law of International Treaties of 1969 on impossibility of implementation and fundamental change of circumstances (Articles 61 and 62), war is not a ground for the automatic termination of treaties, including environmental, members of which became parties of an armed conflict in peacetime. This conclusion is confirmed by the International Law Com- mission of the UN in the draft articles on effects of armed conflicts on treaties of 2011. Article 7 contains a reference to an indicative list of treaties the subject matter of which involves an implication that they continue in operation during armed conflict, among them — agreements on international environmental protection2. Most multilateral environmental agreements do not contain provisions on their operation in case of armed conflict. There are precisely two exceptions, first — the UN Convention on the Law of the Non-navigational Uses of International Water courses of 1997, which in Article 29, that has customary nature3, provides: International watercourses and related installations, facilities and other works shall enjoy the protection accorded by the principles and rules of international lawapplicable in international and non-international armed conflict; and the second — the UNESCO Convention concerning the Protection of the World Cultural and Natural Heritage of 1972, which in Article 11 (4) provides establishing the List of the World Heritage, which is in danger, indicating among the threatens, the danger of armed conflicts. The rules of IHL, including the provisions on environmental protection, is are intended for application in armed conflict. These rules are contained in the customary IHL and the Protocol additional to the Geneva Conventions of 12 August 1949 concerning the protection of victims of international armed conflicts of 8 June 1977 (hereinafter — the AP I) (Articles 35 and 55), Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques of 1977 (Convention ENMOD). The issues of bringing to liability for violation of the provisions of IHL are regulated by the international criminal law, especially the Rome Statute of the International Criminal Court (Art. 8).

1 International humanitarian law. Handbook on international legal protection of the environment in armed conflict / М. О. Medvedyeva, М. М. Gnatovskyy, Т. R.Korotkyy. — Odesa : Fenix, 2016. 2 Draft articles on the effects of armed conflicts on treaties, with commentaries 2011 // Yearbook of the International Law Commission. — 2011. — Vol. II, Part Two. — Mode of access: http://legal.un.org/ilc/texts/instruments/english/commentaries/1_10_2011.pdf 3 Dellapenna J.W. The customary international law of transboundary fresh waters // International Journal of Global Environmental Issues. — 2001. — Vol. 1, Nos. 3-4. — P. 264-305.

8 UHHRU 2017 International legal protection of the environment at the period of armed conflict

Customary international humanitarian law provides the obligation of States on environmental protection during armed conflict. The presence of an international custom is confirmed by the research of the International Committee of the Red Cross (ICRC) “Customary international humanitarian law” (Rules 43—45)4. The ICRC recognised as customary Rules 42 and 43 in their application to armed conflicts of both international and non-international character, Rules 44 and 45 — to armed conflicts of international character, and controversially — to armed conflicts of non-international character. Rule 43 determines that the general rules of conduct of hostilities shall apply to the natural environment. In particular: А) No part of the natural environment may be attacked, unless it is a military objec- tive5; В) Destruction of any part of the natural environment is prohibited, unless required by imperative military necessity6; С) Launching an attack against a military objective which may be expected to cause incidental damage to the environment which would be excessive in relation to the concrete and direct military advantage anticipated is prohibited7. According to Rule 44, Methods and means of warfare must be employed with due regard to the protection and preservation of the natural environment. In the conduct of military operations, all feasible precautions must be taken to avoid, and in any event to minimise, incidental damage to the environment. Lack of scientific certainty as to the effects on the environment of certain military operations does not absolve a party to the conflict from taking such precautions. States recognise that the natural environment shall be protected for the common good. The aim of the prevention principle is to predict and prevent environmental damage. In cases where the result of a military operation may be a risk of causing serious and irreversible damage, lack of full scientifically reasoned certainty shall not be used as an excuse to postpone the measures that could prevent such damage. Pursuant to Rule 45, The use of methods or means of warfare that are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment is prohibited. Destruction of the natural environment may not be used as a weapon. The parties to the conflict must observe this Rules and avoid the use of methods and means of conduct of war that can destroy the environment or cause it harm. In addition, this position reflects the agreement of the international community that the natural environment itself must not be used as a weapon of war. Therefore the intentional impact on the environment, which has a large-scale, long term or serious consequences, as a way of destruction, is prohibited.

4 Customary international humanitarian law. Rules // Ukrainian journal of international law. — 2006. — no. 2. — p. 7—16. 5 It is prohibited to attack any part of the natural environment unless it is a military objective is based on the general requirement that a distinction be made between military objectives and civilian objects. In particular, the military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and their total or partial destruction, capture or neutralization under existing circumstances currently provides a clear military advantage. The civil objects are objects which are not military targets. As civilian objects are considered primarily civilian districts, towns, villages, residential areas, apartment buildings, houses, schools, civilian vehicles, hospitals, medical institutions and medical departments, historical monuments, places of worship and cultural values and the environment on condition that in the end they do not become military targets. Attacks on such objects are usually disapproved. 6 The principle of necessity requires that parties to armed conflict shall use only those measures which are necessary to achieve a military victory. Violation of this rule during armed conflicts of both international and non-international character, is considered a war crime under the Rome Statute of the International Criminal Court (Art. 8(2)(в)(хііі); 8(2)(е)(хіі)). 7 The principle of commensurability (proportionality) in the IHL means that the concrete and direct military advantage obtained as a result of military operations shall prevail the accidental damage caused during it to civilians and civilian objects. In other words, any unnecessary, that is not caused by the need to achieve legitimate military objectives, loss of life and destruction of property shall be avoided. (Henckaerts J.-M., Doswald-Beck L. Customary international humanitarian law. Rules [Electronic recourse] // The International Committee of the Red Cross. — Mode of access: https://www.icrc.org/rus/assets/files/other/customary.pdf).

UHHRU 2017 9 On the edge of survival: extermination of the environment in the course of the armed conflict in the East of Ukraine

Rule 42 points out, that particular care must be taken if works and installations containing dangerous forces, namely dams, dykes and nuclear electrical generating stations, and other installations located at or in their vicinity are attacked, in order to avoid the release of dangerous forces and consequent severe losses among the civilian population. Today the agenda of the UN International Law Commission, among other things, contains the issue of codification of the rules of the customary IHL relating to theenvironmental protection during international armed conflict and armed conflict of non- international character. In the Report of the Drafting Committee of the Commission some principles have been previously formulated that talk about the duty to apply for the environment protection during armed conflicts the rules of the customary IHL, including the principles on distinction, proportionality, military necessity and precautions in attacks. Therewith, environmental considerations shall be taken into account when assessing what is necessary and propor- tionally for achieving legitimate military purposes8. An important is the conclusion about dissemination of the scope of the draft of the future Guidelines for armed conflict of non-international character. After the Gulf War the ICRC and the UN General Assembly declared the application of customary principle of humanity or Martens Warning for protecting the environment during armed conflict. More- over, the ICRC supports the application to environmental protection during armed conflict, of one of the key principles of the international environmental law — the principle of precaution. The Additional Protocol I to the Geneva Conventions of 12 August 1949 regarding protection of victims of international armed conflict, of 8 June 1977 (AP I) contains provisions directly aimed at environmental protection during international armed conflicts — Articles 35 and 55. According to par. 3 of Art. 35 it is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment. Article 55 has the name “Protection of natural environment” and points out that “1. Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population. 2. Attacks against the natural environment by way of reprisals are prohibited”9. Both articles prohibit the use of methods or means of warfare which are intended or expected to cause large, long-term and severe damage to the natural environment. These articles differ in that, firstly, Art. 35 prohibits the intentional use of methods and means of warfare which may cause damage to the environment (this article was placed to Part III of the PA, which regulates the methods and means of warfare and contains clear prohibitions of certain methods and means), while Art. 55 imposes on the States the duty of showing concern with the aim of protection of the environment during of armed conflict (this article is placed to Part IV, which regulates the status of the civilian population and civilian objects, and is, above all, a man- ifestation of “the care obligation”), secondly, Art. 35 is aimed at protecting an individual object — the environment — in view of its own importance and value, and Art. 55 is focused on protection of the environment to the extent necessary for the safety and protection of victims of war — civilians. For bringing to liability for violation of the AP I and protection of the environment fulfilling of all three conditions simultaneously is necessary: damage should be large, long-term and severe. But the

8 Second report on the protection of the environment in relation to armed conflicts, Submitted by Marie G. Jacobsson, Special Rapporteur, International Law Commission, Sixty-seventh session, Geneva, 4 May — 5 June and 6 July — 7 August 2015, A/CN.4/685. — Р. 49, 52, 53. 9 The additional Protocol to the Geneva Conventions of 12 August 1949 regarding protection of victims of international armed conflict (Protocol I), of 8 June 1977 [Electronic recourse]. — Mode of access: http://zakon0.rada.gov.ua/laws/show/995_199/print1478683605283733.

10 UHHRU 2017 International legal protection of the environment at the period of armed conflict meaning of concepts the “large, long-term and severe damage” is not defined in the AP I. From the preparatory documents of the PA, that are used for the purposes of its interpretation, and doctrinal opin- ions it is clear that the damage is considered large for the purposes of the AP I if it covers the territory of 20 thousand square km; long-term — if it continues for several decades10; severe — if damage to health or survival of the population is also inflicted11. Another controversy is the idea that the damage caused on the battlefields of war with the use of conventional weapons do not fall within Par 3 of Art. 35 or Art. 55 of the AP I and the impossibility of their further application is conditioned by dangers associated with explosive remnants of war12. Eric David notes that the narrow interpretation of Par. 3 of Art. 35 and Art. 55 that prevailed in 1977, perhaps today should be seen as outdated, especially given the fact that the term “large, long- term and severe damage” in the form in which it was interpreted in the preparatory work, is not legally undefined in the Protocol itself, at the result of which the character of later remains relative, prone to changes and evolution, depending on the assessment by a qualifying body13. If the consequences of the attack did not fall within the definition of “large, long-term and severe damage” it does not mean that it is legitimate because it can violate other principles of IHL (proportionality, distinction, humanity, military necessity)14. Other rules of the AP I are aimed at protecting the environment only indirectly, mainly through the protection of civilians and civilian property from the consequences of war. According to Par. 1 of Art. 51, the civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. To give effect to this protection, the following rules, which are additional to other applicable rules of international law, shall be observed in all circumstances. Par. 4 of Art. 51 prohibits indiscriminate attacks. They, in particular, include: (a) Those which are not directed at a specific military objective; (b) Those which employ a method or means of combat which cannot be directed at aspecific military objective; or (c) Those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction. Article 52 provides general protection to civilian objects that can consider individual components or objects of the environment. Thus, according to Par. 1 of Art. 52 “Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives…” . Attacks shall be limited strictly to military objectivesb (Par. 2 Art. 52). Military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage (Par. 2 Art. 52). Article 54 prohibits attacks on objects indispensable to the survival of the civilian population (such as agricultural areas, crops, livestock, drinking water installations and supplies and irrigation works)

10 Eric David points out that the duration of “long-term” damage as it is understood in the Protocol, is measured in years or even decades. E. David. The principles of the law of armed conflict: The course of lectures given at the Law Faculty of the Open University of Brussels. — М.: International Committee of the Red Cross, 2011. — P. 340. 11 Wyatt J. Law-making at the intersection of international environmental, humanitarian and criminal law: the іssue of damage to the environment in international armed conflict / Humanitarian debate: Law, policy, action. Environment// International Review of the Red Cross. — September 2010. — Vol. 92, No. 879. — P. 623–624. 12 E. David. The principles of the law of armed conflict: The course of lectures given at the Law Faculty of the Open University of Brussels. — М.: International Committee of the Red Cross, 2011. — P. 340. 13 E. David. The principles of the law of armed conflict: The course of lectures given at the Law Faculty of the Open University of Brussels. — М.: International Committee of the Red Cross, 2011. — P. 342. 14 Cohan J. A. Modes of warfare and evolving standards of environmental protection under the International Law of War // Florida Journal of International Law. — 2002-2003. — Vol. 15. — P. 503.

UHHRU 2017 11 On the edge of survival: extermination of the environment in the course of the armed conflict in the East of Ukraine

(Par. 2 Art. 54). For some situations Art. 54 does not prohibit a policy of “scorched earth” under the condition that a Party to the conflict conducts it on its own territory to the extent in which it controls it. How- ever, the policy of “scorched earth” shall not, although it is not explicitly formulated, cause “large, long-term and severe damage to the natural environment”, which should be considered as part of the common heritage of mankind15. Article 56 provides special protection of works or installations containing dangerous forces (dams, dykes and nuclear electrical generating stations) even where these objects are military objectives if such attack may causethe release of dangerous forces and consequent severe losses among the civilian population. The International Committee of the Red Cross expressed its position, according to which this article also applies to oil refineries and chemical plants16. Article 57 obliges the parties to international armed conflict in the conduct of military operations to take constant care spare the civilian objects, and Article 58 — take preventive measures as regard to the results of the attacks. Articles 59 and 60 proved special protection to non-defended and demilitarized zones. At the time the International Conservation Union called for the adoption of the Convention on the Prohibition of hostilities in protected areas, the draft of which was developed after the Gulf War in 1990—1991. If it had been approved the UN Security Council would have had the appropriate authority to determine such protected areas17. In addition, during the drafting of the AP I the proposal was put forward to include into it the provision on special protection of areas of special ecological importance, however it has never been implemented18. Causing the environmental damage is among the serious violations in the Geneva Conventions and the AP I aunder the meaning of Art. 85. However, according to Art. 91, a party to the conflict that violates the Geneva Conventions or the AP I should recover damages, if there are the reasons. Geneva Convention for the Protection of CivilianPpersons In the Time of War of 12 August 1949 contains provisions on the prohibition for the Occupying Power destroy real or personal property (Art. 53) that can be used to bring this state to liability for destruction of natural objects. According to Art. 55 of the Convention respecting the Laws and Customs of War on land (IV Hague Convention) of 1907, the occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct. Thus, modern IHL regulates the obligations of the Occupying party, including the preservation of natural and cultural objects. The second treaty that is applied not only in the event of armed conflict within the meaning of the Geneva Conventions, but in the absence of such a conflict — Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (Convention ENMOD). State Parties to this Convention undertake not to engage in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party (Par. 1 Art. 1). In the meaning of Art. 1, the use of such impact on the environment is prohibited at the simultaneous presence of three conditions, namely, if the use is hostile; leads to de-

15 E. David. The principles of the law of armed conflict: The course of lectures given at the Law Faculty of the Open University of Brussels. — М.: International Committee of the Red Cross, 2011. — P. 339. 16 Second report on the protection of the environment in relation to armed conflicts ... P. 54. 17 Protecting the environment during armed conflict. An inventory and analysis of international law / Eds. David Jensen and Silja Halle. — Nairobi: United Nations Environment Programme, 2009. — P. 20 18 Second report on the protection of the environment in relation to armed conflicts ... P. 69.

12 UHHRU 2017 International legal protection of the environment at the period of armed conflict struction, damage or injury to any other State Party; has large, long-term or serious effects. The latter requirement, in turn, is not cumulative, unlike the AP I that is for bringing to liability presence of only one of these effects is enough (widespread, long-lasting or severe). It should be noted that the difference between the AP I and Convention ENMOD in the formulation of the relevant provisions was not random, but delib- erately laid during development of both documents19. Also, if Article 35 (3) of the Protocol aims to protect the environment per se, Convention ENMOD prohibits using the environment as a weapon20. In general, the methods of environmental protection under the Convention are “stronger” than methods of protection by the AP I. In the explanatory documents to the Convention the conditions relating to the widespread, long-lasting or severe effects mentioned in Art. 1 are clarified. Thus the consequences are considered: 1) widespread, when they cover the area of several hundred square kilometers; 2) long- lasting, when they last for several months or one season (we recall that in the preparatory documents to the AP I period of several decades is specified); 3) severe, when they result in serious or significant violations or cause serious or significant harm to human health, natural and economic and other resources21. Herewith the term “environmental modification techniques”, used in the Convention ENMOD, refers to any technique for changing — through the deliberate manipulation of natural processes — the dynamics, composition or structure of the Earth, including its biota, lithosphere, hydrosphere and atmosphere, or of outer space. (Art. 2 of the Convention)22. The list of processes that may result from application of environmental impact, is provided in the explanatory documents to the Convention. These are — earthquakes, tsunamis, violation of ecological balance in a given region, changing atmospheric conditions (rain, precipitation, cyclones and hurricanes), change of climate, ocean currents, the ozone layer and the ionosphere. Thus, the Convention has a very limited subject of regulation. In comparison — the AP I prohibits resortion to any means, including the management of natural processes which are capable of causing serious damage to the environment23, that is a much broader subject of regulation. Mechanism of observance of the Convention includes such provisions. Any State Party which finds that any other State Party is acting in breach of obligations arising from the Convention may lodge a complaint to the UN Security Council. On the basis of this complaint, the Security Council may initiate investigations (Par. 3, 4 and 5). In addition, it is envisaged establishment of the Advisory Committee of Experts with the function of the actual investigation of the circumstances of each case. It should be noted, however, that in practice, these provisions have never been applied. Provisions of the Convention shall also apply in cases where armed conflict as such is absent. Thus, both an attacking party that has used the forbidden technology, and the party that defended and also applied this technology will be considered as guilty. The Convention does not prohibit the use of environmental impact for peaceful purposes (eg to combat climate change or the destruction of the ozone layer). After the Gulf War, under the request of Jordan the UN General Assembly included into the agenda for consideration at the 56th session the issue, entitled “Environmental protection during armed conflict”. Jordan, as one of the most affected countries, argued that the Convention of 1977 was inappropriate

19 Bothe M., Bruch C., Diamond J. and Jensen D. International law protecting the environment during armed conflict: gaps and opportunites / Humanitarian debate: Law, policy, action. Environment // International Review of the Red Cross. — September 2010. — Vol. 92, No. 879. — P. 572. 20 Protecting the environment during armed conflict. An inventory and analysis of international law ... P. 12. 21 Оfficial commentary on the 1977 Additional Protocol I, Article 35 / International Committee of the Red Cross. — Mode of access: http://www.icrc.org/ihl.nsf/COM/470-750044?OpenDocument. 22 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques [Electronic resource]. — Mode of access : http://zakon2.rada.gov.ua/laws/show/995_258. 23 E. David. The principles of the law of armed conflict: The course of lectures given at the Law Faculty of the Open University of Brussels. — М.: International Committee of the Red Cross, 2011. — P. 340.

UHHRU 2017 13 On the edge of survival: extermination of the environment in the course of the armed conflict in the East of Ukraine to solve such problems and that the UN General Assembly should consider the adoption of a new Con- vention. However, the Sixth Committee decided that developing a new document makes no sense, and that the efforts of the states should be allocated to the implementation of the existing agreements. As a result, the UN General Assembly limited to the adoption in 1992 of resolution 47/37, which reiterated the Committee's findings on this issue24. Regarding the Protocol Additional to the Geneva Conventions of 12 August 1949 concerning the protection of victims of armed conflicts not of non-international character, of 8 June 1977 (AP II), it does not contain special rules aimed directly at the protection of the environment. Article 14 is devoted to the protection of objects indispensable to the survival of the civilian population (including agricultural areas, crops, livestock, drinking water installations and its supplies, irrigation works). Article 15 provides special protection of works and installations containing dangerous forces (dams, dykes and nuclear electrical generating stations). Thus, these rules may provide indirect protection of objects of the environment during armed conflict of non-international character. Protocol III on Prohibitions or Restrictions on the Use of incendiary weapons to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects of 1980 prohibits to make forests or other kinds of plant cover the object of attack by incendiary weapons except when such natural elements are used to cover, conceal or camouflage combatants or other military objectives, or are themselves military objectives. These rulesalso extent to armed conflict on non-international character according to amendments to Article 1 of the Convention introduced in 2001. Among other agreements — the sources of IHL that focus on environmental protection, particularly during or after armed conflict, we should distinguish following: The Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (1972) — Article 2; Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (1993) — Articles 4, 5 and 7; The Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (1997) — Articles 5(4)(с) and 7(1)(f); The Convention on Cluster Munitions (2008) — Articles 3(2), 4(2)(с), 4(6)(h), 7(1)(е) and (f). In the study, specially prepared by the United Nations Environment Programme (UNEP) on environmental protection during armed conflict, major deficiencies and gaps in the application of the relevant rules of IHL are mentioned. Thus, it is noted that: - Articles 35 and 55 of Additional Protocol I to the 1949 Geneva Conventions do not effectively protect the environment during armed conflict due to the stringent and imprecise threshold required to demonstrate damage; - Provisions in humanitarian law that regulate the means and methods of warfare or protect civilian property and objects provide indirect protection of the environment, moreover these protections have rarely been effectively implemented; - The majority of international legal provisions protecting the environment during armed conflict were designed for international armed conflicts and do not necessarily apply to internal conflicts; - There is a lack of case law on protecting the environment during armed conflict because of the limited number of cases brought before the courts; - There is no permanent international mechanism to monitor legal infringements and address compensation claims for environmental damage sustained during international armed conflicts;

24 Morris V. Protection of the environment in wartime: the United Nations General Assembly considers the need for a new convention // The International Lawyer. — 1993. — Vol. 27. — P. 775–782.

14 UHHRU 2017 International legal protection of the environment at the period of armed conflict

- The general humanitarian principles of distinction, necessity, and proportionality may not be sufficient to limit damage to the environment25. In 1994 the ICRC drafted “Guidelines for Military Manuals and Instructions on the Protection of the Environment in Times of Armed Conflict”26. The UN General Assembly called upon the States to disseminate these Guidelines and include them in the instructions for the armed forces. The originality of these guidelines is that they included not only the existing rules specifically designed to protect the environment in the event of armed conflict, but also the more general provisions (Martens clause, prohibition of unnecessary destruction, an obligation to spread knowledge, etc.) that can also be applied to the environment27. The emergence of international liability under international criminal law is possible both for the state in general and for public officials. The International Criminal Court has jurisdiction over war crimes, among which Article 8.2.b.iv of the Rome Statute of 1998 provides “intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall militaryadvantage anticipated”. In addition to the need to respect the cumulative standard provides corpus delicti requires proving, first, intent to commit an attack, second, knowledge that such attack will cause considerable environmental damage, third, that damage is clearly not commensurate with the concrete and direct military advantage anticipated28. The standard of cumulativity included a requirement on the implementation of the test for proportionality and military necessity. Article 8 qualifies “crimes against the environment” as war crimes in section (b) instead of section (a), which, in turn, defines serious violations of the Geneva Conventions. Moreover, the provisions of this article concern only international armed conflicts. However, crimes against the environment can make a material element of other crimes such as genocide, crimes against humanity and other war crimes. In the judgment Prosecutor against Omar al-Bashir of 2009 the International Criminal Court did not deny the link between environmental degradation and genocide29. Existing standards major treaties on issues of liability for environmental damage caused by armed conflict (AP I, Convention ENMOD and the Rome Statute), were developed by the logic of international humanitarian law and not by the international environmental law. It occurs, firstly, in the subject of their regulation “hostile use of means of influence” in the Convention ENMOD, “methods and means of warfare” in the AP and “attack” in the Rome Statut30. And secondly, in prevailing doctrinal belief that norms of IHL are norms of lex specialis in relation to the rules of international environmental law. However, the recommendation norms of international environmental law also contain provisions prohibiting causing damage to the environment. World Charter for Nature, adopted by the UN General Assembly on 28 October 1982 states: “5. Nature shall be secured against degradation caused by warfare orother hostile activities. [...] 20. Military activities damaging to nature shall be avoided”.

25 Protecting the environment during armed con ict. An inventory and analysis of international / Eds. David Jensen and Silja Halle. — Nairobi: United Nations Environment Programme, 2009. — 80 р. 26 Guidelines for Military Manuals and Instructions on the Protection of the Environment in Times of Armed Conflict [Electronic resource]. — Mode of access : http://www.un.org/ru/events/environmentconflictday/guidelines.pdf. 27 E. David. The principles of the law of armed conflict: The course of lectures given at the Law Faculty of the Open University of Brussels. — М.: International Committee of the Red Cross, 2011. — P. 343. 28 Wyatt J. Law-making at the intersection of international environmental, humanitarian and criminal law: the іssue of damage to the environment in international armed conflict ... P. 626, 633. 29 Prosecutor v. Omar Al-Bashir, ICC-02/05-01/09-3, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al-Bashir, 4 March 2009. — Mode of access: http://www.icc-cpi.int/iccdocs/doc/doc639096.pdf. 30 Wyatt J. Law-making at the intersection of international environmental, humanitarian and criminal law: the іssue of damage to the environment in international armed conflict... P. 620.

UHHRU 2017 15 On the edge of survival: extermination of the environment in the course of the armed conflict in the East of Ukraine

Bring to liability for environmental damage inflicted during the war, is more problematic than bringing to liability for environmental damage caused in peacetime. The emergence of of international liability under international criminal law is possible both for the state in general and for public officials. However, at present, no international tribunal or criminal court has made a decision to prosecute for purely “environmental” crimes committed during armed conflict. Unique in the history of international relations case regarding criminal liability for crimes in the area of the environment protection — the case of an Austrian General L. Rendulik, was considered by the Nuremberg Military Tribunal after World War II. The general himself was acquitted by the Tribunal for using the tactics of “scorched earth” in Norway, referring to the principle of military necessity31. During the military operation in Kosovo in 1999, NATO carried out bomb attacks on chemical plants and refinery facilities, so that the water of the Danube, flora and fauna, soil and air in the area were polluted with oil and toxic chemicals. Contamination had cross-border nature, since it affected the environment of Greece, Albania, and Macedonia. In April 1999 the Federal Republic of Yugoslavia filed suits to the International Court of Justiceof Justice against 10 countries that had been involved in operations led by NATO, in which it argued that these states violated by their actions of bombing of chemical plants and refinery facilities the obligation provided by IHL of non-causing significant environmental damage, as well as by using weapons containing depleted uranium, these states had violated obligations of non-use of prohibited weapons and non-causing long-term damage to human health and environmental damage. The International Court of Justice has not considered these suits for several reasons. The UN created a special expert group of representatives from UNEP, the United Nations Population Center and the Mem- ber States and international non-governmental organizations, which prepared the final report on the assessment of the effects of war on the environment in the former Yugoslavia. The Group concluded that although the consequences were extremely negative, but the conflict in Kosovo had not caused environmental disaster in the Balkan region32. The report noted that the environmental consequences of military actions were provoked by “chronic pollution sources” and not bombing33. Attempts to bring NATO to liability for violations of humanitarian law, which set environmental protection during armed conflict, were also unsuccessful before the International Criminal Tribunal for the Former Yugoslavia. The Committee designed specifically for verifying the legitimacy of the bombing of Yugoslavia, noted: it was a rather difficult task to prove that the cumulative standard of the AP I had been34. However an important provision is included in the final report of the Committee that Article 55 of the AP I may reflect customary international law35, that is, they also apply to states which are not parties to the AP I. At the same time, the Committee concluded that the actions of NATO did not achieve the Additional Protocol I thresh- old36. After analyzing the application of customary principles of military necessity and proportionality, the Committee concluded that there was no need to initiate an investigation on environmental damage caused

31 Orellana M.A. Criminal punishment for environmental damage: Individual and state liability at a crossroad // George- town International Environmental Law Review. — Summer 2005. — Mode of access: http://findarticles.com/p/articles/mi_qa3970/is_200507/ai_n14684851. 32 Bostian I.L. The environmental consequences of the Kosovo conflict and the NATO bombing of Serbia // Colorado Journal of International Environmental Law and Policy. — 1999. — Vol. 11. — P. 230–240. 33 Kopylov M.N. Nature protection aspects of the ICRC // International law — International law. — М., 2006. — no. 2. — P. 184–203. 34 Kiss A., Shelton D. International environmental law. — Nairobi: UNEP, 2004. — Р. 417. 35 Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia, 13 June 2000. — Mode of access: http://www.icty.org/en/press/final-report-prosecutor- committee-established-review-nato-bombing-campaign-against-federal. — Para. 15. 36 Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia ... Para. 17.

16 UHHRU 2017 International legal protection of the environment at the period of armed conflict as a result of the armed conflict. This same conclusion, the Committee made regarding causing damage to the environment as a result of NATO’s u shelling with missiles containing depleted uranium. In the judgment on the case concerning armed activities on the territory of Congo (Democratic Re- public of Congo against Uganda) of 2005 the International Court of Justice held that Uganda had violated its obligations under international law regarding acts of looting, robbery and exploitation of natural resources of Congo committed by members of its armed forces, and had violated its obligations as the occupying power in Ituri district since it had failed to prevent such acts of looting and exploitation of the natural resources of Congo37. The only case of implementation of state liability for environmental damage inflicted during the war is the case of Iraq, which under the UN Security Council resolution no. 687 (1991) was found responsible for damages resulting from invasion of Kuwait. According to par. 16 of the Resolution, Iraq “is liable under international law for any direct loss, damage, including environmental damage and the depletion of natural resources”38. This confirms, on the one hand, the nature of customary rules of the AP I, which are designed to protect the environment, and on the other — applicability in wartime of other documents relating to the protection of the environment, a party to which was Iraq. Large, long-term and serious nature of the environmental damage suffered by Kuwait was implicitly recognized by the UN General Assembly, which in the preamble to its Resolution 46/216 adopted on 20 December 1991 (135-0-1) “International cooperation to mitigate the environmental consequences on Kuwait and other countries in the region resulting from the situation between Iraq and Kuwait” says about “disastrous situation” in “Kuwait and neighboring areas”, the “threat to … the well-being of the population of the region” and “consequences” of the disastrous situation “for livestock, agriculture and fisheries as well as for wildlife”39. Indicative in respect of that subject is the practice of the UN Compensation Commission established under the UN Security Council’s Resolution no. 687 (1991 Commission — a typical international quasi- judicial body which has administrative functions. The issue of liability of Iraq was resolved in this Resolu- tion; therefore the Commission’s work was limited to verifying claims and evaluating the amounts of compensation for losses and damage for the offended party. The Commission considered the complaints of six categories, including category F4 — claims about environmental damage, that were divided into two subcategories: 1) complains regarding environmental damage and depletion of natural resources in the Persian Gulf, including expenses directly relating to fighting oil fires and stemming the flow of oil into the sea; 2) complaints about compensation of damage suffered by foreign countries outside the Persian Gulf while providing assistance to the states that suffered direct environmental damage as a result of the invasion. In its decision no. 7 the Governing Council of the Commission explained that the term “environmental damage” and “depletion of natural resources” concern costs and losses related to the prevention of environmental damage and recovery measures for environmental clean-up, monitoring and evaluation of environmental damage monitoring of public health and depletion of natural resources40. The Commission has provided the Council with five reports

37 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda). Judgment of the Interna- tional Court of Justice of 19 December 2005 // I. C. J. Reports. — 2005. — P. 168. 38 Resolution 687 (1991) adopted by the Security Council at its 2981st meeting, on 3 April 1991. — Mode of access: http://www.un.org/Depts/unmovic/documents/687.pdf. 39 E. David. The principles of the law of armed conflict: The course of lectures given at the Law Faculty of the Open University of Brussels. — М.: International Committee of the Red Cross, 2011. — P. 344. 40 Decision taken by the Governing Council of the United Nations Compensation Commission during its third session, at the 18th meeting, held on 28 November 1991, as revised at the 24th meeting held on 16 March 1992. Criteria for additional Categories of Claims. UN Compensation Commission Governing Council, Fifth Session, Geneva, 16–20 March 1992. S/AC.26/1991/7/Rev.1, 17 March 1992.

UHHRU 2017 17 On the edge of survival: extermination of the environment in the course of the armed conflict in the East of Ukraine on all claims of category F4, where it identified some principles which is followed when deciding the amount of compensation. For example, it was determined that the term “environmental damage” as defined in the UN Security Council’s resolution no. 687 is not limited to the activities specified in the decision of the Governing Council of the Commission no. 7; Iraq is not exempted from liability for damages and losses incurred as a result of the invasion, on the sole ground that other factors had contributed to this damage and loss41; damage is determined in each case and does not depend on such criteria as “significant” or “substantial”; the amount of compensation depends on how effectively and justifiable affected persons took measures to prevent and reduce environmental damageрозмір42; damage to the environment is subject to compensation if it was the direct result of Iraq's invasion and occupation of Kuwait, regardless of whether it was caused to its natural resources with commercial value or not (ie pure environmental damage) and regardless of whether it was temporary or permanent43. For today, the Com- mission has completed review of all claims (109 claims were satisfied out of 168) of category F4: from 84 billion dollars claimed in the aggregate, the Commission awarded only 5 bln dollars to be paid as compensation from a specially created Fund. The UN Environment Programme has carried out more than 20 post-conflict assessments since 1999, where the effects of war on the environment of different countries were determined. In addition, international researches of environmental damage from armed conflicts were once conducted by the Regional Environmental Center for Central and Eastern Europe, the World Bank44. Reports of these international organizations may prove to be quite useful for assessing the environmental impacts of other armed conflict which may occur in future. Having analyzed international treaty and judicial practice we can make certain conclusions. The issue of protection of the environment during armed conflict is virtually not regulated in international environment law. Modern international humanitarian and criminal law do not provide adequate protection of the environment during armed conflict by establishing a high threshold level, the uncertainty of the application criteria for relevant regulations; protection of the environment as civilian objects is also not effective because of the possibility of turning it into a military target, and the use of rules on collateral damage caused to the environment as a result of military action creates problems with application of the principle of proportionality. In most cases the environmental damage was caused during the armed conflicts by states that were not bound by the rules of the Protocol I or Convention ENMOD. However, the above mentioned does not mean that liability will not occure in any case for damage caused to the environment as a result of armed conflict. There are various ways of bringing a state-infringer to international liability (for damage caused during the war to the natural environment, cultural sites, as well as the damage caused to natural resources by an Occupying power), and bringing of repretrators — natural persons — to criminal responsibility in accordance with international law. Moreover, the practice of States may indicate acquisition the status of customary norms by the specified rules.

41 Report and recommendations made by the Panel of Commissioners concerning the second installment of “F4” claims. UN Compensation Commission Governing Council. S/AC.26/2002/26, 3 October 2002. — Р. 9–10. 42 Report and recommendations made by the Panel of Commissioners concerning the third installment of “F4” claims. UN Compensation Commission Governing Council. S/AC.26/2003/31, 18 December 2003. — Р. 12. 43 Report and recommendations made by the Panel of Commissioners concerning the fifth installment of “F4” claims. UN Compensation Commission Governing Council. S/AC.26/2005/10, 30 June 2005. — Р. 19. 44 Military action in Eastern Ukraine — Civilization challenges to humanity — Lviv: EPL, 2015. — P. 112.

18 UHHRU 2017 THE ARMED CONFLICT AND THE STATE OF ENVIRONMENTAL 2 PROTECTION IN THE EAST OF UKRAINE

The aggression of Russia against Ukraine, which resulted in occupation and annexation of Crimea and armed conflict in Eastern Ukraine, has led to significant environmental damage. As a result of the armed conflict in Donetsk and Luhansk regions of Ukraine considerable pollution with chemical toxic substances, heavy metals and fragments metal objects occurred due to shellings and use of explosives; formation of numerous craters that vandalized the land and destroyed the natural protected areas; flooding of mines, construction of defensive structures, pits, damage to sewers and water supply networks. Risks, associated with damage to communications, enterprises and other objects, that are of high environmental hazard, have particular importance, because in the absence of control and possibilities of elimination of their negative effects the potentially increase the scale of the negative impact45. At the result of destruction of sewage treatment facilities the ecological state of water objects has deteriorated. Mine danger has led to restriction or loss of opportunities on large areas. A number of protected areas located in a combat zone, have suffered significant damage. Because of attacks by terrorist groups of so-called “LPR” and “DPR” and regular troops of Russia, fires occurred on dangerous chemical plants, leading to chemical contamination and environmental pollution. Forest fires have acquired a large-scale character at the result of hostilities affecting thousands of hectares of forest, including objects of natural reserve fund (eg regional landscape park “Donetsk ridge”). The Russian aggression has led to contamination of the environment with harmful dangerous substances, destruction of fertile soil, vegetation, the wild fauna species, including those placed into the Red Book of Ukraine. Hostilities took place, in particular, within Lugansk and Ukrainian steppe nature reserves, national parks “Meotyza” and “Svyati Hory”, the regional landscape park “Donetskiy kryazh”. The fires damaged areas of nature reserves “Naholchanskyy”, “Volnukhynskyy”, “Bilorichenska”, “Bilo- horivskyy” “Pischanyy” in Luhansk region. The steppe reserves were affected the most46. However, despite significant emergency, information on such facts unfortunately has not often appeared in the news from the ATO zone. Partly this was caused by the fact that data on attacks, deaths and injuries of people, torture of prisoners attracted more attention, and partly — because of the conservation of the environment is mostly taken care of by only a narrow circle of specialists. Thus, ecologists of an international charity organization “Ecology — Law — Human” in 2015 conducted a study of the impact of hostilities on the environment47, and the All-Ukrainian Ecological League acted as co-organ- isator of the conference, held in September 2015, titled “Prospects of restoring the East of Ukraine on the principles of sustainable development”48. In open sources (notifications and public statements of state bodies, public organizations, publications in mass media, the Internet, social networks, all kinds of statements, reports, scientific articles, etc.) the following types of damage caused to the environment by armed conflict have been discussed.

45 Military action in Eastern Ukraine — Civilization challenges to humanity — Lviv: EPL, 2015. — P. 7. 46 Baluk H. I. Shompol O. A. National and international legal regulation of environmental issues and environmental security in armed conflicts // Administrative Law and Procedure. — 2015. — no. 2 (12). — P. 142-158. — Mode of access: http://applaw.knu.ua/index.php/holovna/item/462-natsionalni-ta-mizhnarodno-pravovi-problemy-reguliuvannya- ohorony-dovkillya. 47 Environment and war [Electronic resource] — Mode of access : http://epl.org.ua/ecology/dovkillia-ta-viina pravovi- problemy-reguliuvannya-ohorony-dovkillya. 48 Prospects for restoring the East of Ukraine on the principles of sustainable development // Ecological Bulletin, 2015. — no. 5. — P. 2 — 3 .

UHHRU 2017 19 On the edge of survival: extermination of the environment in the course of the armed conflict in the East of Ukraine

2.1. Usiage of natural objects as military objects The branch “Cretaceous Flora” was the first site of Ukrainian steppe nature reserve NAS of Ukraine that suffered from hostilities in the war in Donbass. In mid-March 2014 on the road Krasniy Liman — Seversk — Artemivsk, a mile from the border of the steppe reserve, a checkpoint of “DNR” was set, the protected area itself was occupied by armed men. The security service of the branch in terms of the threat to life and health of employees during the hostilities could not fully perform its functions and support the reserve mode. On the territory of the branch trenches were dug, firing points were equipped for small arms and mortars, the area was mined. In June-July of that year on the territory of the branch and around it active hostilities took place. Since July 2014 the reserve has been returned under the control of Ukraine and Ukrainian military left the territory completely49. On 08.05.2015 the site of Mariupol “0629” gave material of “KP” in Russia, which tells about marine commandos “Typhoon”, that is part of the Azov flotilla of “DNR”. The photo, illustrating this material, shows that the training of this division of insurgents isheld on the territory of Curve spit. This is a part of the reserve “Meotida” where birds nest in large colonies50.

Photo from: https://www.0629.com.ua/news/820145 On 19.04.2015 an online newspaper UkrMedia reported that on the territory of natural reserve object of a general zoological reserve “Illyriyskyy” of Lutuhyn district, Luhansk region a field camp of the unlawful military units controlled by Russia with lots of equipment was revealed. Most likely it's a training camp, where regular officers and soldiers of Russia are hiding from the prying eyes of the local population and, at the same time, conduct training of future combatants. The photo shows that the equipment is located inside the fenced area, i.e it is permanent location of Russian military equipment51.

49 Yarovoy S. S., Limanskiy S. V., Podpryatov A. Functioning of the Ukrainian Steppe Nature Reserve in conditions of hostilities in Donetsk region [Electronic resource]. — Mode of access: http://savesteppe.org/ru/archives/12375. 50 In the Azov marine commandos of insurgents’ division “Typhoon” train on the shores of “Meotida” [Electronic resource]. — Mode of access : https://www.0629.com.ua/news/820145. 51 A field camp of the Russian hybrid army is set near Luhansk [Electronic resourse]. — Mode of access: https://ukr.media/ukrain/233945/.

20 UHHRU 2017 The armed conflict and the state of the environment protection in the East of Ukraine

Photo from: https://www.0629.com.ua/news/820145

2.2. Damage to water supplies and wastewater facilities The Company “Water of Donbass” has reported that on the night of 11 June 2015 as a result of strong shelling of Horlivka the single working pipeline of the channel station no. 2, resulting complet blackout of the station — the transmission line and switchgear were damaged. Horlivka and Dzerzhinsk were left without water — the statement said. Because of the accident it is a danger of stopping of Donetsk, Velikoanadolska and Chervonoarmiyska filtering stations, from which the water supply of cities of Avdeyevka, Donetsk and partly Yasinuvata, Volnovakha, Vugledar, Dokuchaevsk, Dobropilla, Dim- itrov, Selidovo, Ukrainsk is provided52. On 05.06.2016 “Donbass SOS” informed about re- newal of repair works on the pressure pipe of the channel Seversky Donets — Donbass in the area of Mayorsk. A permit for work in this area repairers received from the Joint Center for control and coordination of ceasefire on 1 June. They were already held at this site of the channel in the summer of 2015, but due to the limited term of permit complet- ing of repairing works failed. “By now the permit of the Joint Center for control and coordination of ceasefire has not been received for conducting of works on the restoration of water supply of localities: Olenivka, Berezove, Stepove, Solodke, Taramchuk” — said volunteers53. Photo from: http://dn.depo.ua/

52 Donetsk region remained without water, the shelling damaged the channel Seversky Donets-Donbass [Electronic resourse] — Mode of access: http://dn.depo.ua/ukr/dn/donetska-oblast-zalishilasya-bez-vodi-obstrilom-poshkodzheno- 11062015132300. 53 In five localities in the ATO zone in Donetsk region there is no water because of the absence of permits for repair [Electronic resourse] — Mode of access: http://vchasnoua.com/donbass/38625-v-pyati-naselennykh-punktakh-zony-ato-na- donetchine-net-vody-iz-za-otsutstviya-razresheniya-na-remont

UHHRU 2017 21 On the edge of survival: extermination of the environment in the course of the armed conflict in the East of Ukraine

On 11.08.2016 the press service of CE “Water of Donbass” said that after shelling of Dokuchayevsk the management of water supply and sewerage facilities (VUVKH) could not resume work that could result in outbreaks of infectious diseases and contamination of soil. The area of the sewage treatment facilities of enterprises is located close to the demarcation line and lately was twice subjected to shelling — on 9 and 11 August. As a result of recent shelling the ductwork was damaged. “In Dokuchayevsk sewerage treatment facilities there are no reliable bomb shelters, the staff, and this are mostly women, are constantly in stress. Representatives of the Joint Center for control and coordination of ceasefire and the OSCE are informed about what have happened“, — said the report54. In the ATO zone there are several water supply stations with a reserve of liquid chlorine. In case of hitting these buildings with shells and leakage of chemicals, life and health of people in a radius of several kilometers from the infected zone will be threatened. Dangerous for the civilian population is also cessation of clearing of potable water. It threatens with epidemics similar to those that were in me- dieval Europe55.

2.3. Flooding of mines On 19.07.2014 the Ukrainian national news reported that the mine “Dovzhanska-Capitalna” and “Chervonyy Partisan” (DTEK “Sverdlovskantratsit”) had been left without a permanent power supply since 14 July 2014. “The situation threatens with flooding of mines” informed the press service of DTEK. “From 14 to 18 July because of the hostilities, power supply of mines “Dovzhanska-Capitalna” and “Chervonyy Partizan”, that are the part of DTEK “Svedlovskantratsit”, was thrice switched off”56. Less than a month after this on 15.08.2014 the Head of the Independent Trade Union of Miners of Ukraine (hereinafter — the ITUMU) Mykhailo Volynets said at the briefing that flooding by insurgents of 7 acting and 4 restructured mines in Donbas may lead to the poisoning of drinking water and the emergence of radioactively contaminated water, pollution of the Azov Sea and Seversky Donets that would lead to environmental disaster of Chernobyl level. “On the one hand, if there are peace and economic expediency, it will be possible to pump out water and restore mines. But if the fighting, the level of groundwater can join the soil water and poison drinking water, and the environment all“, — said Mr. Volynets. He emphasized that if peace, stability and economic expediency are resumed in Ukraine, the mine will be restored, “but if the hostilities continue, level of groundwater will rise, it will be polluted and can unite with soilwater and then poison drinking water and the environment in whole”. According to the Head of the ITUMU an example of such situation may be mine of the administration of Donetsk mine, located near the Donetsk airport. “Currently the mine is closed and is being flooded. It is ocated on the territory of Donetsk, where almost a million inhabitants live... Beside there are 7 operating mines and there are mines that are not operating. If pumping of water is not restored, we can get 7 thousand cubic meters of tide per hour in other mines. We will have the river of contaminated water“, — said Mikhail Volynets. He also said that the there had been leak of different chemicals in uncontrolled amounts from the plant “Stirol”, and these contamination had joined the groundwater and the miners had been in the zone of influence of pollution, had died on the spot. “If today uncontrolled groundwater is united with a large volume of water at different horizons, it will get into the waters of the Siverskyy Donets and the Azov Sea. Not only Ukraine, but also Russia will be affected, and there will be an environmental disas-

54 In Dokuchaevsk the sewage treatment facilities have stopped work [Electronic resourse] — Mode of access: http://novosti.dn.ua/news/259887-v-dokuchaevske-prekratyly-rabotu-ochystnye-sooruzhenyya 55 Dangerous Donbass: the war in Eastern Ukraine threatens with ecological disaster [Electronic resourse] — Mode of access: http://slavgorod.com.ua/news/article/2161/ 56 In the ATO zone two mines are under threat of flooding [Electronic resource] — Mode of access: http://joinfo.ua/news/view/966667_U-zoni-ATO-dvi-shahti-znahodyatsya-pid-zagrozoyu.html

22 UHHRU 2017 The armed conflict and the state of the environment protection in the East of Ukraine ter, il just will not be possible to live on that territory and it will be a second Chernobyl“, — said the Head of the ITUMU57. On 20.08.2014 the First Deputy Minister of Energy and Coal Industry of Ukraine Yuriy Zyukov said in July 2014 Ukraine lost 297 million UAH for downtime of mines in the East in the ATO zone. “The war has continued for four months, shells are exploding... Such situation in the industry has not occured since the Great Patriotic War. From 30 to 35 mines are not operating. Bandits intentially shoot homes of civilians, mines, shoot buses with miners. In such conditions it is dangerous to come to work and work. There- fore, in the areas of combat coal mining has stopped,“ — said Mr Zyukov. He noted that at present there re mines that are not working because of the lack of explosive substances and explosives. “Explosives in Ukraine are made by two plants — in Donetsk and Krasnyy Luch. Both are captured by terrorists. In mines where drilling and blasting method is used for extraction explosives are over there is no place to get the new. Nine more mines were stopped, unfortunately, due to flooding: mine named after Melnikov, the mine “Lugansk” of the state enterprise “Luganskvugillya”, the mine “October mine” of state enterprise “DVEK” and some others. These are effects of a power outage, power lines, transformer substations are broken, and it is not possible to pump out the water,“ — said the deputy head of the Ministry of Energy.”In the end, only in July due to war, we lost 297 million UAH; 315,000 tons of coal were not extracted under the plan. And from the beginning of May about 420 thousand tons of coal have been lost” — said Zyukov. As previously reported, the pro-Russian insurgents capture mines in Donbass and equip their bases there. In addition, terrorists steal explosives from mines58. On 12.09.2014 in Donetsk region because of the hostilities coal mines are being flooded. UNIAN was informed about this in the Depart- ment of basic industries of Donetsk Regional State Administration. They emphasized that water from underground mine extractions is not pumped in ten coal mines of the region. “Today companies that have been operating recently — the mine “Zhovnneva” and and the mine “Mo- spynska” in Donetsk — are flooded and can not be restored.”The latter was being prepared for closure; however, it continued coal mining. Be- Photo from: ukr.media cause of the inability to ensure the safety of employees in the regional center flooding of the mine “Trudovska” also takes place. In Makiyivka water is not being pumped from the mines “Butovo” and “Yasinivska Glyboka”, in Torez — from “Progress” and mine “Volynska”, in Yenakiyevo — from “Yenakiyevska” and “Poltavska”, near Shahtersk — from “Ilovaiskya”. In addition, because of fighting near the mines on state enterprises “Makiyivvugilla”, “Artemvugillya”, “Or- gonikidzevvuhillya”, “Shahtarskantratsyt” and “Torezantratsyt” coal mining is completely stopped. In the mines, which are a part of them, except for those that are being forcedly flooded, the works are being conducted to maintain life-support systems. In general, in the Donetsk region there are 98 mines59.

57 Flooding of mines in Donbass could lead to environmental disaster — Volynets [Electronic resource] — Mode of access: http://nbnews.com.ua/ua/news/129640 58 For a month Ukraine lost nearly 300 million UAH due to downwork of mines in the ATO zone [Electronic resource] — Mode of access: https://ukr.media/politics/209909/ 59 In Donetsk region flooding of mines is taking place because of the hostilities– RSA [Electronic resource] — Mode of access: http://yearago.unian.ua/politics/983917-u-donetskiy-oblasti-cherez-boyovi-diji-vidbuvaetsya-zatoplennya-shaht-oda.html

UHHRU 2017 23 On the edge of survival: extermination of the environment in the course of the armed conflict in the East of Ukraine

In Donetsk region flooding of mines is taking place because of the hostilities. Photo from: / pr.kharkov.ua

On 13.11.2014 in the area of conducting anti-terrorist operation (ATO) 6 mines were flooded and de-energized because of the actions of terrorists. In particular, a working mine “Zhovnnevyy mine” (DVEK); a mine administration “Volynska” (Torezantratsyt), a mine administration “Luhanske” (Lugan- skvugillya), mine “Poltava” (Orgonikidsevuhillya). Also, according to the report, the same day, terrorists shelled the SE “Pervomayskvugillya” “At the result of explosion of a shall the mine “Pershotravneva” was crushed”. The substation and pit head frame were destroyed. “The mine has no power supply, flooding it is being flooded”, — informed the press service of the Ministry of Energy and Coal Industry of Ukraine. As it was stated, at that time there were 6 people in the mine, measures were being taken to evacuate people”60. On 29.11.2015 on the temporarily occupied territory of Luhansk region insurgents of self-pro- claimed “LNR” flooded one of the local mines. This diversion did not only put the end to the work of the enterprise, but also caused damage to the surrounding areas that are on the side controlled by Kyiv. Because of the water that came near, flooding threatens the mines in Zolote, Toshkivka, Carbonit and Hirske. Houses of civilians have been also put at danger. As the director of the mine “Zolote” Igor Novoselov explained, due to the fact that the local area is located in the lowland, the water may come to the surface; in addition, there is a risk of gas contamination. It should be noted that pipes needed for pumping of water, were mined. Photo from: http://regionews.ua/ However, Ukrainian sappers have released ac-

60 Because of the insurgents in the ATO zone six mines have already been flooded [Electronic resource]. — Mode of access: http://www.dsnews.ua/economics/iz-za-boevikov-v-zone-ato-uzhe-zatopilo-shest-shaht-13112014154900

24 UHHRU 2017 The armed conflict and the state of the environment protection in the East of Ukraine cess, and now at least 500 miners have received jobs, and the region — thermal coal required for the local power station61. Back in 2015, an ecologist Kateryna Norenko emphasized that under estimated calculation one in five mines on the territory of the ATO zone had been flooded. The biggest threat, in her view, is the complete flooding of mines because the minerals from rock formations can skip from mine water into the soil, and then — to the surface, resulting in appearance on the surface of high-mineralized toxic lake. Voids remaining after extraction of coal will be filled with water, at the result of which a mine will begin sinking. However, it is difficult to say what is currently happening in the mines on the occupied territories because they are guarded by convoys. “There is another threat — makeshift coalmines. Illegal coal mining has always had place, but now, when there is no control, there are much more such cases. They dig on the objects of protected areas. Local residents have sent us pictures, on the territory of the nature reserves slagheaps have grown”62. On 20.05.2016 a German expert presented the members of the Trilateral Contact Group with a report concerning the threat of ecological situation in Donbass because of possible flooding of mines. As informed on her page on Facebook Darka Olifer, a spokesman for the Representative of the Trilateral Contact Group in Ukraine, ex-president Leonid Kuchma, research of mines in the ATO zone was conducted by a representative of a German coal mining company Berlin Relations GmbH Rolf Petri. “A German expert Rolf Petri announced on the state of the mines in Donbass — wrote Darka Olifer in the social network. — Earlier, the Ukrainian side initiated the invitation of international environmentalists to assess the situation on industrial enterprises of Donetsk and Luhansk regions. The data of this report causes concern because of possible flooding of a number of mines — such a threat can cause ecological disaster around the Donbass, and so the search for solution of this problem is being conducted”63.

Photo from: http://restoring-donbass.com/

61 Insurgents have flooded a mine near Luhansk [Electronic resource]. — Mode of access: http://news.wikilex.com.ua/2015/11/29/boeviki-zatopili-shaxtu-pod-luganskom/ 62 Scorched earth. Whether the war in Donbas will result in ecological disaster [Electronic resource]. — Mode of access : https://focus.ua/society/332561 63 Flooding of mines in Donbass will lead to environmental disaster in the region — expert [Electronic resource]. — Mode of access: http://vchasnoua.com/donbass/37846-zatoplenie-shakht-na-donbasse-privedet-k-ekologicheskomu-bedstviyu-v- regiona-ekspert

UHHRU 2017 25 On the edge of survival: extermination of the environment in the course of the armed conflict in the East of Ukraine

2.4. Damage to the ETL that supply electricity to the ecologically important facilities On 23.05.2015 during shelling on the territory of the Avdiyivka coke-chemical plant over 40 shells exploded, the fire and leakage of coke gas occured. Shells destroyed all four high-voltage lines that provided the enterprise with electricity, resulting in volley emission of coke gas with a high content of benzene, toluene, naphthalene, hydrogen sulfide, mercaptan, hydrogen cyanide and ammonia64. In the morning on 12.10.2016 power lines in Donetsk filtration plant that provides water to residents of Avdiyivka, Yasinuvata and surrounding villages were restored. The power lines were damaged during the shelling of 8 December. As the press center of the headquarters of ATO informed, it was possible to restore the damaged filtration plant due to operational work of the Ukrainian side of the JCCC. “In the morning of 10 December the SFP will be put into operation — said the informational agency “In Time”. — It will allow providing residents of Avdiyivka, Yasinovata and surrounding inhabited localities with water. Also the work of the Avdiyivka coke-chemical plant will be renewed soon”65.

Donetsk filtration plant. Photo : 112.ua

2.5. Damage to industrial facilities According to V. Hetman, during the armed conflict in Donbass several environmentally hazardous industries caught fire and exploded because of the shelling by artiller, including Avdiyivkyy and Yasynivskyy coke-chemical plants, Lysychanskiy oil refinery plant and Kramatorsk machine-tool plant, a plant producing explosives factory in Petrovskiy in Luhansk region, Luhansk TPP and companies “Tochmash” and “Stirol”. In general in thecombat zone in Donbas more than 500 enterprizes were affected66.

64 Averin D., Denisov M.The war in Eastern Ukraine, hostilities and environmental impacts [Electronic resource]. — Mode of access : http://euaeco.com/?environmental-consequences-fighting/ua 65 Work of the Donetsk filtration plant is restored [Electronic resource]. — Mode of access: http://vchasnoua.com/donbass/47566-vosstanovlena-rabota-donetskoj-fil-troval-noj-stantsii 66 Hetman V. War and protected areas [Electronic resource]. — Mode of access: http://www.zapovidnyk.org/2015/01/blog- post_22.html

26 UHHRU 2017 The armed conflict and the state of the environment protection in the East of Ukraine

Fire on the Lisichansk refinery plant. Photo: http://uapress.info/ru/news/show/31599

In the morning of 18.07.2014 residents of Lisichansk heard a loud explosion on the territory of one of the most powerful enterprise in the city — Lisichansk refinery plant — and then an extremely strong fire started, — informed “Ukrainian Press”67. Container for storage of 50 thousand tons of sulfur caught fire. The article published in the magazine “Focus” “Scorched earth. Whether the war in Donbass will result in an ecological disaster” provided information that during the winter — spring 2015 shells hit several times in Donetsk state factory of chemical products. The last explosion occurred 16 June as a result of the detonation of underground ammunition depots, which could lead to leaks of radioactive waste. “Near the Donetsk airport, between the village of Pisky and the coal mine “Zhovtneva” there is a repository of sources of nuclear radiation. The recent massive explosion could break its integrity, “- said the head of the Ukrainian side of the Joint Center for monitoring and coordination of the ceasefire, Major General Andriy Taran during a meeting with representatives of the OSCE. “This situation is causing great concern of the Ukrainian side, because there is a possibility of leakage of radioactive elements” — said Taran68. Ecologist of an International charitable organization “Ecology. Right. Human” K. Norenko said that many enterprises are dangerous, as Donbass is an industrial region. From explosions or fires at summer 2015 Lisichanskiy refinery plant, Donetsk plant “Tochmash”, Donetsk commissary, Avdiyivka coke chemical plant were affected. Great concern was caused by a plant “Stirol” which has produced and exported ammonia fertilizer. Fortunately, all dangerous substances from the enterprise were evacuated. At the result of explosions pollutants are emitted into the atmosphere. They can get into thee soil with settling soot and acid rains69. On 24.10.2016 an Informational Agency “In time” reported about another threat to the environment. In the village Novgorodske near Toretsk Donetsk region there is a phenol plant, which in its technological process uses ponds for collecting chemical waste. In the ponds dangerous components are stored —

67 Terrorists blew up the Lisichansk refinery plant [Electronic resource]. — Mode of access: http://uapress.info/ru/news/show/31599 68 Scorched earth. Whether the war in Donbas will result in ecological disaster [Electronic resource]. — Mode of access: https://focus.ua/society/332561 69 Ibid

UHHRU 2017 27 On the edge of survival: extermination of the environment in the course of the armed conflict in the East of Ukraine

One of the tailings ponds of the phenolic plant in Novgorodske Donetsk region. Photo from : http://vchasnoua.com/articles/45210-prodolzhenie-voennykh-dejstvij-na-donbasse-mozhet-privesti-k- ekologicheskoj-katastrofe-posledstviya-kotoroj-postavyat-pod-ugrozu-zhizn-v-regione phenols, phenolic compounds, sulfuric acid, formaldehyde, mineral oils, resinous substances, naphthalene and more. Getting of these substances into soil and water could lead to environmental disaster, the consequences of which will put at risk the livebeing in Donetsk region. There are three such constructions, and they are situated not far from residential buildings, on the demarcation line of the ATO forces. In 2014, the territory was repeatedly shelled by artillery and mortars; shells hit both the storages and the dam. Consequently, the tailings pond dam of the 3rd stage, where 510 thousand m3 of dangerous chemical waste have been stored, was partially damaged. However, resolving the issue of conduc- tions of restorations work is complicated by the fact that the village belongs to the municipality of the Toretsk city council, ponds are located on the occupied territory Yasinovatskiy district. Numerous applications to parties of the Joint Center for control and coordination of the ceasefire and stabilization of the demarcation line (JCCC) during long time have returned with a positive result only from the Ukrainian party. As for the Russian generals, they have not given “free hand” because they thought that in such way the Ukrainian military allegedly wanted to conduct works on strengthening their defense line. Only in summer 2016 the long-awaited permission for repair of the dam was received from both sides, but it was not possible to complete the works. Currently, entry to the tailings pond is still banned. “In the case of dam break all content of the tailings ponds will pour into the storage of the CCPP, — a former employee of the plant Serhii Pavlovich informed a journalist of the IA “In time”. — If the second dam with- stands is will be good, but otherwise the chemicals will flow into the hollow “Zalizna” and the river Kryvyy Torets. After Kryvyy Torets contaminated water will get into the river Siverskyy Donets and can reach the sea”. Another interlocutor. Anatoly Georgiyovich, who have worked in the phenol plant for 28 years, says that if the contents of the ponds fall into the river Kryvyy Torets, it will be a disaster for all Ukraine. One thousandth of a milligram per liter of water of the concentrated waste can kill all the living70.

70 Continuation of hostilities in Donbas may lead to an environmental disaster, the consequences of which will endanger the life of the region [Electronic resource]. — Mode of access: http://vchasnoua.com/articles/45210-prodolzhenie- voennykh-dejstvij-na-donbasse-mozhet-privesti-k-ekologicheskoj-katastrofe-posledstviya-kotoroj-postavyat-pod-ugrozu- zhizn-v-regione

28 UHHRU 2017 The armed conflict and the state of the environment protection in the East of Ukraine

2.6. Illegal extraction of natural resourses On 26.02.2016 the IA “In time” informed about detection by the Se- curity Service of Ukraine of illegal mining in the ATO zone — in Slavyansk district a group of busi- nessmen organised a chalk mining, without having the appropriate per- missions. Illegal mining of chalk was conducted during 2015-2016. The organisers of the criminal business received nearly 320 thousand UAH Photo from : http://vchasnoua.com/donbass/34245-sbu-vyyavila- of income monthly. The entrepre- nezakonnuyu-dobychu-mela-v-zone-ato neurs did not pay any taxes in the budget. The criminal proceedings have been instituted against them under Part 1 of Art. 364 of the Crim- inal Code of Ukraine (abuse of official position)71.

2.7. Damage to agricultural enterprises and lands On the outskirts of Severodonetsk farmlands were mined, but in 2015 demining was conducted and in 2016 they are used again. However, the situation is different with pastures — in the area they still remain mined. Because of the inability to feed cattle, it was butchered. In other areas the situation is very different — in some places demining has not been carried out so far. On 10.06.2016 the press service of GMS of the ATO headquarters informed that the head of the coordination of civil- military cooperation of the ATO headquar- Photo from : https://goo.gl/C41H67 ters had taken part in a working meeting in the central office of “The HALO Trust” in Kramatorsk, where the issue of demining of agricultural land in Donetsk region had been discussed. It is planned to demine 2909 hectares of fields in Donetsk region72.

2.8. Damage to national natural parks: Within the ATO zone 135 natural nature reserve objects are located — more than a third of the nature reserve fund of the Eastern region of Ukraine. Among the plants widespread in the ATO t zone, 124 species are included into the Red Book of Ukraine, 36 species — to the European Red List73. Ecologists

71 The SSU has revealed the illegal mining of chalk in the ATO zone [Electronic resource]. — Mode of access: http://vchasnoua.com/donbass/34245-sbu-vyyavila-nezakonnuyu-dobychu-mela-v-zone-ato 72 In Donetsk region almost 3000 hectares of fields require demining [Electronic resource]. — Mode of access: https://goo.gl/C41H67 73 Hetman V. War and protected areas [Electronic resource]. — Mode of access: http://www.zapovidnyk.org/2015/01/blog- post_22.html

UHHRU 2017 29 On the edge of survival: extermination of the environment in the course of the armed conflict in the East of Ukraine have identified 38 objects of nature reserve fund in Donetsk and Luhansk regions, fully or partially damaged due to hostilities74. The main types of damage to the nature reserve fund are the following.

• Deforestation and poaching As the nature conservationists say, due to the absence of any control by the state an uncontrolled use of natural resources by population in the protection areas has started, including the seizure of land areas and hunting. Such activities have been detected within the RLP “Kramatorskyy”where on the area of 100 hectares unidentified persons without special permission for use of natural resources and in the absence of relevant decisions of the executive authorities, conducted agricultural works, resulting causing damage to the state amounting to almost one million UAH. In the RLP “Izyumska luka” hunting towers are installed and mass felling is being conducted, as well as in the neighboring RLP “Svyati Hory”. On the questions of activists: “What's happening? Who are these people?” — woodcutters have one response: “It is for the needs of the ATO”. With these words trucks with timber usually disappear in unknown direction — said ecologist of the “En- vironment-People-Law” Oleksiy Vasyluk75. Experts ICO “Environment-People-Law” have collected facts proving the destruction of protected areas in the ATO zone. The amount of damages only for destructoyed by hostilities protected forests is 13.9 billion UAH. Insurgent with his noble deer killed (photo from social network) However, this figure is not final76. According to a volunteer in autumn 2015 he had downloaded pictures with slain deer from the user page in the social network “VKontakte” of a LNR insurgent from Stanitsa Luhanska. However, our attempts to identify a man shown in the photo at present have had no results. As of October 2016 in Donetsk region the opening of hunting seasons for all types of game animals in the hunting season of 2016/2017 was prohibited on the regulatory level before completion of the anti-terrorist operation, except for regulation of the population (withdrawal (catching and shooting) of wild animals). Regulation of population of wild animals that are in the wild may be carried out on condition that their number threatens the lives and health of people, home animals, causing considerable damage to agriculture, forestry or hunting, violates the natural balance of species, and threatens the existence of other species of wild animals. This was reported by a Deputy Chairman of Donetsk regional state administration A. Lavrik at a working meeting with district hunting experts, representatives of law enforcement bodies, veterinary services, the Department of Environment and Natural Resources77.

74 “For us the life was the war before…” [Electronic resource]. — Mode of access: http://tyzhden.ua/Travel/150006/Print- View 75 War and Environment nature reserves in the ATO zone [Electronic resource]. — Mode of access: http://life.pravda.com.ua/society/2015/03/7/190398/ 76 Hetman V. War and protected areas [Electronic resource]. — Mode of access:: https://goo.gl/69DbYk 77 In Donetsk region ban on hunting will be in force until the completion of the ATO [Electronic resource]. — Mode of access: http://vchasnoua.com/donbass/45282-na-donetchine-zapret-na-okhotu-budet-dejstvovat-do-zaversheniya-ato

30 UHHRU 2017 The armed conflict and the state of the environment protection in the East of Ukraine

• Fires As reported by the Ministry of Ecology and Natural Resources of Ukraine, the most massive impact on the ecological state of Donetsk and Luhansk regions is fires that hadcovered 17% of forests and 24% of steppes in the ATO zone. In particular fires damaged number objects of natural reserve fund: nature reserves “Provalskyy steppe”, “Tryokhizbenskyy steppe” (these are two branches of the Luhansk Nature Reserve, including “Provallya” — in the occupied area), regional landscape parks “Donetskiy kryazh” and “Zuievskyy” a national park “Svyati Hory”, 13 natural reserves78. Particular damage was caused to the regional landscape park “Donetskiy kryazh” which completely burned on the area of over 3,000 hectares. Ecologists have calculated that only for the period from June to September 2014 in the ATO zone about 3,000 fires occurred, that is much more than in previous years. The main reasons for the increase in their number were identified: - The dry season, that is traditionally accompanied by increase in the number of ignition of dry vegetation in the region; - Inability to extinguish the fires (fire trucks are stolen, forests and steppes are mined, shelling are continuously ongoing); - A large number of fires from explosions; - Deliberate arson for tactical pur- poses79. • Construction of fortifications An ecologist Oleksiy Vasilyuk told to the “UP.Zhyttya” about construction of fortifications on the territories of nature Trenches in the NRP “Svyati Hory”. reserve objects. Thus, during the con- Photo by D. Shuryayev struction of dugouts, trenches and covered fire positions in the national park “Svyati Hory”, a large number of forest had been cut. Fortifications were also built by insurgents on the chalk cliffs in reserve “Kreydyana Flora” and the regional landscape park “Kramatorskyy” that are now on the freed territory80. Furthermore, as reported by the Ministry of Ecology and Natural Re- sources of Ukraine, the fortification was also built far outside the ATO zone — in Trenches in the reserve. Photo by S. Lymanskyy

78 Dangerous Donbass: the war in Eastern Ukraine threatens with ecological disaster [Electronic resource]. — Mode of access: http://slavgorod.com.ua/news/article/2161/ 79 War and Environment. Forests on fire [Electronic resource]. — Mode of access: http://life.pravda.com.ua/society/2015/02/26/189960/view_print/ 80 War and Environment nature reserves in the ATO zone [Electronic resource]. — Mode of access: http://life.pravda.com.ua/society/2015/03/7/190398/

UHHRU 2017 31 On the edge of survival: extermination of the environment in the course of the armed conflict in the East of Ukraine

Kharkiv region in the national park “Dvorichanskyy”, which is on the border with Russia81. • Damage from the explosion and contamination of the territory with products of explosions According to the Ministry of Environ- ment, some objects have been directly damaged due to shelling: the national park “Svyati Hory”, branch of the Ukrain- ian steppe reserve “Kalmiuskiy” and “Kreydyana Flora”, the regional landscape parks “Donetskiy kryazh” and “Slovyanskiy resort” and a number of re- National park "Svyati Hory" after shelling. 82 Photo by Victor Storozhenko serves . Research of soils in the area ATO in- dicates a significant content of heavy metals in place of exploding shells. Thus, concentration of titanium in samples of soil at the site of explosion of shells is 150 times higher than background rates. There is ex- ceeding of sulfates in 2.5 times and also vanadium, lead, cadmium83. Conducted on initiative of the ICO “EPL” analysis of the soil from craters that were formed because of explosions of shells near the reserve “Kreydyana Flora”, showed increased content of sulfates in the soil and a large number of heavy metals: titanium, vanadium, strontium. According to the experts, it includes a serious threat because if just the craters are just buried and the land is used for agricultural purpose, dangerous substances will get into the food and the human body. Since heavy metals accu- mulate in the body and are not excreted, over time their number may reach a critical point and lead to kidney disease, cardiovascular and nervous system cancer. The study of water samples has showed increase in the content of sulphates шт two and a half time. In addition, ecologists have noticed the very large scale of soil destruction in the ATO zone and have calculated that in order to simply bury craters from explosions available now on the site 15 to 15 kilometers; 11 thousand KamAZ trucks are required84. • Clogging of territories On 23.07.2015 the Head of the branch “Kreydyana Flora” of the Ukrainian steppe natural reserve Serhii Limanskyy the site of Mariupol “0629” that on the territory of the reserve the rival forces had dug 81 trenches, 15 hectares of the area were clogged, among which 5 hectares in the natural boundary Kuchugury and about 10 hectares in Bolovinom ravine, Seryozhyna hollow, Velyka and Mala Rozsohuvata85.

81 Dangerous Donbass: the war in Eastern Ukraine threatens with ecological disaster [Electronic resource]. — Mode of access: http://slavgorod.com.ua/news/article/2161/ 82 Dangerous Donbass: the war in Eastern Ukraine threatens with ecological disaster [Electronic resource]. — Mode of access: http://slavgorod.com.ua/news/article/2161/ 83 Balyuk G.I., Shompol O. A. National and international legal regulation of problems environmental protection and environmental security in armed conflicts [Electronic resource]. // Administrative Law and Procedure — 2015. — no. 2 (12). — P. 142–158. — Mode of access: https://goo.gl/MwIomb 84 Scorched earth. Whether the war in Donbas will result in ecological disaster [Electronic resource]. — Mode of access: https://focus.ua/society/332561/ 85 In the reserve "Melovaya Flora", losses inflicted by the war, have been calculated [Electronic resource]. — Mode of access: https://www.0629.com.ua/news/899739

32 UHHRU 2017 LIABILITY FOR ENVIRONMENTAL 3 DAMAGE CAUSED AT THE RESULT OF ARMED CONFLICT

The above facts only slightly reflect the real extent the damage (both direct and indirect) in management of natural resources and ecological safety. On the agenda there is an urgent need for fixation of each case; determining the types of the caused environmental damage; measuring, evaluating and establishing its volume; identifying the perpetrators. The Minister of Ecology and Natural Resources of Ukraine Ostap Semerak in an interview to “The League”, said: “The armed conflict in the east and the occupation of the Crimea — is a great environmental disaster for those regions. We can not assess the damage, caused to the steppe vegetation, fauna and rivers. So much of the forest in the national parks has been cut. I gave instructions to our institutions concering estimation of that damage in monetary terms, but there are no assessment methodologies, so it is hard to predict the consequences”86. Next step should be bringing perpetrators to liability and obtaining compensation for caused damage. How- ever, there is a significant problem, because in most cases there is no documentary evidence as to who exactly (military or civilian persons and who specifically), or which side of the conflict (Armed Forces of the Russian Federation, pro-Russian illegal armed groups of “LNR”, “DNR”; forces of the ATO of Ukraine) has caused a particular damage to the environment. The definition of legal mechanisms of bringing to liability and compensation (international or national law, application of civil, disciplinary, administrative and criminal liability) depend on solution to these questions. We will try to see into this matter. issue. First, on what, in our view, we should stop — is the official position of Russia on the international legal regulation of the environmental protection during armed conflicts. It should be noted that Russia objected to the necessity of development of the subject of environmental protection during armed conflict in the framework of the International Law Commission of the United Nations, because, according to its representatives, the IHP already contains sufficient rules governing environmental protection during armed conflict and the period before and after the conflict is a peaceful time, to which the general rules on environmental protection are applied87. However, these observations, as it is known, were not taken into account by the Commission since it began active work on development of relevant draft principles. In the event of approval of the draft principles on these issues by the Commission Ukraine will have an arsenal of important arguments to justify its position on bringing Russia to liability and obtaining compensation for environmental damage caused during the occupation of the Crimea and the war in Eastern Ukraine. Ukraine uses international pressure tools and applications to draw world’s attention to the ecological situation on the occupied territories. Thus, at the last UN Environment Assembly Ukraine initiated the adoption of the resolution UNEP / EA.2 / Res.15 “Protection of the Environment in Areas affected by armed conflict”, which was supported by many countries. As part of its implementation, UNEP will provide assistance to such state, particularly in conducting post-conflict environmental assessments and its recovery88. “When the armed conflict is over, and it will definitely be over, these resolutions will be an evidential tool in resolving court disputes. Therefore, it should be done, and we are doing it. Our ex-

86 Insurgents have caused irreparable damage to the environment — Semerak [Electronic resource] — Mode of access: http://zik.ua/news/2016/09/29/boyovyky_zavdaly_nepopravnoi_shkody_dovkillyu__semerak_908692 87 Preliminary report on the protection of the environment in relation to armed conflicts, Submitted by Marie G. Jacobsson, Special Rapporteur / International Law Commission, Sixty-sixth session, Geneva, 5 May-6 June and 7 July-8 August 2014, A/CN.4/674. — Р. 5, 32. 88 Resolution of the United Nations Environment Assembly of the UN Environmental Protection Program UNEP/EA.2/Res.15"Environmental Protection in Areas Affected by Armed Conflicts", Nairobi, May 23-27, 2016

UHHRU 2017 33 On the edge of survival: extermination of the environment in the course of the armed conflict in the East of Ukraine perts-ecologists are planning to join the negotiating groups working in Minsk. The Ukrainian Ministry of Foreign Affairs conducts international pressure on Russia, and especially regarding these threats, our experts are among the assistants”89. An analysis of the impact of war on fulfillment by the Parties of their commitments on environmental protection under international environmental treaties listed in the first section, allows to conclude that all bilateral agreements with Russia in the field of environmental protection concluded prior to the occupation of the Crimea and armed conflict in Eastern Ukraine continue their action, including: the Agree- ment between the Government of Ukraine and the Government of the Russian Federation on cooperation in environmental protection of 1995, the Agreement between the governments of Russia and Ukraine on joint use and protection of water objects on the border of 1992; the Agreement between the Government of Ukraine and the Government of the Russian Federation for ensuring environmental safety and environmental control in the field of deployment of the Black sea fleet in Ukraine of 1998, the Treaty between Ukraine and Russia on cooperation in use of the Azov sea and Kerch Strait of 2003, the Agreement between the Government of Ukraine and the Government of the Russian Federation on measures of ensuing the safety of navigation in the Azov sea and Kerch Strait of 2012, the Agreement on interregional and cross-border cooperation between Ukraine and Russia of 2010, which envisages establishing oEuropean regions, the aim of establishment of which includes protection and improvement of the environmental state. The Russian Federation is responsible for violations of these treaties, resulting in causing significant damage to Ukraine and is obliged to reimburse it in accordance with provisions of the international law. Provisions of Art. 61 the Vienna Convention for Law of International Treaties of 1969 are fully applicable to the international treaties concerning the occupied Crimea and justify the inability of Ukraine to fulfill its international legal obligations under several multilateral environmental agreements, including those relating to the preservation of areas of natural reserve fund, protection of species of the wild fauna. This has negative consequences for the global environment, the environment of Ukraine in general and the environment of the Crimea in particular. As it is rightly noted by H. Andrusevych and A. Andrusevych “Ukraine is unable to meet its obligations for a number of international legal conventions to which it is a party. This concerns reporting, monitoring, conducting specific activities and their financing. This applies, in particular, to the Convention on the Protection of the Black Sea Against Pollution and a number of Protocols, Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and con- tiguous Atlantic Area, the Convention on Wetlands of International Importance especially as Waterfowl Habitat and others”90. Ukraine has lost control over certain wetlands of international importance included on its behalf into the corresponding Ramsar List of 1971. For today in the Ramsar list 6 out of 33 wetlands of international importance of Ukraine are located in the Crimea. The Russian Federation is also a party to this international agreement, but Ukraine has to fulfill its international legal obligations for the protection of wetlands of international importance in the Crimea, that can not be done under occupation. In this regard, we believe that Ukraine should submit an application to the secretariats of these conventions and the secretariat of the UNESCO Convention on Protection of the World Cultural and Natural Heritage. Regarding the

89 Illegal quarries and polluted water: the occupants inflicted irreparable environmental damage to the Crimea and Don- bas — Semerak // http://ecology.unian.ua/1547172-nelegalni-kareri-ta-zabrudneni-vodi-okupanti-nanesli-ekologiji- krimu-ta-donbasu-nepopravnu-shkodu-semerak.html 90 Andrusevych N., Andrusevych A. Occupation of the Crimea: // environmental threats Society and Environment: analytical review. — March 2014 — Mode of access: www.rac.org.ua/fileadmin/user_upload/documents/policy_re- views/2014/2014_Mar_M.pdf — С. 1.

34 UHHRU 2017 Liability for environmental damage caused at the result of armed conflict latter, in April 2015 at the 196th session of the Executive Board of UNESCO a resolution “Monitoring by UNESCO situation in the Autonomous Republic of Crimea (Ukraine)” was approved within which meetings between representatives of Ukraine and this organization take place, during which, in particular, the issues of preservation of cultural, natural and scientific heritage are being discussed. Ukraine and Russia are parties to AP I, therefore, this document can be applied when determining the degree of culpabilityof Russia in causing environmental damage during the armed conflict in Ukraine, which,concerning the occupation of the Crimea, is classified as international and can have the same qualifications regarding the situation in Donbas91. According to par. 169 of the Report on actions concerning the preliminary investigation, “additional information .... points to a direct military confrontation between the Russian armed forces and the Governmental forces of Ukraine, which assumes presence of international armed conflict in the context of hostilities in Eastern Ukraine on since 14July 2014 as the latest, simultaneously with the existence of non-international armed conflict”92. Thus, to that part of the armed conflict can also be applied provisions of law of armed conflict relating to armed conflict of international character. Qualification of actions of the Armed Forces of the RF concerning violation of Articles 35 and 55 of the AP I assumes necessity of prooving the use of methods or means of warfare which are intended to cause, or as expected, will cause a large, long-term and severe damage to the natural environment. Damage for the purposes of the AP I is significant if it covers the territory of 20 thousand square kilometers. The territory of so-called “LPR” and “DPR” and the theater of hostilities in Donbas cover about a third of Donetsk and Lugansk regions — about 17 thousand square kilometers, approaching the terri- torial scope of Articles 35 and 55 of the AP I. In the preparatory documents for the AP I the period of several decades is specifiedin order to recognize the environmental damage as long-term. This is most difficult part for proving liability of the RF, although modern means of measurement, methodology for assessing environmental damage and methods of forecasting (influence of dangerous substances on fauna, flora, human etc.) can greatly help in this. Finally, for recognizing damage to the environment as severe, it should also cause damage to the health or survival of the population. A second option for qualification of actions of Armed Forces of the RF regarding violations of IHL on causing damage to the environment is application of Art. 51 of the AP I, under which it is possible to qualify the environmental damage as collateral (additional, indirect). Qualification of actions of the Armed Forces of the RF is also possible under Art. 56 of the AP I that provides special protection for equipment and buildingscontaining dangerous forces. According to the interpretation provided by the International Committee of the Red Cross, Article 56 also applies to oil refineries and chemical plants93. Thus, during the period of armed conflict in a combat zone in Donbas more than 500 enterprizes were affected, several environmentally hazardous industries caught fire and exploded because of artillery hits, among them — Avdiyivskyy and Yasenivskyy coke-chemical plants, Lysychanskiy oil refinery and Kramatorsk machine-tool plant, explosive producing plant in Petrovsk Luhansk region, Luhansk TPP etc94. Additional Protocol II relating to the protection of victims of armed conflicts of non-international character, does not contain regulations directly aimed at protecting the environment. However Rule 43 of customary IHL applies to armed conflict international character of: “The general principles on the

91 Report on preliminary investigation activities (2016) // https://www.icc-cpi.int/iccdocs/otp/161114-otp-rep-PE- Ukraine.pdf 92 Ibid 93 Second report on the protection of the environment in relation to armed conflicts ... Р. 54. 94 Baluk H. I. Shompol O. A. National and international legal regulation of environmental issues and environmental security in armed conflicts. — Mode of acess: https://goo.gl/Ox8M7Y

UHHRU 2017 35 On the edge of survival: extermination of the environment in the course of the armed conflict in the East of Ukraine conduct of hostilities apply to the natural environment: A. No part of the natural environment may be attacked, unless it is a military objective. B. Destruction of any part of the natural environment is prohibited, unless required by imperative military necessity. C. Launching an attack against a military objective which may be expected to cause incidental damage to the environment which would be excessive in relation to the concrete and direct military advantage anticipated is prohibited”. Also, we can not exclude the possibility of applying for the period of non-international armed conflict Rules 44 and 45, especially taking into account general trends in the development of international humanitarian law and environmental law. Therefore, it is possible to bring to liability the leadership of so-called “LNR” and “DNR” and anti-government armed groups that are fighting in Eastern Ukraine, for violation of these customary norms, especially in view of the environmental damage that occurred directly by their fault. In case of recognition of the overall control by the RF over actions of anti-government armed groups, and qualifications of the conflict in Eastern Ukraine in this part as an international armed conflict, with application of the relevant provisions of IHL, relevant provisions of the AP I concerning environmental protection, will be applied to acions of anti-government armed groups. Also in this case the RF is responsible for the damage caused to the environment as a result of acts of anti-government armed groups under Art. 8 of Articles on Responsibility of States for Internationally Wrongful Acts, according to which: “The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct”. Convention ENMOD, to which both Ukraine and Russia are parties, may be used in interstate dis- pute, however, has a narrow specific subject of regulation to be actually applied in the Ukrainian-Russian armed conflict. Ukraine has recognized the jurisdiction of the International Criminal Court on war crimes and crimes against humanity since the beginning of the aggression of Russia. Bringing the leadership of the RF and command the of the RF Armed Forces to criminal liability under Article 8.2.b.iv of the Rome Statute requires compliance with cumulative standard and proof of intent to commit attack, and knowledge that such attack will cause significant environmental damage, and that damage is clearly not commensurate with the concrete and directly anticipated general military advantage. Considering that the international tribunals are reluctant to admit the fact of international crime in the environmental field and to determine the perpetrators for criminal prosecution, some researchers suggest such actual model, in which the international tribunals and courts will issue sentences for crimes against humanity or certain war crimes, and a crime against the environment will be recognized as an adjunct, instrument of commitment of a main crime95. Ukraine can also use this option to prove the guilt of Russia in potential proceedings in the International Criminal Court. On 16 January 2017 Ukraine filed a lawsuit to the International Court of Justice against Russia, in which it referred to violation by that State of the provisions of the International Convention for the Suppression of the Financing of Terrorism of 1999 and the Convention on the Elimination of All Forms of Racial Discrimination of 1965. However, in its lawsuit Ukraine did not mention violation by Russia of its international legal obligations that led to causing environmental damage as a result of aggression against Ukraine. Ukraine also initiated arbitration proceedings against the Russian Federation under the United Nations Convention on Law of the Sea 1982 for protection of its rights as a coastal state in the surrounding sea areas of the Crimea in the Black Sea, the Azov Sea and Kerch Strait: Ukraine asks the arbitration tribunal to confirm

95 Tara W. Prosecuting attacks that destroy the environment: Environmental crimes or humanitarian atrocities? // George- town International Environmental Law Review. — Summer 2005. — Mode of access: http://findarticles.com/p/articles/mi_qa3970/is_200507/ai_n14684873/pg_4

36 UHHRU 2017 Liability for environmental damage caused at the result of armed conflict its rights as a coastal state and compel the Russian Federation to cease internationally wrongful acts in the respective sea waters, provide Ukraine with the appropriate assurances of their non-repetition and to compensate all losses incurred to Ukraine by the Russian Federation96. On 14 September 2016 the Ministry of Foreign Affairs of Ukraine officially sent to the Ministry of Foreign Affairs of Russian Federation the notice of arbitration and statement about initiation arbitration proceedings under Annex VII to the Convention. The Deputy Foreign Minister of Ukraine for European Integration outlined the major claims against the Russian Federation in connection with this lawsuit: the capture of deposits of mineral resources and the illegal extraction of oil and gas on the continental shelf of Ukraine in the Black Sea; usurpation of the right to regulation of fishing, the illegal catch of fish resources and preventing Ukrainian fishing companies from catching fish in the sea area adjacent to the Crimean peninsula; building of the gas pipeline, power lines and a bridge across the Kerch Strait Ukraine without consent, illegal blocking Ukrainian transit vehicles across the Kerch Strait, usurpation of navigational rights; conducting research of archaeological and historical sites on the bottom of the Black Sea without the consent Ukraine97. We hope that within the framework of this proceeding Ukraine will provide evidence of causing environmental damage to our state by Russia. This step is an example of a real application of international legal mechanisms and evidence of the need for systematic work towards fixing the damage caused to the environment Ukraine as a result of Russian aggression. It follows from the analysis of the application of IHL and international criminal law that for Ukraine it will be quite difficult to bring Russia and its officials to liability for environmental damage caused to the environment Ukraine since the moment of aggression against our country in international courts (Russia will most likely not recognize jurisdiction of the IC of the UN; at the International Criminal Court or the Special Criminal Tribunal created even bypassing the UN Security Council resolution, it is difficult to prove achievement of sufficiently high thresholds set by relevant international treaties), but this does not mean that such attempts should not be done. There are possible options for prosecution for environmental damage in the form of liability for damage civil populations and civilian objects, including, side damage, and also in the form of liability for crimes against humanity and war crimes. Moreover, the modern international law is increasingly becoming more ecologically focused; decisions of international courts regarding environmental damage indicate taking into account needs of environmental protection during any activity, including the military. One of the options of implementation of the liability of the RF and receiving from it compensation for environmental damage may be establishment of a special quasi-judicial body within the UN such as the UN Commission on Compensation, established pursuant to the UNSCR no. 687 of 1991 on liability of Iraq for invasion of Kuwait. In any event, under conditions of failure of bringing the RF to liability for any environmental damage in Donbas and damage to the Crimea in international criminal courts on the basis of international humanitarian and criminal law, it will be responsible in accordance with customary rules of the law of international responsibility, codified in Articles on responsibility of states for internationally wrongful acts. Another option for proving the guilt of the RF for environmental damage remains a possibility of issuing by the UN IC an appropriate advisory opinion. In addition, in the Euro- pean Court of Human Rights it will be possible to prove violation of Article 8 of the European Convention on Human Rights of 1950 as a result of causing environmental damage to individuals.

96 Statement of the MFA of Ukraine concerning violations of the arbitration proceedings against the Russian Federation under the UN Convention on the Law of the Sea. -. — Mode of access: http://mfa.gov.ua/ua/press-center/news/50813- zajava-mzs-ukrajini-shhodo-porushennya-arbitrazhnogo-provadzhennya-proti-rosijsykoji-federaciji-vidpovidno-do- konvenciji-oon-z-morsykogo-prava 97 Which lawsuits Ukraine will fine against Russia? // Zerkalo nedyeli. — January 2016 — Mode of access: http://zn.ua/columnists/kakie-iski-protiv-rossii-podast-ukraina-202564_.html

UHHRU 2017 37 On the edge of survival: extermination of the environment in the course of the armed conflict in the East of Ukraine

Russia as a state is responsible for causing any damage to Ukraine and Ukrainian citizens by its authorities, armed forces and special services of the RF in the Crimea, Donetsk and Luhansk regions, and for the unlawful acts committed by anti-government armed groups, in accordance with international law on international liability of States. However, this does not exclude the need to prosecute individuals who are members of these structures and groups on the basis of norms of the Ukrainian criminal legislation which contains provisions on criminal punishment for crimes against the environment (Section VIII) under Art. 438 of the Criminal Code of Ukraine. In addition, if the environmental damage was caused by a terrorist act, it is necessary to qualify such action under Art. 258 of the Criminal Code of Ukraine. If it is established that the environmental damage was caused by the acts of the Ukrainian side of the conflict or civilians, then, depending on the circumstances, rules of national civil (Articles 319, 394, 1187, 1188, 1189 of the Civil Code, Articles 68, 69 of the Law “On environmental protection”), discipline (Articles 142, 147 of the Labor Code, Art. 68 of the Law “On environmental protection”), administrative (chapter 7 and Articles 46-1, 53-4, 95, 24, 25 of the CAO) or criminal law (section VIII and Articles 113, 197-1, 258, 261, 292, 299, 441, 438 of the CC) may be applied. However, the analysis of legal practice conducted by us shows that today such opportunities are practically not realized. Although the available data of official crime statistics make it possible to estimate the total volume of distribution of illegal events, but they can not claim to be absolutely accurate and complete. Thus, the current procedure for collecting statistical data does not allow allocating separately information on the number of crimes committed in the area of the anti terrorist operation — it only takes into account the total number of crimes committed in Donetsk and Luhansk regions. Moreover, even that data can not be considered completely reliable because of, first, high level of latency, and secondly, because the official statistics do not include crimes committed on the territory temporarily uncontrolled by Ukraine. In addition, it is impossible to distinguish from the general statistical data the number of crimes committed against the environment because in some cases one rule covered several different ostents (for example, the objective side of diversion (Art. 113 of the Criminal Code) appears in seven forms, each of which involves committing socially dangerous actions (including bombings and arson) aimed at: 1) the mass destruction of people, causing injuries or other damage of their health; 2) destruction of or damage to objects that have great economic or defensive value; 3) radioactive contamination; 4) mass poisoning; 5) spread of epidemics; 6) spread of epizootics; 7) distribution of epiphytoties). Below we present the available data on the number of crimes that infringe or may infringe on the environment, registered in Donetsk and Luhansk regions in the period from 2013 to 201698, 99. Choosing this period for this analysis was determined by the need for the comparison of statistical indicators during armed conflict in Eastern Ukraine (2014 — 2016) with more or less stable in the economic, social and criminal sense 2013.

Pic. 1. Dynamics of the number of registered crimes under Art. 113 of the Criminal Code (diversion) for 2013 — 2016

98 A letter from the Prosecutor's Office of Luhansk region of 21.10.2016 № 19-417-16 99 A letter from the Prosecutor's Office of Luhansk region of 24.10.2016 № 19-1599-16

38 UHHRU 2017 Liability for environmental damage caused at the result of armed conflict

As we see in Luhansk region during the period of 2013 — 2016 more cases of diversion were recorded than in the Donetsk region, and the peak was in 2014. However, it is unknown whether any of them were directed against the environment, and if they were, how many of them there were.

Pic. 2. Dynamics of the number of registered crimes under Art. 197-1 of the Criminal Code (Unauthorized occupation of land and unauthorized construction) for 2013 — 2016 Here the situation is somewhat different: Donetsk region is at the first place by the number, and the maximum number of crimes in both regions was recorded in 2015.

Pic. 3. Dynamics of the number of registered crimes under Art. 236 of the Criminal Code (violation of rules of environmental safety), for 2013 — 2016 In this article both in Donetsk and Luhansk regions only isolated cases were reported, but it is unknown whether they concerned socially dangerous acts related to the armed conflict.

Pic. 4. Dynamics of the number of registered crimes under Art. 239 of the Criminal Code (pollution or damage of land), for 2013 — 2016 As it can be seen from the picture, the highest number of crimes in this category was recorded in the pre-war 2013, after which the rates dropped significantly. However, considering the information provided in the previous section, it can be argued that these data do not reflect the real situation and indicate a high degree of latency of the crime.

Pic. 5. Dynamics of the number of registered crimes under Art. 239-1 of the Criminal Code (illegal acquisition of surface soil (surface layer) of land) for 2013 — 2016

UHHRU 2017 39 On the edge of survival: extermination of the environment in the course of the armed conflict in the East of Ukraine

These data indicate only isolated cases where on the facts of misappropriation of surface soil criminal proceedings were instituted (a total for 4 years in Donetsk region — 4, in Luhansk region — 1). And so it is unknown whether they concerned socially dangerous acts related to the armed conflict.

Pic. 6. Dynamics of the number of registered crimes under Art. 240 of the Criminal Code (violation of rules for protection or use of natural resources), for 2013 — 2016

The picture shows that the maximum amount of this type of crimes both in Donetsk and Luhansk regions was registered in 2013 (59 and 167 cases, respectively) and then its indicators dropped in many times. This dynamic is not natural and is caused, rather, most of all, by the fact that a significant number of mining sites (both legal and illegal) as a result of hostilities appeared on territory outside the control of Ukrainian government. However, deterioration of the work of law enforcement bodies has also played its role.

Pic. 7. Dynamics of the number of crimes under Art. 241 of the Criminal Code (air pollution), for 2013-2016

Again, there were given the absolute indexes and dynamics of crimes under Articles 241, 242 and 245 of the Criminal Code, and they don’t corespond the estimates of the ecologists — that were given in the previous section — regarding their actual scope that, in our opinion, confirms the latency of these types of crimes. The diagram shows almost identical indexes for the Donetsk and Luhansk regions for this type of crime and the same dynamics. Thus we can see that in 2014 the number of registered cases in both regions decreased almost in two times, and in 2015 — again increased.

Pic. 8. Dynamics of the number of registered crimes under Art. 242 of the Criminal Code (violation of rules for of safety waters) for 2013 — 2016

40 UHHRU 2017 Liability for environmental damage caused at the result of armed conflict

Pic. 9. Dynamics of the number of registered crimes under Art. 245 of the Criminal Code (destruction or damage to the objects of the plant world) for 2013 — 2016 years

Pic. 10. Dynamics of the number of registered crimes under Art. 246 of the Criminal Code (illegal cutting of forests), for 2013-2016 years We shall also note that in many types of crimes that cause harm to the environment during the analyzed period in the Donetsk and Lugansk regions there were initiated either no criminal proceedings (Articles 237, 238, 244, 250, 251, 441 of the CC), or registered rare facts (thus, for 4 years under Art. 239-2 of the CC were instituted 1 proceeding, under Art. 243 — 2 proceedings, Art. 253 — 1 (all in the Donetsk region), under Art. 247 — 2 proceedings in the Donetsk region, 1 — in the Luhansk region, under Art. 254 — 1 and 4 proceedings respectively). Regarding to the other types of socially dangerous acts, their number was also quite small (Table. 1 — 4). Table 1 Dynamics of the number of registered crimes under Art. 248 of the Criminal Code (illegal hunting), for 2013-2016 years 2013 2014 2015 9 months of 2016 Donetsk region 0 0 1 2 Luhansk region 2 0 1 0

Table 2 Dynamics of the number of registered crimes under Art. 252 of the Criminal Code (Willful destruction or impairment of territories protected by the State and sites of natural conservation), for 2013-2016 years 2013 2014 2015 9 months of 2016 Donetsk region 3 0 0 1 Luhansk region 0 1 0 0 Table 3 Dynamics of the number of registered crimes under Art. 292 of the Criminal Code (Endamagement of facilities on main pipelines for oil, gas, or oil products), for 2013-2016 years

2013 2014 2015 9 months of 2016 Donetsk region 2 3 0 0 Luhansk region 5 5 0 1

UHHRU 2017 41 On the edge of survival: extermination of the environment in the course of the armed conflict in the East of Ukraine

Table 4 Dynamics of the number of registered crimes under Art. 299 of the Criminal Code (Cruelty to animals), for 2013-2016 years 2013 2014 2015 9 months of 2016 Donetsk region 12 5 2 3 Luhansk region 2 2 0 2

Pic. 11. Dynamics of the number of registered crimes under Art. 249 of the Criminal Code (Illegal fishing or hunting or any other sea hunting industry), for 2013-2016 years

If under the other articles of the Criminal Code, that we have listed above, the differences in the statistical data between Donetsk and Luhansk regions weren’t significant, then under the Article 249 indicators of the Donetsk region in several times higher than in the Luhansk region. This is explained by the geographical features of the territories: Donetsk region in the south bordering by the Sea of Azov. The biggest number of crimes over the analyzed period was recorded under the Article 258 of the Criminal Code of Ukraine — act of terrorism.

Рic. 12. Dynamics of the number of registered crimes under Art. 258 of the Criminal Code (Act of terrorism), for 2013-2016 years

However, whether any of these crimes were related to the harm to the environment, and if so — their certain number cannot be established from the statistical data. Additionally, disciplinary practice of the ATO forces concerning violations of measures of environmental protection was studied. On our request on the number of disciplinary and administrative offences and crimes committed by units subordinated to the Ministry of Defence (MoD) and number of persons who were prosecuted on the facts of violations of the measures of environmental protection in the area of the ATO for 2013 — 2016 years it was given the information that such data haven’t been recorded. In addition, the administrative bodies of the MoD reported that according to Art. 3 on Law of Ukraine “On temporary measures for the period of the antiterrorist operation” of 02.09.2014 bodies and officials authorized by law to conduct the state supervision (control) in the sphere of economic activity during the period and in the territory of the antiterrorist operation temporarily prohibited to conduct scheduled and

42 UHHRU 2017 Liability for environmental damage caused at the result of armed conflict unscheduled inspections of subjects of economic activity that carrying out activities in the zone of the antiterrorist operation100. The Main Department of the National Guard of Ukraine also informed that troops of the National Guard of Ukraine weren’t brought to the disciplinary, administrative, criminal responsibility for violations of measures of environmental protection in the territory of the antiterrorist operation in the Donetsk and Luhansk regions during 2014 — 2016 years101. In addition, the monitoring on the documents on crimes committed in the Donetsk and Luhansk regions during 2014 — 2016 years, on the ground of information from the Unified State Register of Court decisions in the public domain102. As a result we did not find any court decision on bringing the perpetrators to responsibility or compensation for environmental damage for crimes that directly related to military action. Also in the Register there are no court decisions on the willful destruction or impairment of territories protected by the State and sites of natural conservation (Art. 252 of the CC), although, as we have seen from the statistics during this period five criminal proceedings were initiated (Table 2). However, there is a small court practice on bringing to the responsibility for certain types of crimes, which were caused damage to the environment in the area of the ATO. Thus, there are a number of decisions on the facts of pollution or damage to land (Art. 239 of the CC) — namely, for permission to conduct inspections for compliance with environmental legislation by the LLC DTEK “Dobropillyavugillya” during the period of using of land sections, which is located in the Hannivska village council of the Do- bropillya district of the Donetsk region103,104. By the facts of violation of rules related to the protection of mineral resources (Art. 240 of the CC) was issued several guilty verdicts. In particular, un unemployed resident of Popasnaja district of the Luhansk region in early January 2015 on a land area of the agricultural land, violating the requirements that establish the procedure for the right to use the land and without special permits for using the mineral resources, using rented equipment and employees, has organized building of the mine shafts and then coal production. By the court verdict he was found guilty of committing this crime, and his punishment that was agreed by the parties was the fine -four hundred non-taxable minimum of incomes of citizens (6800 UAH) from the confiscation to the incomes of the state real evidence (instruments of crime and produced coal)105. Regarding air pollution (Art. 241 of the CC) judge of the Chamber of criminal cases and cases of administrative offenses of the Court of Appeal of Donetsk region in the Mariupol city was issued the ruling on permission to the officials of the Main Department of the State Office on Labour in the Donetsk region to the unscheduled inspection on compliance with the law criteria concerning industrial safety at PJSC “Named by Illych the Metallurgical Plant of Mariupol”106. Also 21 court verdict on charges of illegal cutting of forests (Art. 246 of the CC) have been found.Thus in the most cases the perpetrators were bring to the responsibility for single cutting of trees

100 Letter of the Ministry of Defense of Ukraine from 10.11.2016 №266 / iz2628 101 Letter of the Main Department of the National Guard of Ukraine of 25.10.2016 №27/22/1-B-195-iz 102 Unified State Register of Court decisions [E-resource]. — Access mode:http://www.reyestr.court.gov.ua/ 103 Ruling of Dobropillya city district court of the Donetsk region of 23.09.2016 in the case 227/3712/16-к [E-resource]. — Access mode: http://www.reyestr.court.gov.ua/Review/61739450 104 Ruling of Dobropillya city district court of the Donetsk region of 23.09.2016 in the case 227/3711/16-к [E-resource]. — Access mode: http://www.reyestr.court.gov.ua/Review/61739434 105 Verdict of Popasnaya district court of Luhansk region of 25.06.2015 in the case №423/548/15-к E-resource]. — Access mode: http://www.reyestr.court.gov.ua/Review/46874766 106 Ruling of the judge of of the Chamber of criminal cases and cases of administrative offenses of the Court of Appeal of Donetsk region in the Mariupol city of 20.12.2016 in the case №263/14303/16-к [E-resource]. — Access mode :http://www.reyestr.court.gov.ua/Review/63531136

UHHRU 2017 43 On the edge of survival: extermination of the environment in the course of the armed conflict in the East of Ukraine

(often — in an amount from 2 to 9 trees). However, there were also facts of multiple crimes. Thus, an unemployed resident of Kramatorsk 03.09.2015, 06.09.2015, 09.07.2015, 09.09.2015, 10.09.2015, 28.09.2015 p. and 29.09. 2015 in a field protection zones in the quarter 56 of the SE “Slovyansky lishosp” illegal cutting of perennial plants in number of 133 trees107. It should be noted that courts usually had quite condescending attitude to criminals (slightly more than half of the offenders had the most le- nient punishment from stipulated by the sanction of this article — a fine of 50 non-taxable minimums of incomes of citizens). Only in the half the studied cases a civil claim was filed or caused damage was compensated by guilty person before the verdict. In other cases, civil claim either didn’t filed, or representatives of the victim during court hearings refused from their civil claim for compensation of material damage caused by crime. Database of the Unified State Register of Court decisions contains only one verdict regarding illegal hunting (Art. 248 of the CC), that was done on June 29, 2015 on the territory of the Svativsky common zoological reservation of local importance by a local resident108. For 2014 — 2016 years courts issued 24 conviction verdicts for illegal fishing or hunting or any other sea hunting industry (Art. 249 of the CC) — namely illegal fishing. However, only one of them was on crime committed in the Luhansk region. All other concerned commitment of this type of crime in the Donetsk region (city courts of Mariupol issued 16 verdicts, Novoazovsk District Court — 7, Constan- tynivka City District Court — 1). It is well-known that armed conflict is one of the most serious causes of deterioration and degradation of the natural environment. In this regard, in accordance with Principle 25 of the Rio Declaration (1992), the problems of peace, development and protection of the environment are considered as in- terdependent. In solving these problems, an important place is assigned to international organizations. Today, however, there is no active action from the European Environmental Protection Agency or UN organizations — UNESCO, UNEP, or other influential international structures. Problems that were high- lighted by the war in Ukraine indicate that to solve them as soon as possible it is strong need to involve international institutions and their accumulated experience in international legal regulation of environmental protection and environmental safety109

107 Verdict of Kramatorsk city court of Donetsk region of 19.01.2016 in the case № 234/19882/15-к[E-resource]. — Access mode:http://www.reyestr.court.gov.ua/Review/55083836 108 Verdict of Svatovo District court of Luhansk region. — Access mode:http://www.reyestr.court.gov.ua/Review/52793207. 109 Baluk H. I. Shompol O. A. National and international legal regulation of environmental issues and environmental security in armed conflicts. –// Administrative law and process. — 2015. — № 2 (12). – p. 142–158. — Acess mode: https://goo.gl/MwIomb.

44 UHHRU 2017 “PROTECTION OF THE NATURAL ENVIRONMENT DURING 4 ARMED CONFLICT”: RESULTS OF A MONITORING VISIT OF THE UKRAINIAN HELSINKI HUMAN RIGHTS UNION

4.1. General information on the survey The purpose of the visit: to provide analysis of the state of high-ranked objects of the natural reserve fund of Ukraine in the ATO zone. Place of conduction: Stanichno-Luhanskiy, Slovyanoserbskiy and Novoaydarskiy districts of the Luhansk region and Slovyanskiy district of the Donetsk region. Dates: 10-16 October 2016 Group members: • Oleksii Bida, coordinator of monitoring missions of the UHHRU; • Igor Zahorodniuk, Senior researcher of the National Museum of Natural History of the National Academy of Science of Ukraine; • Timur Korotkiy, Professor of School of International Law and International Relations of the National University “Odessa Law Academy”; • Victor Parkhomenko, an ecologist. Objective: to interview employees of ecology control bodies, in particular, departments of ecology and natural resources, the State Ecological Inspections of Lugansk and Donetsk regions. Analyze the state of high-ranked objects of the nature reserve fund of Luhansk and Donetsk regions, that suffered from hostilities. Methods: interviewing, questioning, observation, photo-fixation. Research tasks: During October 2016 a group of experts conducted an preparatory work, working meetings and research expeditions in the zone of armed conflict in the East of Ukraine. The group’s tasks included: 1) at the preparatory stage — research and analysis of information about potential and actual impacts of the armed conflict’s actors on natural systems and nature management in the conflict zone, planning of field researches, development of questionnaires and acts of examination of natural systems, especially protected areas; 2) during working meetings with experts — discussing and interviewing of specialists of reserves and national parks, Luhansk and Donetsk departments of Ecology and Luhansk Regional Environmental In- spectorate and the military (CIMIC) on state and violations of natural ecosystems and possibilities of their monitoring and evaluation of losses; 3) field research of territories from the eastern districts of the Luhansk region to the western districts of the Donetsk region, mainly among the Seversky Donets river, which is a boundary of the confrontation between the Armed Forces of Ukraine and IAG. There were examined the following objects: “Trohizben- skiy step”, “Svyati Hory” and “Cretaceous Flora”. There were collected new data on next high-ranked objects of the natural reserve fund — “Stanichno-Luhanskiy” NRF, RLP “Kleban-Bull”, RLP “Kramatorsk”. RLP “Slovyanskiy resort” and a number of reserves. 4) on the ground of analisys of OSINT there were collected data on NRF of the territory of Pryazovye and zones under the occupation: Provalskyy and Khomutovsky steppes, Meotida and a number of reserves; 5) there were developed a questionnaire and conducted interviews of local users of natural resources and staff of NRF and environmental services of Luhansk and Donetsk regions on problems of the nature management and environmental law violations (near 30 questions), the analysis of questionnaire’s data.

UHHRU 2017 45 On the edge of survival: extermination of the environment in the course of the armed conflict in the East of Ukraine

4.1. General information about protected areas in the conflict zone NRF of Luhansk region included 198 territories and objects of NRF with total area 93794,1762 hectares, including 12 territories and objects of national importance with the total area of 14127,7164 hectares and 186 territories and objects of local importance with the total area of 79666,4598 hectares. Currently on the territory controlled by Ukrainian authorities, there are 135 (68%) areas and objects of natural reserve fund of national and local importance with a total area 75186,4263 hectares (80%), including 11 areas and objects area of national importance — in total 13454,2164 hectares (95%) and 127 territories and objects of local importance — in total 61732,2099 hectares (77%). The percentage of protected areas in the region controlled by the Ukrainian government is 3.98%. The territory, which temporarily non-controlled by Ukrainian authorities, there are 68 territories and objects of the natural reserve fund of national and local importance, their total area is 18665.8599 hectares, including: - local importance — 67 territories and objects — in total — 17992.3599 hectares; - national importance: park-monument of landscape art of national importance “Hostra mohyla” (Luhansk). total area is 96.0 hectares, and the branch of the Luhansk nature reserve “Provalskyy step” (Sverdlovsk district) with a total area of 587.5 hectares. NRF of Donetsk region In the Donetsk region there are 117 objects of NRF, including 7 reserves and 10 natural monuments of national importance; 42 reserves, 20 natural monuments and 3 parks-monuments of landscape art of local importance; 12 reserve tracts. There were 6 regional landscape park :”Meotida”, “Donetskiy kryazh”, “Kleban-Bull,” “Kramatorskiy”, “Zuyevskiy”, “Slovyanskiy resort” on a total area of almost 29 thousand hectares. As a result of armed conflict in the territory which temporarily non- controlled by Ukrainian authorities there are currently 38 facilities with a total area of 30.673 thousand hectares, including 7.746 thousand hectares of Azov Sea’s aquato- rium. It include “Meotida” (area of 8,525.67 hectares), the park “Donetskiy kryazh” (7463.52 hectares), “Khomutovsky steppe” (1030.4 hectares), “Kalmiuskiy” (579.6 hectares), “Razdel'nyanskiy” (100 hectares), park “Zuyevsky” (1532.66 hectares), wetland of in- Pic. 13. Natural Reserves in the ATO zone (by: Vasilyuk, 2015). ternational importance “Kryvo - Source: tyzhden.ua/Travel/150006 koskyy lyman” (468.7 hectares).

46 UHHRU 2017 “Protection of the natural environment during armed conflict”: results of a monitoring visit of the Ukrainian Helsinki Human Rights Union

4.2. Protected areas in the ATO zone that controlled by Ukrainian authorities Research of the protection of NRF in the ATO zone that controlled by Ukrainian authorities, was carried out on the basis of: 1) survey of employees of protected (conservation), environmental, scientific, educational, hunting, forestry organizations and institutions in the form of interviews and questionnaires (with a specially conducted questionnaire — Annex A); 2) survey of local natural resources’s users (especially local residents who live near protected areas, well-known and little altered natural systems, forestry and hunting farm, fish farm, who regularly engaged or involved in such forms of nature using, like hunting, fishing, gathering mushrooms and berries, mowing, grazing, etc.) the form of interviews and questionnaires (with a specially designed questionnaire — appendix B); 3) direct examination of protected (conservation), environmental, scientific, educational, hunting, forestry organizations and institutions on the state of environmental protection in the area of armed conflict in the east of Ukraine (on specially designed forms — Annex C). Analysis and synthesis of the research’s results allowed to group objects and areas of natural reserve fund of Stanichno-Luhanskiy, Tryohizbenskiy districts of the Luhansk region and Slovyansk of the Donetsk region, depending on the overall level of violations caused as a result of military operations into the following groups: 1) areas with significant damage; 2) areas with moderate damage; 3) areas with minor damage.

Areas with significant damage as a result of the armed conflict Prydintsivska floodplain or the Stanichno-Luhanskiy branch of the Luhansk Reserve — one of the branches of Luhansk NRF — total area of 498.0 hectares. The group members during the monitoring visit were unable to provide a direct examination due to ban of visiting of these areas without the consent of the military. Therefore, the analysis was made on the base of the available data complex: review of the territory on distance, interview of staff members of the reserve and of service representatives of CIMIC. As a result, we could argue the next: Currently, the area is completely controlled by the Armed Forces of Ukraine (hereinafter — AFU). For reserve employees, including the director and two officers of the reserve that assigned to this department, access is not permit. However, according to the surveyed employees, it is not a direct prohibition, but informal recommendations not to visit the area (often military in the village, communicate with employees of the floodplain). Now military are living on the branch’s territory, and the area around them were mined. Military didn’t approve their action with the floodplain’s staff, there was no consultation or safety training by the military staff for the floodplain’s staff and there are no entries with records concerning instruction. From the information provided by the foresters and representatives of regional ecoinspection, floodplain staff were informed that there was a fire on the area over the 10 000 hectares in 2014 on the territory of Malinovske forestry that is surrounding area to the floodplain. There are reasonable grounds to believe that the fire destroyed protected areas as well, but there was no survey of the reserve. At present, there are no reliable data on the fauna or flora. However, the surrounding areas that are available for the analysis of fllodplain’s staff, don’t have any significant changes. During a tour excursion in the area of the reserve there were clearly observed low concentration of mole-rats and in general lack of any traces of large animals (ungulates, shrews, predators). During the survey the reserve’s staff members had reported that the reserve was robbed by armed men, 2 cars were stolen. Performing the duties of keeping of accounting of animals is not possible be-

UHHRU 2017 47 On the edge of survival: extermination of the environment in the course of the armed conflict in the East of Ukraine

cause the branch was mined, though military action on its territory was not performed (last time the accounting was carried out in December 2014). The area under the fire from separatists, and therefore even stay on the outskirts of the reserve is dangerous. Reserve’s staff also told that in 2014 the reserve’s vicinity was fired. Limits aren’t provided, that’s why mowing of a grass stopped (haymaking, grazing, capture). Limits on the The burnt wood near Stanitsa Lugansk. Similar fires have occurred in many ATO did not issued. As there no places. Photo by Victor Parkhomenko hunt for 2 years, there was a noticeable increase of the number or frequency of meetings with a lot of species of hunting animals (pheasant, fox, wild boar, hare, pheasant, roe, deer)110. For improvement of the situation it is necessary: 1) It should be established cooperation between the military and floodplain’s staff through CIMIC and provide at least a superficial examination of the Prydintsivska floodplain regarding fires, soil disturbances, the newly established network of roads, forest management etc. 2) it is necessary to make compulsory instruction to the staff of floodplain on safety (together with the military) and for military on needs on adherence to minimum impact on protected system. “Trohizbenskiy steppe” — the unit of Luhansk Nature Reserve of the National Academy of Sciences of Ukraine, total area of 3281.0 hectares. Territory of the protected area is situated in Slavyanoserbskiy and Novoaydarskiy districts of the Luhansk region, and occupies lands of the former Trohizbenskiy military shooting range. It is located north of the villageS Trohizbenka, Kryakovka of the Slavyanoserbskiy district. The biggest value of the created reserve division is psamophytic plains of the original vegetation that is adapted to existence in sandy soils and even moving sand dunes. The big value have groups of Dnieper feather grass — these communities are protected by the Green Book of Ukraine. This is one of the last large areas in Ukraine that preserved in pristine condition, without pine trees. Data from the responses of LuhEco to the request of Ministry of Environment in December 2014: there were steppe and forest fires that occurred as a result of the military actions. It were damaged around 150-170 hectares. There were arrival and transportation of heavy military transport and military equipment through the territory. Results of the survey of the expert group. In the territory of Trohizbenskiy steppe there were military actions — it was used actively both by illegal armed groups, and by the Ukrainian army. Thus, during the war in 2014 there were established firing positions. Furthermore, in 2015 it was used as a training polygon of AFU (there were conducted target shootings with mines and ATGMs). Consequently, the area densely covered with craters from exploding shells and mines; a large number of unexploded

110 This is in general a positive trend, although it should be noted that during the survey of the sites available for inspection (along the route of the road to Stanitsa), the group noted the extremely small density of traces of the presence of macrophages.

48 UHHRU 2017 “Protection of the natural environment during armed conflict”: results of a monitoring visit of the Ukrainian Helsinki Human Rights Union

аb c

On the territory of the natural reserve “Trehizbensky steppe”: breakouts from bursting of shells with initial stages of soil erosion development (a); crater with Canadian Zlynka bush, which is typical of all similar soil damage (b); Canadian Zlynka bush on the site of military heavy equipment deployment (c). Photo by Victor Parkhomenko mines, mines with wings, shells, chucks of ACS. According to estimates of staff and expert group in this region there are about 200 craters; throughout there are shrapnel and specific mutilated trees. Traces or evidence of direct usage of natural resources weren’t found. When performing route cal- culation111, it were found traces of animals such as ellobius, wild boars, steppe mouse. In all cases, the tracks were not numerous and their frequency was lower than in preliminary periods of visits to these sites by members of the expert group in 2009-2013.

On the broken areas of the reserve “Trehizbensky steppe”, which were subjected to shelling: cartridges from shells and mines (upper row), unbreakable shells (bottom row). Photo by Victor Parkhomenko and Igor Zagorodniuk

111 Observers follow the pre-selected direction and count all the animals and birds that within the accounting area are directly seen or been able to identify by other grounds)

UHHRU 2017 49 On the edge of survival: extermination of the environment in the course of the armed conflict in the East of Ukraine

In the each place of damage of soil experts found abundant thickets of number of alien plant species, including Erigeron Canadensis (Table 5). This plant was found, in particular, in most of the missiles from the shells (obviously, it is an important factor for it to violate the vegetation and soil cover and the link with better humidity conditions). The numerous violations of vegetation were detected — traces of transport and tree trunks that were “cut” by bullets and shells, as well as fire positions, equipped with thickets of shrubs. There were identified and examined the position of ACS, around which there are dozens of bullet cartridges from projectiles. Also there were found numerous of unexploded shells and mines that have been shoot in direction of the reserve and unused shells in a state that similar to the keeping in a storage. In the media were widespread an information in two days after the visit of the expert group that these areas were re-fired by “Grad” of illegal armed formations.

On the territory of the reserve “Trehizbensky steppe”. Undisturbed mines at the UAF shooting range in the area of the psamophytic steppe and forgotten military shells. Photo by Igor Zagorodniuk

Important further steps to control the situation are: 1) to provide information on the use of neighboring land reserve psamophytic steppr as a polygon (square, status, officially or not); 2) to request to authorities and military (via CIMIC) and fix it in “Chronicle of Nature” information on the number of shells issued at the landfill; 3) conduct demining of areas and neighborhoods of the reserve. 4) LuhEco must consider the possibility of expanding the boundaries of the reserve on east to the river Aydar at the ex- pense of the existing steppe areas and abandoned agrocenoses. “Cretaceous Flora” — Reserve, a branch of Ukrainian steppe natural reserve of National Academy of Science of Ukraine, that located on the right bank of the Seversky Donets river on the border of Li- manskiy and Slovyansk districts of Donetsk region between the villages Zakitne and Pyskunivka. This is the only area in Ukraine, where the natural forests of pine cretaceous are under protection112, forest communities in this department cover an area of 344 hectares, half of it falls on the pine cretaceous and half — oak woods. This place is unique in terms of botanic: there are plants that worldwide are planting only in Cretaceous detachment, are growing together with the mountain, coniferous and deciduous forests’s plantes113. It is included in the list of protected objects by the international fund UNESCO.

112 According to the Red Book of Ukraine (2009), Pinus cretacea — "The Eastern Black Sea species, distributed in the basin of the Don river. In Ukraine — along the banks of the Seversky Donets in the vicinity, near Bohorodivka and Lavrenevka villages of the Slavic district 113 Cretaceous flora (reserve): — Wikipedia, the free encyclopedia [Email. resource]. — Access mode :https://uk.wikipedia.org/wiki/Крейдяна_флора_(заповідник)

50 UHHRU 2017 “Protection of the natural environment during armed conflict”: results of a monitoring visit of the Ukrainian Helsinki Human Rights Union

Data from employees. Head of the Branch S.V. Limanskiy and six employees of the reserve reported in the survey the following. In the period from April to the end of July 2014 after the seizure of territory by illegal armed groups (IAG) the reserve was in the zone of active military actions since militants staged shooting points on the steppe’s part of the reserve near the Zakitne village. Shelling carried out from Zakitne village to Piskunivka village (mainly Ukrainian troops fired to IAG). In this case, both sides of the armed conflict were reliably known that protected areas are subject to state protection as specified in the all maps and territory was marked with standard signs “protected areas”. Thus, as a result of deliberate attacks, the use of the reserve by both sides of the conflict in war purposes there were created hundreds of craters of shells “Grad” and bombs with wings; near by the use of bombs on the flood meadows two craters left in sandy soils depth of 2 meters and a diameter of 8 m, and in the black soil depth of 1.5 m an APC was left, 190 pines were felled for arranging emplacements and shelters; in the area of 992 m2 soil cover depth of 30 cm was damaged by heavy military transport; there were dug 81 trenches and ditches. The area was mined by IAG, but in 2014 a demining was conducted. Large areas around the reserve still do not demined114. Employees were compiled acts on surveys and damage that caused to reserve by IAG (number of craters, dug trenches in the reserve, etc.) and certified them by the town council. During the survey, the expert group found that the reserve is densely covered with craters from exploding shells and mines. According to estimates of staff and expert group in this area there are more than 500 craters; fragments of wood and debris are everywhere; some information about craters are summarized in Table 5. The area is actively used by armed groups for various maneuvers and placing firing points, one of the heights are traces of burning APC with large fields of oil and soot stains. Trace or evidence of direct use of natural resources were not found. On the route calculation it were revealed traces of animals such as pheasants, mole rats, steppe mice, but there were no traces of ungulates (pigs, chamois, etc.) spiders is not marked on the route, not even traces of the web (araneus or arhiopa). In the each place of damage of soil experts found abundant thickets of number of alien plant species, including Erigeron canadensis. In the village near the bridge over Donets there were no traces of economic activity, houses are empty. The area near the bridge backwater includes several equipped sites in what traveling tourists are regularly come. Interviewed three local natural resources users told that the area near the reserve before military actions was used for hay, grazing, forestry. During the active phase of the armed conflict combatants shoot to wild animal, and cut down trees, dug trenches, destroyed a grass cover. They noted that ac- tivemilitary actions and laying of mines had negative impact on nature. In particular, because of the destruction of topsoil, vegetation, trees substantial growth of weeds in bows. They also noted the increasing number of foxes.

A general view of “Cretaceous Flora”. Photo by Victor Parkhomenko

114 One time employees of NRF had to call military men becacause they noted new craters that could be mined however, the expert group identified these "graves" as "engineering" structures "(kurgans) of a kurgans mouse (Mus spicilegus) — the spicify that employees have not been noticed before.

UHHRU 2017 51 On the edge of survival: extermination of the environment in the course of the armed conflict in the East of Ukraine

Specialists during the survey of “Cretaceous flora” on the site of the fire of Russian armored personnel carriers. Photo by Victor Parkhomenko

Traces of the breakdown of the “Grad” shells on the Cretaceous Mountain in the “Cretaceous Flora” Reserve. Photo by Victor Parkhomenko Important measures of organization of monitoring and defence could be: 1) “Cretaceous Flora” need to re-conduct geobotanic description (last done in 2009), which will identify and analyze the impact of the military actions on vegetation; 2) conduct final act of a full examination on the territory on mines and obtain an act on security of monitoring researches in cooperation with CIMIC. Reserves of the Stanichno-Luhanskiy district. The district around the strip Prydintsiv'ya from branch of the reserve “Stanichno-Luhanskiy” to the Derkul river (state border of Ukraine) there is a web of reserves of local importance, which has undergone of significant negative impacts, as was along the lines of conflict.

52 UHHRU 2017 “Protection of the natural environment during armed conflict”: results of a monitoring visit of the Ukrainian Helsinki Human Rights Union

On the questionnaire, which filled in LuhEko it is aware that the local reserves of the Stanichno- Luhanskiy district of Luhansk region — namely ichthyological “Derkulskyy”, landscape “Shariv Kut”,general zoological “Kondrashivskiy”, reserved tract “Pischane”, ichthyological “Donetskiy” had damage to forests and steppesin the level from 50 to 100%. These data were obtained by visual inspection without a detailed assessment as soon as the latter is dangerous because of war. In particular, the present data, provided at the request of the Ministry of Environment in Decem- ber 2014: - “Derkulskiy” — ihtiology reserve of local importance, which has a ribbon type of area — along the channel of Derkul river. It covers the river and strip of land behind the channel (forest plantations) in the right (Ukrainian) coast. It includes to the SE “Stanichno-Luhanske SFME”. As protected areas of local importance, it has no security service. There was registered a damage of a forest fire, which occurred as a result of military actions in the ATO zone. The area of the damaged area -4.1 hectares; the extent of damage — 100%; -”Shariv Kut” — landscape reserve of the local importance, that situated between two rivers — Seversky Donets and Derkul — on an area of 732 hectares. It includes backwater with lakes, oxbows and wetlands, upland terrace with a characteristic landscape of animal-plant systems. It includes to the SE “Stanichno- Luhanske SFME”. There was registered a damage of a forest fire, which occurred as a result of military actions in the ATO zone. The area of the damaged area -2 hectares; the extent of damage — 100%; - “Pischane” — reserved tract of a total area of 98.0 hectares. It includes valuable highlyproductive pine plantations at the age of 80 years on sandy soils unproductive of other upland terraces of the Sev- ersky Donets river. It includes to the SE “Stanichno-Luhanske SFME”. There was registered a damage of a forest fire, which occurred as a result of military actions in the ATO zone. The area of the damaged area -72,6 hectares; the extent of damage — 50%.

Areas with moderate damage as a result of the armed conflict National Park “Svyati Hory” is located in the north of Donetsk region on the banks of the Seversky Donets. The area suffered a little, but for the second year in the recreational area there are military camps, which, according to local residents actively using natural resources (cutting of trees for firewood, hunting of wild animals, etc.). Around military locations around the perimeter of their camps are minefields, on which employees of the NPP learn by accident. Through a questioning of the staf of the Park “Svyati Hory” is set as follows. In the National Park in 2014 there were military actions, so the area was mined. At the time it almost demined. However, some parts of the NPP remain mined and can not be examined on the establishment of damage. At the end of June 2014 in the territory of the Yampolsky Forestry of the Krasnolymanskiy forest entity there were a lot of military actions, as a result, according to reports of forestries, 1060 hectares of forest were damaged by fire grassroots. In addition, due to the explosion of shells there were formed craters, damaged trees by shrapnel. Military actions have adversely affected to the nature of the NPP, birds from Red Book have disappeared — gray crane and the white-tailed eagle (5 couples) after flying airplanes and helicopters on their nesting places on a small height. There are increased numbers of boars, foxes. In 2014, local residents did not go through the forest because of “anchor rope” After the active phase of the conflict and demining, in the last two years people are constantly walking in the forest (but in 2016 3-4 persons have died while collecting mushrooms, in 2014 one forester had died). Units of the Armed Forces, which are currently located on the outskirts of NPP are the constant factor of anxiety for animals. In the vicinity of NPP locals cut down the forest and developing a poaching.

UHHRU 2017 53 On the edge of survival: extermination of the environment in the course of the armed conflict in the East of Ukraine

Nature Park “Svyati Hory” also suffered from military actions that took place in other areas of ATO. Thus, in 2014 military actions near Slovyansk led to a significant number of IDPs that situated on the territory of the NPP, and so far it is not been investigated whether natural habitats been subjected damage because of it, and if so- that level. Also in this period a migration of ungulates (including the boar) from Slovyansk was fixed115. There are necessary steps for improving of a situation: 1) to establish contacts between local residents and employees of the NPP and One of the sites of the NPP “Holy Mountains”. Photo by Victor Parkhomenko military of AFU to inform the latter that they are on the territory of protected areas; discuss the choices available to accommodate the forces of the Armed Forces on other parts that are not part of the protected areas; 2) to inform the military of serious damage that caused by flying airplanes and helicopters on a small height on avifauna; 3) to carry out a thorough examination of NPP regarding demining and the establishment of a detailed assessment of the damage from military action. Preserves of Popasnaja district, Luhansk region. Based on information that transmitted to expert group from LuhEco we can argue about the three reserves of local importance that located within land of permanent use of the state enterprise “Severodonetsk Forest Hunting Range” that suffered as a result of armed conflict, damage in 30 — 35%. In particular, during questioning LuhEco’s staff indicated that as a result of military actions in the 2014-2015 damaged reserves landscape “Novozvanivskiy” “Bor- sucha beam”, forest “Horihivska dybrova” (association of meadow and steppe areas, forests and gullies and areas of forb and herb-fescue steppe). In their territory there were maneuvers of equipment, fire, explosions, mine fields andanchor ropes, location of places for fire. The degree of damage to areas protected areas — 30-35%. Data were obtained through visual observation as a more detailed assessment is dangerous. It is likely that the military did not know about the existence of these protected areas. In a reference that prepared in December 2014 at the request of the Ministry of Environment, also says on these reserves: 1) landscape reserve of local importance “Novozvanivskiy”, area of 209.8 hectares, is located between the Popasna and Troitske village which represents the area of man-made forests in the treeless terrain and combines forest, meadow and steppe vegetation, executes antierosion functions. At that time this territory was in the zone of military actions. The area of the damage of the object — 209.8 hectares, the extent of damage -35%; 2) landscape reserve of local importance “Borsucha beam” — area of 134.6715 hectares located to the east of the Novozvanivka village with high slopes, gullies, sometimes covered with forest. There are limestone and sandstone rocks. It contains gorge and forested areas of forb-grass steppe. In 2014 this territory was in the zone of military actions. The area of the damage of the object — - 134.6715 hectares; the extent of damage — 30%; 3) forest reserve of

115 Before the military confrontation in the Park were single pigs, however, since 2014, there are dozens of them, that obviously exceeds the ecological capacity of the protected ecosystems of the Park. Their activity is very noticeable, in particular in the area of ecoway, which has lost its attractiveness due to this.

54 UHHRU 2017 “Protection of the natural environment during armed conflict”: results of a monitoring visit of the Ukrainian Helsinki Human Rights Union local importance “Horihivska dybrova” area of 351.7 hectares, located northwest of the Horikhove village, this territory was in the zone of military actions. It is a separate tract of forest gullies type where forests grow, both natural and artificial, its age — 60-120 years. The composition is a combination of forest, meadow and steppe vegetation. The area of the damage of the object -351,7 hectares, the degree of damage — 30%. Protected areas in the vicinity of Slovyansk of the Donetsk region. There is evidence of two natural protected areas that suffered from military actions. Regional Landscape Park “Slovyansk resort” — an area of 431.31 hectares, which includes such protected areas as hydrological natural monuments of national importance “Lake Slipne” and “Lake Ripne” and ornithological reserveof local importance “Pryozerniy”, covers backwater near Donets near Slovyansk and includes high-value water and swamp land. In 2014 there were military actions. Local experts indicate that because of the constant factor of disturbance (fighting and flying of helicopters) numerous waterfowl gone from these places, including missing long-legged sandpipers and small terns (data require some clarification, but local experts believe that that is truth). Botanical reserve of the local importance “Pryshyb” area of 107.4 hectares located in the Slovyansk district of the Donetsk region, north of the village Pryshyb: an airplane AN-30 fell to the steppe beam.

Protected areas with minor damage This is mainly area away from the combat zone. Protected areas of Kreminna Luhansk region In tabular dataof Lugansk Department of the Environment for the Ministry of Environment stated that several low-ranked areas located in Kreminsky area. Iin December 2014 three areas could have been covered by the conflict zone, but they were declared as protected only afterwards, in 2015-2016: 1) Protected tract “Hryaschuvaha” (14.9 hectares); 2) Protected tract “Shyroke” ( 96.0 hectares); 3) Zo- ological reserve “Zherebets” (area of 55.0 hectares)116.

Protected areas of Donets region with relatively minor damage Regional Landscape Park (RLP) “Kleban-bull” — area of 1974 hectares on the territory of the Con- stantinovka district of Donetsk region, located on both banks of the Kryviy Torets river and Klebann-Bull reservoir. According to respondents that were questioned during the monitoring visit, there were no direct military actions on the territory of RLP, but a destruction of natural systems is going on, including the woodstands, not only by locals, but also by employees, under a “fog of war “. In 2014 the area was mined, but in 2015 demined. RLP “Kramatorskiy” of Donetsk region is one of the youngest parks in the Donetsk region. In a survey of several different specialists it had found the following. Although the park are a considerable area (1,738.82 hectares), but it was not affected by the military actions, only around Ukrainian forces dug trenches in 2014, but inspectors of the RLP had a conversation with them and NRF area was not damaged. Number of hunting animals (number of deers and wild boars was 2-3 times higher, pheasant — in 3-4 times higher) was increased; an amount of hares stay low. From 2014 to the end of 2016 it was opened 7 criminal cases, particularly in connection with illegal logging of a forestry. Communication with local people are good and people adjusted to help protect the RLP. Military engineers contacted with locals and offered to demine the territory, but there were found no mines in the RLP for the entire period ATO.

116 The territory of this sanctuary, especially its floodplain lakes, was previously the center of the existence of Khokhly (Des- mana moschata) — the most ancient (in geological dimension) species of mammals in the modern fauna of Europe, which in Ukraine was known only from here.

UHHRU 2017 55 On the edge of survival: extermination of the environment in the course of the armed conflict in the East of Ukraine

During the analisys of other open source we had the information that RLP “Kramatorskiy” on 100 hectares unidentified persons carried out agricultural work, as result of that the state suffered damage amounting to almost one million of gryvna. Moreover, given an information that a large area damaged because of fortifications NFP117. Important further steps are 1) as a new organization’s project is not approved, and on the park has old Provision (on the subordination of Department of Environmental Management) are the need to change the Provision; 2) to identify and to fix the exact type and amount of damage of the PZT.

4.3. Protected areas in occupied zone Our research in this part relies on the following sources: - document”Information on the status of territories and objects of nature reserve fund of local and national importance located in temporarily uncontrolled territory in the Luhansk region” (answer of Luhansk Regional Department of the Environment at the request of the Ministry of Environment that prepared in December 2014); - information from colleagues who visited these areas during the 2014-2016 years; - questioning of former employees of NRF institutions and scientists; information from public sources. Natural Reserves “Provalskiy steppe” — Department of Luhansk Nature Reserve, located near the Provalskiy village of Dovzhansky region. It consists of two sections (tracts): Kalynivskiy (299.61 hectares) and Hrushevskyi (287.89 hectares). It is currently in uncontrolled part of Luhansk region. According to Wikipedia ecosystem of Proval- skiy steppe almost destroyed during the Russian military aggression against Ukraine (2014-2016)118. Information from the LPR’s staff (for reasons of security their personal data is not shown). Reserve object is old (founded in 1975) and locals well-known that the area is protected. This protected areas had visited twice in 2015 by our colleague from LPR, who stated that the area was left without staffing, including security, but locals do not take it, so reserve located in well-preserved condition. There were no military actions. In route accounting of fauna it has noted noted that there are many wild pigs are jerboa, locals are tending their cattle. In Kalinovskiy are apreserved all barriers, but one shell of “Grad” fell down. Department of Environment Luhansk RSA informed the Ministry of the Environment that branch “ProvalskIy stepp”- area of 587.5 hectares — located in the territory which temporarily non-controlled by Ukrainian authorities. The same was reported to the NAS of Ukraine, under the jurisdiction of which the LPR is located. Information from LuhEco: Ministry of Environment has the following information about the damage of Provalskiy branch of LPR: 1) Hrushivskiy area — prairie and forest fires that occurred as a result of military actions (damaged pteridophytic herb-fescue-grass and shrub steppe and ravine forests in ravines ). Damaged 287.89 hectares (100% of the area). The act was drawn up. 2) Hrushivskiy plot: arrival and travel through area of heavy machines. Damaged areas pteridophytic herb-fescue-grass and shrub steppe gullies and forests in ravines. An area damage is unknown. Visual inspection without detailed assessment. 3) Kalinovskiy plot: as a result of military actions there were shelling of the territory. Damaged areas pteridophytic herb-fescue-grass and shrub steppe gullies and forests in ravines. Affected area — 10 square meters. An act and mapped schemes were drawn. Next important steps are: 1) management of LPR and LuhEco should raise questions on status of “Provalskiy steppe” which remains in the zone of occupation and can not be controlled by the guard

117 War and the environment: Reserves in the ATO zone [El. resource]. — Access mode : https://goo.gl/V050yz 118 Provalskiy steppe (reserve) Wikipedia, the free encyclopedia [E. resource]. — Access mode: https://uk.wikipedia.org/wiki/Провальський_степ_(заповідник)

56 UHHRU 2017 “Protection of the natural environment during armed conflict”: results of a monitoring visit of the Ukrainian Helsinki Human Rights Union and scientists of the Lugansk Reserve; 2) conduct by analyzing all available methods by OSINT a survey all places of “Provalskiy steppe” that located on the uncontrolled territories to with the purpose of assess the damage. “Khomutovskiy steppe” — department of Ukrainian steppe natural reserve. It is located Boykivskyi (Telmanivkiy) district of Donetsk region in occupied area. Area — 1030.4 hectares. Details are very limited. The Reserve significantly affected by the attacks and movement of techniques. National Park “Meotida”: part of the park (near Kryva Kosa) is located on uncontrolled part of the Donetsk region, in the area of occupation. There is information that “a half had plowed “ but if it was made by military equipment, or was due to shelling or during deployment there IAF whether it was plowed under agricultural crops — it is unknown. Regarding this it is important to raise the issue (before the regional authorities and the Ministry for Environmental Protection) regarding the status of the sites that were in the occupation zone and to conduct a survey of these sites in order to assess the damage caused by analyzing all available sources, including through OSINT. Natural reserves and RLP Protected areas within Lutuhyne distict of Luhansk region. The district includes such facilities and areas of natural reserve fund of Ukraine: geological monument of nature “Menchikurivskyy rozriz”; geological monument of nature “Balka Dovga”; geological monument of nature “Balka Bezymenna”; geological monument of nature “Balka Kryvenkiy Yar”; geological monument of nature “Yurevskaya”; general zoological reserve “Illyriyskiy”; botanical nature monument “Balka Ploska”; botanical nature monument “Znamenskii Yar”; botanical reserve “Lesnaya”; Landscape reserve “Pershozvanivskyy”119. Military actions were occurred on steppe areas and near water objects that were previously used for grazing of livestock. Currently found out that there are military polygons, where there are NFP. Also the military actions took place near the villages Pisne, Uspyenka, Yurivka, Iliriya. This area is important in strategic terms — in 2014 was an attempt to deoccupy Luhansk throw it; it is now occupied by separatists. This area is intentionally damages by local people and separatists. Overall, the entire region suffered the destruction of the IAF (data from questionnaires that received from the expert group LuhECo in autumn 2016). Regional Landscape Park (RLP) “Donetskiy kryazh” in the area of almost 10,000 thousand hectares, located in the Shakhtarkiy and Amvrosievsky districts of Donetsk region, bounded by the floodplain of Krynka river with tributaries and asphalt road through the villages Petryvske- Hryhorivka — Krynychky. RLP “Donetskiy kryazh” contains Saur-mohyla — the highest point of the Kryazh, where fierce fightings took place; one of the biggest military operations took place here. Ecologist Catherine Norenko and her colleagues counted the number of craters from explosions of ammunition of big caliber in the area of Saur-mohyla on the basis of photos from space — it had found more than 16 thousand of craters with a diameter from 1 m to 12 m. Almost the entire territory of the park (over 3 thousand hectares) was destroyed by fire during the fighting120

4.4. Factors affecting the ecosystem and biota The following factors that created or provoked by military actions and affect the state of natural complexes or individual populations and communities. Most factors have complex effects and their division into groups is made only by the criterion of the overwhelming role. For example, explosions

119 Lutugynskiy district Wikipedia, the free encyclopedia [E. resource]. — Access mode: https://uk.wikipedia.org/wiki/Луту- гинський_район 120 The fate of the reserve [Email. resource]. — Access mode: http://www.lesovod.org.ua/node/27224

UHHRU 2017 57 On the edge of survival: extermination of the environment in the course of the armed conflict in the East of Ukraine are factor of destruction of vegetation and soil, destruction and fearing of animals and provoking fires and erosion. Factors damaging vegetation and soil The explosions of shells ( “Grad”, “Tornado”, mines, anchor ropes etc.) — the most influential factor. He has a number of effects: a) due to the formation of craters soil and vegetation are collapsing (in one case there was an erosion) and growing invasive species (zlynka Canadian, ragweed and burdock, etc.). b) fire — even after the fire, unlike explosions in areas native plants mostly restored. But very large areas suffer, throughout June and September 2014 in the ATO zone was recorded in 2901 cases of fire (Vasylyuk, 2014); c) the breaking of trees by anchor ropes and because of shelling121; d) the individual components should be noted use by IAF phosphorus bombs, which although is forbidden, but still used. As an impact on nature should be noted detrimental effect on the soil.

The burnt wood from a fire caused by the “Grad”; Pine, destroyed by the debris “Gradu”, in the reserve “Triizibensky steppe”. Photo by Victor Parkhomenko

Steppes and forests overgrown by shrubs and populations of hunting species are increasing (fox, wild boar, roe deer, pheasants) by reducing of a human impact (mined forest and meadows does not allow people to walk, mow the grass, etc.)122. However, there are a problem of preserving steppe (overgrown by shrubs) and issue of rabies (number of foxes increased in 8 times — up to 8 persons. / 1000 hectares). However, probably reducing the underground animals (data of I.Zagorodniuk). The latter fact requires special attention and further research, since it can be an indicator of the intensity of combat operations (similar observed in the vicinity of the “Stone Graves” Reserve: V. Sirenko, personal information). Factors of disturbance and fearing 1) Animals are fearing because of noise — helicopters, explosions of shells, heavy machinery have considerable “noise” influence on nature. For example, in the Park “Svyati Hory” gray crane and the white- tailed eagle had stopped to nest. That is, there are sensitive species that cease nest, and their place is occupied by alien species that are characteristic of disturbed ecosystems (eg, storks). Izssavtsiv prevalent

121 For more information on soil contamination, see: Balyuk, Shompol, 2015. 122 However, exact numbers regarding the number of hunting animals can not be inferred — records with records for previous years have remained in the relevant offices of former regional centers; hunting statistics are not going to be done at all.

58 UHHRU 2017 “Protection of the natural environment during armed conflict”: results of a monitoring visit of the Ukrainian Helsinki Human Rights Union jackal, moreover, that he has many favorable conditions (overgrown former pastures and meadows, frequent loss of wildlife and humans). 2) As a result of reducing the number of vitality and traffic on auto routes decreased the number killed on the roads of animals. Such a factor is generally positive (in the “norm” on roads, up to 5 individuals of different types of vertebrates are killed at 100 km per day), but it overlaps with the accidental death of animals from the effects of other factors. 3) The loss of animals from mines and anchor ropes. While mining areas maps created not in all cases. The separatists mined even protected areas (“Cretaceous Flora” Stanichno-Luhanskiy Reserve, Kon- drashivskiy reserve et others). Boars stumbled upon anchor ropes at Svy- The helicopter over the “Cretaceous Flora” Reserve as a factor atohirsk (data of S. Lymansky; a lot in the disturbance of the fauna, including breeding birds. of reports in the media about other Photo by Victor Parkhomenko areas in the ATO zone). 4) explosions and other factors of intense military actions causing mass migration of animals. As example, during fighting in Slovyansk in May 2014 it had noted 20 boars near Svyatohirsk (data of locals and scientists from “Svyati Hory”). The transformation of the landscape and physical contamination 1) Contamination of natural areas by rubbles, shrapnel, chemicals (impact on groundwater animals, plants). This is a significant threat to burrowing animals ((wild pigs, blinders and slippers, mouse rodents, a large number of insects and other invertebrates that live in burrows or in the soil layer). 2) Construction of military units- one of the characteristic features of positional military conflicts is the digging of trenches and the creation of other fortification structures, which leads to the destruction of the upper layer of soil, including the displacement of heavy machinery, the effects of fuel emissions and oil leaks (which can be measured in tonnes for each big military base). 3) destroyed equipment leaves a significant amount of pollutants in the soil. Because fire of APCs in “Cretaceous Flora”, two years later the plant cover at the 10x5 meter plot had a recovery rate of 20%. Still, there were stains from combustion of fuel liquids APC, in which vegetation was restored only by 10-15%. In addition, fragments of technology create new elements of the environment, which are favorable for a number of alien species, which are favorable for a number of alien species, which create problems unique local biota. The same applies to any other debris of technology, parts of ammunition and ammunition, their packages, etc. 4) The formation of garbage dumps in craters and in the places of military actions- people have no place to throw garbage, because garbage dumps in the distance from settlements are dangerous to visit.

UHHRU 2017 59 On the edge of survival: extermination of the environment in the course of the armed conflict in the East of Ukraine

In addition, all of the old (pre-war time) landfills are not actually used either because of remoteness from settlements and the inability of residents to provide such transport costs, either because of the risk of falling into shelling or on exposed “stretch marks” and minefields. Be- cause of this, in fact all dumps are formed around dumps. Analysis of impacts on vegetation and soil cover Restoring soil after the bombings (120 mm shells, 80 mm and aviabombs) (according to the observa- A fragment of the Russian BTR that burned up at one of the highest points tions provided by S. Limanskiy): in the “Cretaceous Flora” Reserve. Photo by Victor Parkhomenko 1) sandy (diameter from 1,5-1 m from 120 mm shells, depth — maximum 0.5 m), 80 mm — less then 2-3 times for the above indicators. Avi- abombs — diameter of of craters of 8 m, depth of 2 m. Period of restoration — 5-7 years, craters of bombs used by locals for garbage dumps. In one case on the reserve “Trozihben- skyy Steppe” marked the formation processes of erosion in craters from 120 mm shell. Also, in this area, 10% of the craters from 120 mm shells are not overgrown in the second year after the fire, so the time for their recovery may be more than 7 years 2) black soil — 80-120 mm A garbage dump on the site of a rupture of an air bomb shells form craters with a diameter on the outskirts of the village. Wound near the “Cretaceous Flora” Reserve of 0.5-1 m, depth up to 30-40 cm. Craters from air bombs — up to 2 m in diameter, up to 1 m deep. The black soil has the smallest index of damage and is fastest recovered (Table 5). It has been viewed five craters, it is noted that due to the developed root system, the ground pulls out the pieces together with the plants that are quickly restored. During the recovery, more than 70% are native plants, dominated by invasive species zlynka Canadian (Erigeron canadensis), burdock (Arctium lappa), and according to Mr Limanskiy — stramonium (Datura sp.). It needs about three years for overgrowth, but alien species grown faster than natives, that’s why it’s need of necessary special measures for the restoration of aboriginal vegetation; 3) clay — damage from shells has a slight depth and area — (for example, from the 120 mm shells there are craters of diameter up to 1 m and a depth of 0,3-0,5 m are formed). Overgrown slowly. Restor- ing could lasts 5-7 years.

60 UHHRU 2017 “Protection of the natural environment during armed conflict”: results of a monitoring visit of the Ukrainian Helsinki Human Rights Union

Table 5 Percentage of the domination of certain types of plants in the germs and the dynamics of vegetation restoration Type of soil Type of plant Sandy Black soil Clays Merhel Cretaceous slopes Canadian Zlynka (Erigeron canadensis) — in a single funnel grow * plants, 80-90% up to 50% up to 50% 70-80% up to 10% each year increasing numbers of it Burdock (Arctium lappa) 0% 1 funnel — — — one case — that’s why is no data Datura (Datura sp.) — by Limanskiy — — — Message from S.V. Limanskiy Aboriginal plants more than 20% small 10-20% up to 10% replaced by invasive species 50% 5-10 years The expected recovery period 5-7 years 2-3 years 5-10 years 5-10 years (and more) The percentage of plants covering the 10-30% to 100% 10-20% 10-20% to 10% crater two years after military actions * Regarding zlynka — 80-90% craters takes in sandy soils. In 20% of craters are also native species of plants. In individual cases, craters were not overgrown (to 10%, but only on sandy soils), and there is 1 case of erosion processes. Craters of aviabombs are sometimes used as a local garbage dumps( Example: in a neighborhood of Zakitne village of the Donetsk region).

4) merhel — has a fairly significant damage from 120 mm shells — the crater’s depth of 1.5 m and a diameter of 3 m. From 80 mm shells 2-3 times smaller, but from the air bombs craters is not found, but they are, according to our estimates, can be 1.5 times larger than on sandy soils. Restoration of vegetation here is one of the lowest and can reach 5-10 years 5) monolithic chalk — despite the lowest damage from shells (from 120 mm shells there are craters up to 20 cm in diameter and up to 0.5 m in diameter), the restoration of aboriginal plants (hyssop and thyme are dominated) at such sites is the longest and reaches 10 years or more. Deciduous trees and forest bogs. According to colleagues from Luhansk ecological inspection, this is one of the most urgent problems. Lugansk region belongs to the steppe zone, due to which one of the lowest levels of forestry in Ukraine is about 7%. The deterioration of forest conditions in the Luhansk region in the ATO zone today is one of the largest environmental problems in the region. The damage to the forest areas in the zone of conflict is extremely difficult to determine, but it is need to say that they have become extremely high, especially in the territories and objects of the nature reserve fund. So, forest plantations of the Stanichno- Luganskiy and Novoyadsky districts suffered greatly. In 2014, as a result of the occupation of part of the territory of Luhansk Oblast, out of 11 forestry farms out of state control 3, such as: Sverdlovsk, Ivanovo and Luhansk. Destruction of trees greatly increases the risk of floods and floods; accordingly, the quality of soil fertility deteriorates. In addition, the destruction of forests results in the reduction of biodiversity, the destruction of habitats of rare species of flora and fauna, the destruction of valuable natural ecosystems and the negative impact on the climate of the region. In connection with cases of detection of mass violations of forest protection legislation and in order to prevent illegal logging in the forests of the Luhansk region and prompt response, the LugEco, starting from 2015, has intensified measures of state control over the prevention of illegal logging and other vi-

UHHRU 2017 61 On the edge of survival: extermination of the environment in the course of the armed conflict in the East of Ukraine olations of the environmental protection law. Thus, according to the inspections carried out by the des- ignated authority, during 2015-2016, five criminal proceedings were opened on the facts of unauthorized felling of trees. The LuhEco in 2016 on the basis of the survey of the territory of the ichthyologic order of local significance “Aidarsky” established the fact of illegal logging by unidentified persons of 19 tropical trees to the degree of growth cessation. The damage was UAH 126 167. Materials sent to law enforcement agencies. According to the indicated fact of the Novopskovsky police unit in Lugansk region, criminal proceedings have been initiated under Art. 246 of the Criminal Code of Ukraine. Systemic factors affecting the changes in nature: 1) Stops of factories, mines and industry, although it generally has a positive environmental impact, because it significantly reduces theantropogenic pressure with natural systems, but concerning mines there is a problem — they are flooded with water and the effects are negative that well described in the literature. 2) Uncontrolled industrial activity, according to the current regulatory framework there is moratorium on inspection by bodies and officials authorized by law to provide state supervision (control) of economic activity123. In accordance, no environmental monitoring of working entities (eg, in Severodonetsk works asphalt plant and “Azot”, Rubizhansky factory “Zorya” forestry, natural persons). It is therefore necessary to make a clarification to the law, that entity can not check anyone except LuhEco and DonEco and related environmental inspections. 3) Cardinal changes of the habits of local residents, as a result of mining the forests and meadows people were forced to kill cows, stop fishing, picking berries and mushrooms, hunting, etc., for providing families (for searching protein food and firewood): fishing, capturing wild animals with traps and snakes, etc. The destruction of forest belts (including inter-field and along roads) has become considerable scale, which locals or military and militants (including from checkpoints) are cut down to fuel but “quiet poaching” has decreased. Massive felling and eradication of field-protecting forest belts (FFB), lack of control and inappropriate use of them, especially in the Stanychno-Luganskiy, Novoyadarsky and Popasyanskiy districts located on the line of delimitation of ATO, as well as in the Starobelskiy and Novopskovsky districts of the Luhansk region — all this in the near future may to turn into ecological danger for the region.'

Несанкціонована рубка дерев на території Новопсковського району невстановленими особами (фото з Луганської обласної екоінспекції)

123 The Law of Ukraine "On temporary measures for the period of the anti-terrorist operation" from 02.09.2014 # 1669-VII [E. resource]. — Access mode: http://zakon4.rada.gov.ua/laws/show/1669-18

62 UHHRU 2017 “Protection of the natural environment during armed conflict”: results of a monitoring visit of the Ukrainian Helsinki Human Rights Union

Since, according to their influence and economic significance, FFB plants belong to forest plantations, that is, they are located on agricultural lands in a defined ecosystem, they are one of the powerful long-term factors of increasing the productivity of agricultural crops due to improvement of microclimatic conditions, changes in the hydrological regime and counteraction to soil erosion. Today, FFB have become a place for the unauthorized dumping of garbage, suffering from burning stubble on the adjacent fields. There are no steps in the direction of restoring forest bands provided by entitites. At present, it is almost impossible to solve the problem of the legal regime of field protection, since the question of the content and use of FFB is not regulated at the legislative level. Agrarians of the Luhansk region are also very concerned about the legitimacy of sanitary felling in the FFB, because according to the Association of Farmers and the Agrarian Union of Lugansk Oblast, FFBs grow on leased agricultural land, which leads to shading the land and, as a consequence, to reduce the yield. The state does not interfere with the process of sanitary clearing of forest belts, tree branches sawing, and balance-holders of FFB are absent. Therefore, agrarians, unable to legally harvest trees, have to be unauthorized for conducting dilu- tion of the forest and to satiate the branches of the trees in order to preserve their own harvest. Thus, the long absence of the owner in the FFB turned into a critical issue of a state scale, the solution of which is possible only when transferring FFB to balance-holders, which would be responsible for the protection, protection, use and reproduction of FFB, and development state of the maintenance and use of FFB. 4) Illegal extraction of minerals (including coal, sand, mergel). It was also a significant factor before the war, but its significance increased, as it became one of the bases of the local economy. 5) Ignoring of conservation of NFP by IAF or AFU — in the vast majority of cases (partially described above) the arrangement of places of deployment of military units, camps and fire positions is carried out with complete neglect of not only the fact of being in reserve the territories (often with existing settlements), but also the provision of such dislocations of benefits (eg, the placement of the military in the Re- serve “Pridintsivska floodplain” or NPP “Svyati Hory”, the creation of firing grounds in the “Trehizbensky steppe” reserve, trenches in the “Cretaceous flora” reserve, destruction on protected areas of trees for own needs and in order to create comfortable conditions of stay ‘or construction of fortifications124, capture or simply destruction of wild animals, etc. Also the case of plowing for agricultural needs of land from the warehouse in the “Meotida” National Park is well-known. Ways of reducing or preventing the factors One of the important tasks for the successful conduct of further monitoring is to develop a classifier of factors of impacts. The basis of this classifier system can be a description of risk factors adopted by the International Union for Conservation of Nature and Natural Resources (12 groups of factors due to “Threats Classification Scheme”125). On the basis of such a system it could be described influences caused by military actions and changes in local wildlife, both at the level of ecosystems and the livelihoods of populations of some highly rare and economically important species for which there are (or were before the conflict) programs of monitoring and maintaining populations. It should be recommended for scientific public institutions include a study: “Monitoring ecosystems as a result of ATO.” In the circumstances of war these topics are more important, therefore, they deserve state support in the first turn, and other themes could be supported by extrabudgetary financing. Unfor- tunately, this idea is hardly developing at this time, although the results of the expert group research and the analysis of current publications show its extraordinary importance. It is important to note that in

124 Details of such cases are described in Unit 2. 125 Threats Classification Scheme (Version 3.2) // IUCN — https://goo.gl/6NtT1p.

UHHRU 2017 63 On the edge of survival: extermination of the environment in the course of the armed conflict in the East of Ukraine many war spots in the world, such studies have been conducted and conducting, as environmental changes caused by military actions (in the broad sense) are an important material for forecasting changes in ecosystems126. Similar generalizations are made for the countries of Europe, Asia and Africa. It is also extremely important to ensure the functioning of reserves in conditions of armed conflict. Unfortunately, the reserves located in or near the ATO zone have unchanged and very low funding; monitoring programs have not been reviewed for a long time, and all this activity is conducted on the same basis (and with the same requirements) as the management, protection and research in reserves that are situated far away from the conflict zone. No changes in the activities of such institutions since the start of the ATO have been proposed and implemented, which is not normal. It is worth changing the funding of reserves located in the ATO zone and whose employees work there. It is also important to ensure, first of all, that they are provided with means of remote control, protection and monitoring, including drons, phototrapes, night vision devices, light carriage, GPS, webcams for continuous monitoring and appropriate office equipment, etc. It is also necessary to carry out the appropriate master classes and set-up courses for work in such conditions and with such technical support.

4.5. Analysis of the work of control services Working of facilities of ecosystems’s control and interactions bodies The interest from central government agencies to environmental problems in the region is minimal and was shown by only every three years, at the very beginning of ecological crisis, in December 2014 both provincial Environment Department (Luhansk and Donetsk) received requests from the Ministry of Environment on the status of protected areas concerning military conflict and other actions caused by the conflict. There were no other requests or expressions of interest. Departments themself have significant limitations in its activities, as will be maintained later. Activities of ecology departments and environmental inspections Both regional environmental departments — Luhansk Regional State Administration Department of Environment (in Severodonetsk) and Donetsk (in Kramatorsk) — according to the managers of departments of the NRF after the evacuation had no materials, including inventories of protected areas. In connection with the situation, all materials left by temporarily uncontrolled by the Ukrainian authorities territory. Therefore, comparing data on protected areas before and after the war impossible. The monitoring system actually destroyed. In particular, after the introduction of the Law of Ukraine “On temporary measures for the period of the anti-terrorist operation” these structures had lost a chance to provide regional environmental inspectorate and provide monitoring of violations and draw up protocols on violations. Currently, state supervision (control) is possible only by court in frames of criminal proceeding with furher passing such documents to the law enforcement bodies. Therefore, there is no control whatsoever to illegal seizures of natural resources or on the pollution, or on the forest or steppe fires or military economic activity. This is due to the moratorium on scheduled and restrictions during unscheduled inspections of business entities by law. Following the discussion of this problem with the staff of reserves and regional departments of ecology and environmental inspections at present no legal basis for the formation of inquiries and assessments of damages. Therefore, there is urgent need for making appropriate legislative changes.

126 This is the cycle of work on the emergence and ways of development of invasion of alien species, some of which are significant threats to the local economy. One example is the wide-spread invasion of a “corn beetle”, Diabrotica vergifera which destroys corn crops and launched its offensive against Europe from the Balkans, at the height of the Balkan crisis of 1990-1992 (imported from America with military cargoes).

64 UHHRU 2017 “Protection of the natural environment during armed conflict”: results of a monitoring visit of the Ukrainian Helsinki Human Rights Union

At the same time, the environmental inspection of compliance with the requirements of environmental legislation by citizens of Ukraine, foreigners and stateless persons, and the requirements of legislation — on the defence, protection, use and reproduction of forests; protection, maintenance and use of greenery; use, protection and reproduction of the plant world; protection, rational use and reproduction of the animal world; during hunting and hunting; on the conservation of plant and animal objects included in the Red and Green books of Ukraine; on the protection, use and reproduction of fish and other aquatic living resources; the observance of the regime of territories and objects of the nature reserve fund; on the protection, maintenance and use of green spaces; on waste management — reduced to a minimum due to the almost complete lack of vehicles, including vehicles with high level of passability remaining in the temporarily occupied territory, and a small number of staff in departments. According to the results of the discussion of this problem with the staff of the reserves and regional departments of ecology and environmental inspections, there are currently no legal grounds for request- ing and conducting damage estimates. Therefore, the need to introduce appropriate legislative changes is urgent. During the performance of environmental management and environmental inspection functions there are problems of logistics. In particular, for the past two years they didn’t provided by fuel. The staff was reduced; as a result their activity has decreased significantly, now drawn up only up to 35 protocols per month to 80, as previously. Most of the reports concerning fire in the forest, fisheries, violations of waste management rules. Recommendations on cooperation of NPF and СІМІС: It should be stated that, in fact, there is no interaction between environmental agencies (departments of ecology, environmental inspection, management NPF) and the military, despite the fact that there are generally functioning successfully, as shown by our experience, service civil-military interaction (CIMIC). For improving the situation and adjusting this interaction it’s recommended together with units of CIMIC: 1) the problem is the lack of instructions and logs for conducting briefings for reserve’s employees, as well as the lack of practice of any enlightening workshops or briefings for the civilian population for the safety of handling in natural areas, where there are many unarmed shells, mortar mines, etc.; even in protected institutions with an existing state, whose responsibilities include work in the field (eg in the LNR), so far there were no instractions, as well as no journals with marks on their passing; 2) An administration of the NPF institutions and the scientific and technical councils of it should initiate holding training or seminars for military on explaining that natural values are protected by the laws of Ukraine in the territories of the NPF, the topics of which may include seminars in the framework of military patriotic work in the units of the Armed Forces, in particular regarding protected sites in the ATO zone. It’s important to establish contacts with leaders of the military and reserves and NPF, staff management and environmental inspectors; 3) Institutions of the NPF need to assess the material losses as a result of armed conflict, including those that occurred as a result of robbery or hostilities. On the basis of this it is important to conduct a broad advocacy campaign on the problem of the destruction of property and objects of conservation in reserves in the ATO and look for opportunities for the restoration of lost property. In addition, it is important to create a list of monitoring facilities in accordance with the conditions of ATO, in particular, first of all — technical equipment of monitoring on correspondence127. 4) it should be well explained to public authorities (before the visit of the monitoring mission they did not know it!) that civil-military cooperation is a real possibility of state agencies of environmental su-

127 Unfortunately, research department does not have enough opportunities for research (no gasoline provided)

UHHRU 2017 65 On the edge of survival: extermination of the environment in the course of the armed conflict in the East of Ukraine pervision and environmental agencies to do their functions and there is a need to develop the following forms of cooperation: the military more aware of road conditions and terrain, they provided by transportation, their goal — to ensure communication, cooperation with the military and civilians. That is the need of ecologists as well. Proposals for the work and decisions of central state: 1) ask questions about why the central government authorities do not require data loss due to negligent management and military operations. Now there are enough opportunities to use drones even in areas outside the control of protected areas and remote monitoring and identifying problems in the reserves. The actual problem is querying the state of natural ecosystems and analysis of data throughout the ATO zone; 2) actual need is to initiate seminars for the military, such as “Nature in terms of armed conflict, ‘Natural heritage in circumstances of ATO”, allowing to establish contacts between the military and civilians (in these workshops is important to gather all local leaders and environmentalists). Holding such seminars can be supported by international institutions; it is important to communicate to the military, law on protected areas has not been canceled (and under ATO) and their activities (including economic) is not contrary to the objectives of conservation of nature and natural resources; 3) As mentioned above, there are legal restrictions in the Department of Ecology and Environmental inspections as necessary is a violation of this issue at the state level to check the inspection could not only area and protected areas that are reserved for local governments (reserves of local level, including reserves), but also nature reserves and national parks. At the moment these checks are possible only by court order, and the need is the ability of inspectors to check the natural protected areas and areas of any rank128. 4) A concept of “harm” and “significant harm” is ambiguous. Police even requested concerning erosion and asked on substantial harm (according to Art. 246), but no environmental inspectors or ecology department can not make such an assessment since the scale. There are no methodology and no scale. It is an vicious circle. In fact the police decide whether to open a criminal case or not. It is necessary legal and ministerial clarify that environmental damage can be as significant as economic129. Questions that require a first-rate solution: 1. Development of the legal aspects of environmental protection in armed conflict. In situations of armed conflict the laws of Ukraine and international agreements signed by Ukraine on the protection and sustainable use of nature, flora and fauna, water, forests, minerals and natural resources generally; severely limited opportunities as communities on the sustainable use of resources are rave violated; the ability of communities to make sustainable use of such resources is also substantially limited. 2. Establishing monitoring system of protected areas in war. The key theses — NRF in the conflict zone should operate under special instructions and have different funding than NRF of other regions. It is urgent to develop remote data collection methods (phototrapes, kvadrokopters etc.). Importantly comprehensive is to help in restoring of lost documents of regional departments of Ecology and “Chronicle of Nature” of protected areas;

128 In previous years ecoinspection could provide scheduled and unscheduled inspections, but now they are banned, and can only be ordered by court: a person apply to the court, then the inspectors can detect the fact and if applied damage, to contact the police. That must comply with the internal scheme — the inspector shall apply from the Chief on the base of court ruling, then request goes to Kyiv — whether it could carry out unscheduled assessment, that requires a lot of time. As a result, even the harvesting of individual trees, including on protected objects, becomes only an excuse for fixing such a fact, without further sanctions against violators or land users. 129 Ecoinspection and ecology — not involved in the assessment of damage. For calculation of losses there is a technique of the Cabinet of Ministers but it contains only the calculation of spent fuel, are sections on forest felling and forest damage, but there no chapter “As a result of a fire( foresters consider only amount of the wood, not the ecosystem due to CMU resolutions ## 665 and #541). In addition, the work of inspectors is estimated by the number of reported violations, and not by warning of violations, which absolutely does not correspond to the real tasks of inspections.

66 UHHRU 2017 “Protection of the natural environment during armed conflict”: results of a monitoring visit of the Ukrainian Helsinki Human Rights Union

3. It’s necessary to register instructions for military requirements for compliance with environmental legislation in the exercise of administrative functions with all their activities and movements are not related to military action. When protected areas are mining employees of NRF must be informed and it should be done nature conservationon dangerous areas in which nobody can not move. In mining areas, not all cases are created a map. Militants mined even protected areas (Cretaceous flora, Kondrashevskiy reserve); 4. It’s necessary to organize a system of environmental inspections, rather than limiting it under the provisions of the ATO. With the use of natural resources in the “gray zone” (in places where the actual power, timber or protected health do not act and can not perform its functions) in the first place is deforestation and removal of natural resources in general in this area and the protected areas that are located here.

4.6. References and additional sources: Averin D., Podturkin D. Ecological trap OF “republics” //// Petrimazepa.com. — 2015. — 22 July 2015. — Access mode: https://goo.gl/Q7jCfC Balyuk, G.I., Shompol, O.A. National and international legal problems of regulation of environmental protection and provision of environmental safety during armed conflicts // Administrative law and process. — 2015. — № 2 (12). — p. 142–158. — Access mode: https://goo.gl/MwIomb Borovik L.P., Guz G.V., Timoshenko V.A. Provalskiy steppe. The Reserve suffers disaster // The Steppe Bulletin. — 2015 — N 45. — P. 43-45. Vasilyuk O. “For us, life was the war also before”: Talk about the fate of nature reserves in the ATO zone // Ukrainian Week. — 2015 (November 9th). — http://tyzhden.ua/Travel/150006 Environmental consequences of the war in the east of Ukraine // Wikipedia. — 2016. — https://goo.gl/pBDTpb Zagorodniuk I. Biotic diversity and environmental safety in the ATO zone: analysis of situation and risks // Save biotic and landscape diversity of Ukraine: Materials of the Conference 7-8 July 2016 / ed. V.A. Dyakov. — Svyatogorsk, 2016 — P.41–50. — ISSN 978-617-7130-04-7. Zahorodniuk I., O. Mykytyuk, Peregrym M. Program of monitoring plant and animal species that are protected in the Luhansk region // Materials of scientific works of the Luhansk Reserve. — Lugansk, 2011. — P. 5-19. — ISBN 978-966-02-6214-0. Zagorodniuk I., Korobchenko M. Rare fauna of Luhansk: vertebrates priority. — Lugansk: Editorial House “Chico”, 2014. — 220 p. — ISBN 978-966-492-282-8. Zahorodniuk I., Klyuev V., Foroschuk V. Atlas of ecological network of Luhansk region. — Lugansk: Editorial House “Virtual reality”, 2014. — 156 p. — ISBN 978-966-492-369-6. Kravchenko O., Vasilyuk O., Voytsihovska A., Norenko K. The influence of military actions on the environment in Eastern Ukraine // East. — 2015. — № 2. — P. 118-123. Lymansky S. V. Military actions in the territory of the “Melovaya flora” reserve // Steppe Bulletin. — 2014. — No. 42. — P. 34-35. Orestero. The environmental impact of the war in eastern Ukraine// Wilipedia. — https://goo.gl/YAqFsU Vasyliuk O. V., Nekrasova O. D., Shyriaieva D. V., Kolomytsev G. O. A review of major impact factors of hostilities influencing biodiversity in the eastern Ukraine (modeled on selected animal species) // Vestnik zoologii. — 2015. — Vol. 49, N 2. — С. 145–158. Vasyliuk O., Shyriaieva D., Kolomytsev G., Spinova J. Steppe protected areas on the territory of Ukraine in the context of the armed conflict in the Donbas region and Russian annexation of the Crimean Peninsula // Grassland research and conservation (Bulletin of the Eurasian Dry Grassland Group). — 2017. — № 1 (33). — Р. 15–23.

UHHRU 2017 67 CONCLUSIONS AND RECCOMENDATIONS:

1. There are various ways of bringing the State-violator to the international liability for damage to the natural environment, cultural sites and natural resources that caused in the process of occupation during the war. Russia as a State-aggressor is liable for all damage caused as a result of aggression of Russia against Ukraine, in particular the damage to the environment of Ukraine, including the environment of the Crimea and Donetsk and Luhansk regions, according to the customary rules of the law of international responsibility, codified in the articles on State responsibility for internationally unlawful acts, as well as customary regulations of IHL. The Russian Federation as a party to an international armed conflict must compensate damage that occurred as a result of violations of the Geneva Conventions or AP I (Art. 91 of the AP I). These violations should be associated with a violation of the obligations under paragraph 3 of the Article 35, Article 55 of the AP on prohibition of causing serious, widespread, long-term damage to the environment, and with violation of other provisions of the Geneva Conventions or the AP I on unselective attacks (Articles 48, 52 of the AP I), attacks on installations and facilities containing dangerous force (Article 56 of the AP I) and other violations of IHL, that caused an additional (collateral) environmental damage. In addition, actions of Russia can be qualified as violation of the Protocol III on Prohibitions or Restrictions on the Use of Incendiary Weapons to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects of 1980 that prohibits transforming forests or other types of vegetation to the object of attack using incendiary weapons. As the Occupying Power the Russian Federation is responsible for the damage caused to the environment, natural objects, and for demolition of the environmental protection facilities in the territory of the Crimea. This responsibility arises from the violation of Art. 53 of the Geneva Convention ІV according to the AP I. In accordance with Article 3 of the Hague Convention on the Laws and Customs of War of 1907 the Russian Federation is responsible for violations of Articles 55, 56 of the Provisions of the laws and customs of war on land, that is annexed to the Convention of 1907. The Russian Federation is responsible for violations of bilateral agreements with Ukraine in the field of environmental protection, as a result Ukraine has a significant damage, that Russia is obliged to reimburse, in accordance with international law. As a result of the aggression of the Russian Federation Ukraine is unable to perform its international legal obligations under several multilateral environmental agreements, particularly in the occupied territory of the Crimea. The Russain Federation could be brought to the responsibility for environmental damage to Ukraine in the frames of responsibility for damage caused as a result of aggression of the Russian Federation against Ukraine by the way of application of the remedies of international justice as well as quasi-judicial bodies. There are some difficulties of bringing Russia to the responsibility within the international courts, so there is need in using some alternative international instruments. It is important to develop methodology of creating database of evidence for the accountability of Russia for the damage caused to the environment of Ukraine as a result of aggression of the Russian Federation against Ukraine. We suggest to: · recommend Ukraine to use diplomatic efforts within the UN General Assembly and its Committees to reduce the requirements of the Draft principles on environmental protection in connection with

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the armed conflict by the UN International Law Commission regarding the achievement of threshold level of the international liability for damage to the environment during armed conflicts; · recommend maximum use by state authorities of Ukraine of the international legal instruments for the bringing the Russian Federation to the international liability for damage caused to the environment of Ukraine as a result of aggression of Russia; · explore the positive and negative aspects of the use of various international legal instruments and predict the consequences of Ukraine's complaints to the bodies of international adjudication; · establish a special commission within the UN such as the UN Commission on Compensation as a mechanism for the recovery from Russia a compensation for environmental damage and other damages caused as a result of Russian aggression against Ukraine; as alternative option — to ensure the inclusion of provisions on establishing the Commission on Claims and compensation to the future peace treaty with the Russian Federation and to provide to it a power of examination of cases; · include to the concept of damage of the Consolidated claims to the Russian Federation an environmental component; · to develop the database of evidence to justify claims to Russia on its causing the environmental damage in the Crimea, to the continental shelf of Ukraine and to aquatories of the Black and Azov seas within the arbitration proceedings under Annex VII of the UN Convention on Law of the Sea; · adopt laws of Ukraine “On compensation for damage caused to Ukraine by the aggression of the Russian Federation” and “On the criminal punishment of individuals for the crime of aggression, crimes against humanity and war crimes committed during the aggression of Russian Federation against Ukraine”130; · due to fragmentation and limitation of the subject of the claim submitted by Ukraine against Russia to the International Court of Justice (Financing of the terrorism and racial discrimination), and limitation of the subject of arbitration proceedings under the UN Convention of the Law of the Sea only by the territory of the annexed Crimea, Ukraine should work towards the development and submis- sion to the Russian Federation the Consolidated claim which should contains claims on reimbursement of the environmental damage caused as a result of aggression of the Russian Federation to Ukraine; include provisions for reimbursement for mine clearance and elimination of other remnants of war in the Consolidated claim to the Russian Federation and (or) a future peace treaty with it; · examine the reports of international organizations concerning post conflict environmental assessment of the effects of armed conflicts with the purpose to develop a methodology for assessing environmental damage; engage international organizations, including UNEP, for the professional post-conflict environmental assessment of the consequences of war in the eastern Ukraine · create an database of evidence for bringing of Russia to accountability for the damage caused to the environment of Ukraine as a result of aggression of Russia against Ukraine, which must include proving and fixing of: (1) facts of participation of the Military Forces of the Russian Federation in military operations on the territory of Ukraine; (2) control of the RF over the so-called “LPR” and “DPR” and anti-government armed units; (3) breach by the Military Forces of the Russian Federation during the aggression of Russia against Ukraine of the customary and treaty rules of the IHL; (4) violation of the customary and treaty rules of IHL by the so-called “LPR” and “DPR”, anti-government armed units that are under the control of Russia; (5) fixation and calculation of environmental damage of Ukraine caused as a result of aggression of Russia against Ukraine, including destruction, causing damage to the environment of Ukraine, to the natural objects, destruction of protected natural objects in the

130 The idea of adopting these laws belongs to doctor of science, prof. V,A, Vasilenko

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Crimea, illegal extraction of natural resources; (6) fixation and calculating of environmental damage of Ukraine caused by the actions of so-called”LPR” and “DPR”, anti-government armed units that are under control of Russia; (7) fixation and calculating of environmental damage of Ukraine caused as a result of military operations and, particularly, actions of the Military Forces of the Russian Federation and anti-government armed units that are under the control of Russia; (8) justification of existence of causation between the violation — aggression of Russia against Ukraine — and environmental damage of Ukraine; (9) justification of existence of causation between military actions of the Military Forces of the Russian Federation and anti-government armed units that are under the control of Russia, violation of the IHL rules, and environmental damage of Ukraine; (10) justification of existence of causation between the actions of so-called”LPR” and “DPR” and environmental damage of Ukraine that caused as a result of violation of the relevant rules of IHL. 2. The International Criminal Court is an important international instrument for bringing to responsibility of persons that guilty of war crimes and other international crimes. Ukraine has agreed to the jurisdiction of the International Criminal Court, but it has not ratified the Rome Statute, and hasn’t reformed the criminal law on war crimes and crimes against humanity. The condition of criminal responsibility under international law of the Russian Federation leadership and command personnel of the Military Forces of the RF for the damage caused to the environment during the Russian aggression against Ukraine is the existence of evidence of a serious, broad, long-term nature of the damage according to Art. 35, and 55 of AP and Art. 8.2.b.IV of the Rome Statute of the In- ternational Criminal Court, which is challenging task due to the need to involve professionals and the existence of special techniques. It is important to transfer the evidence to the Office of the Prosecutor of the International Criminal Court for prosecuting people by Art. 8.2.b.IV of the Rome Statute of the Inter- national Criminal Court. Considering the fact that no international criminal tribunal has drawn to the criminal responsibility individuals for environmental crimes, including those that committed during the armed conflict to wait for the sentencing of the Russian Federation leadership or command personnel of the Military Forces of the RF by the ISS is unrealistic, this situation could lead to the impunity for environmental crimes committed during the war in Eastern Ukraine. The leaders of the so-called “LPR” and “DPR” and commanders of anti-government armed units will be responsible for the actions that led to environmental damage under the rules of customary IHL (rules 43, 44, 45), and on the basis of national criminal law of Ukraine. When qualifying the actions of these individuals in the frames of an international armed conflict, and applying the relevant rules of IHL, they can bring responsibility in accordance with Art. 35, and 55 of the AP I and Art. 8.2.b.IV Rome Statute of the International Criminal Court. As a rule, there are criminal proceedings against these persons concerning terrorist actions and in those cases articles on war cases don’t taken into account. In this regard we offer: · to take the necessary measures for the ratification of the Rome Statute by Ukraine for the more effective cooperation with the International Criminal Court in the investigation of war crimes in the frames of unlawful environmental damage during the armed conflict; · to develop the special methodology of fixation and justification of environmental damage as a result of the military actions and the attribution of liability for damage of the Military Forces and leaders of so-called “LPR” and “DPR”or anti-government armed units that are under the control of Russia; · in the case of failure to prosecute Russian leadership or command personnel of the Military Forces of the RF for the particular offense under Article 8.2.b.IV of the Rome Statute — Ukraine should make efforts to prove that crimes against the environment should be recognized as a tool of committing of other crimes — war crimes and (or) crimes against humanity; to argue that the destruction

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of natural reserve fund and other elements of the environment in the territory of the occupied Crimea and Donbas constitute the crime “destruction of civilian objects,” as it stated in the Prosecutor’s Re- port on Preliminary Examination Activities concerning the situation in Ukraine; · to provide amendments and additions to the criminal law of Ukraine on specifying the content of Art. 438 of the Criminal Code of Ukraine and bring it into the line with current practices of formulation of corpus delicti of the war crimes · in the case of presence of corpus delecti of war crime against the environment in the actions of the leaders of the so-called “LPR” and “DPR”or leaders of anti-government armed units of, they should be brought to responsility due to relevant norms of international humanitarian law; · provide trainings for investigators of the Security Service of Ukraine and Military Prosecutor’s Office on issues of the qualification of war crimes and interpretation of international humanitarian law on protection the environment in the armed conflict. 3. The legislative provision of the environmental protection in the ATO zone could not be considered as effective. There are some problems on: · establishment of borders of particular objects of Nature Reserve Fund in kind (nature reserves, natural monuments), because Sec. 4 of Art.47 of the Law of Ukraine “On Land Management” determines the exhaustive list of of Nature Reserve Fund’s objects; · issuance of licenses for usage of natural resources, as the Law of Ukraine “On military-civilian administration” doesn’t provided such powers; · illegal cuttings of forest plantations and, above all, forest belts because of their “mismanagement”; · with changing borders of particular objects of Nature Reserve Fund, since the Law of Ukraine “On military-civilian administration” allows only the creation of new NRF, and not changing the borders of the NRF established by the regional council; · protection of information and personal data in the environmental bodies. Shortcomings of legislative and law enforcement sphere in environmental protection in the ATO zone and ensuring of the effective usage of natural resources contain risks of: 1) worsening the population’s situation in Donetsk and Lugansk regions; 2) the loss of credibility of the government, environmental authorities in the minds of ordinary inhabitants of Donetsk and Lugansk regions; 3) significant deterioration of the environment. In regard to this, we offer: · to provide amendments to Sec. 4. of Art.47 of the Law of Ukraine “On Land Management”: after words “zoological parks” add “and other”; · to provide amendments to the Law of Ukraine “On military-civilian administration” in the part of the powers for issuance of licenses for usage of natural resources; · to provide amendments to the Law of Ukraine “On military-civilian administration” in the part of the powers for border’s changing of particular objects of Nature Reserve Fund; · to conduct a monitoring “Information security of the state authorities and protection of human rights during the ATO” 4. The research of the situation with the impact of armed conflict to the environment on the territory controlled by Ukraine, and on non-controlled by Government territory has revealed substantial number of problems in this area: · Ministry of Ecology and Natural Resources of Ukraine insufficiently takes into account the peculiarities of actions of the departments of Environment and Natural Resources in the ATO zone, there is lack of understanding of the special features of environmental monitoring in armed conflict and opportunities for providind information from the military zone and areas with high level of mine danger.

UHHRU 2017 71 On the edge of survival: extermination of the environment in the course of the armed conflict in the East of Ukraine

· Documentation and evaluation of damages caused to the environment in general, and areas of Natural Reserve Fund in particular as a result of the military actions has performed insufficiently. · There is lack of monitoring of the environmental situation and areas of Natural Reserve Fund on non-controlled by Government territory. · There are problems of interaction between the executive bodies that implement state policy in the field of environmental protection, special administration on management areas and objects of natural reserve fund with the representatives of the Military Forces of Ukraine in frames of compliance with environmental legislation and regime of areas of Natural Reserve Fund. · The interactions between the state authorities with environmental and human rights organizations in the assessment of environmental damage, environmental monitoring before, during and after the war in the Donbass, and protection the rights of the inhabitants of these territories in the courts still remains unsatisfactory. For solving these problems we offer: · to develop a methodoly of determination of damage caused to the environment by gunfire (funnels, the remains of pieces of ammunition, etc.); · to elaborate a procedure of fixation of consequences of military actions for environment (drafting acts with indicating number and size of craters, level of contamination by the remains of ammunition, length of trenches and other, damage from fires); · to strengthen cooperation with officers of civil-military cooperation of the Military Forces of Ukraine to ensure compliance with environmental legislation and regime of Natural Reserve Fund in the ATO zone; · to suggest information for the representatives of the Military Forces of Ukraine and other military units of Ukraine on the territory of Natural Reserve Fund in the ATO zone and on the degree of it’s vulnerability. It is expedient to spread maps with indicating Natural Reserve Fund in the ATO zone with brief information on the regime of the Natural Reserve Fund’s territory and objects under protection among the command personnel of the Military Forces of Ukraine; · to develop mechanisms for indirect monitoring of the environment situation and the Natural Reserve Fund on the non-controlled by Government territory and determination of the environmental damage to the environment of certain terrotories of the Donetsk and Luhansk regions of Ukraine that is non-controlled by the Government inflicted by activity of the so-called”LPR” and “DPR” and commanders of anti-government armed units and units of the Military Forces of the RF; · to make a map of the Natural Reserve Fund in the ATO zone with indicating of the areas that affected by military actions with limited access on the non-controlled by Government territory; · to use drones for determination the environmental damage caused to woodlands and the Natural Reserve Fund in case of unavailability of it because of mine awareness; · to develop special methodology for determining and calculating of environmental damage due to mine contamination and contamination of the territory by remnants of munitions and accounting costs for demining of the territory; · to conduct an additional analysis on the impact of armed conflict on human rights in the sphere of enviroment: hunting, gathering of mushrooms, the right to water usage and other; · to develop a mechanism of interaction between command personell of the Military Forces of Ukraine in the ATO zone, departments of ecology and environment and leaders of Natural Reserve Fund’s institutions on the determination of places for temporary landfills on the ATO zone; · to carry out scientific research on impact of consequences of military actions (remnants of ammunition, craters from explotion of ammunition etc.) on the ecological situation and to determine the environmental damage caused by this kind of impact on the environment;

72 UHHRU 2017 Conclusions and Reccomendations

· to provide and to implement specific funding of programs of installation of notice plates for indicating the boundaries of the Natural Reserve Fund; · to solve the issue of priority direction of Environment Fund’s funds to victims of military avctions in the Natural Reserve Fund; · to create mechanisms for attraction of some communities (environmental, human rights protection etc.), to organize volunteer help for the most affected institutions of the Natural Reserve Fund and their staff; · to support complaints of residents of Donetsk and Luhansk regions on health problems due to pollution as a result of Russian aggression in Donbas to the national courts and in case of fulfillment of all prerequisites — to the European Court of Human Rights on a violation of their rights to privacy under Article 8 of the European Convention on human rights by 1950. 5. An important marker of the impact of the armed conflict on the environment is the condition of the Natural Reserve Fund. The research obtained important data that indicate the state of the environment, issues related to the protection of the Natural Reserve Fund and the impact of armed conflict on the abilities of environmental management. It should be noted that in fact there are no interaction between environmental agencies (departments of ecology, environmental inspection, management of NRF) and the military despite the fact that there are services for civil-military cooperation. After robbery of the material and technical base of the NRF by anti-government armed groups and because of limited funding, reserves have no posibility to replenish the lost property; Research department does not have enough opportunities for scientific research. Analysis and synthesis of the data that obtained from the study of materials allowed to separate objects and areas of natural reserve fund of Stanichno-Luhanskiy and Trohizbenskiy districts of the Lu- gansk region and Slovyansk dictrict of the Donetsk region, depending on the overall level of disturbances caused as a result of military operations into the following groups: 1) suffered areas with significant damage — Prydinskaya floodplain (Kleban); “Trizybensky Steppe” (department of the Lugansk Nature Reserve); Cretaceous flora (branch of the Ukrainian Steppe Nature Reserve); Reserves of Stanichno-Luhanskiy district; 2) suffered areas with moderate damage — National Nature Park “Svyati Hory”; nature reserves in the vicinity of the city of Slovyansk Donetsk region; Customers of Popasnyansky district of Luhansk region; Regional Landscape Park (RLP) “Kleban-Bull”; RLP “Kramatorsky” of Donetsk region; 3) suffered areas with minor damage — protected areas of Kreminna of the Luhansk region are the areas that suffered as a result of military action. We made the following conclusions and recommendations: · to conduct demining of areas and neighborhoods of the Preserve “Tryohizbenskyy step” (Depart- ment of Luhansk Nature Reserve); · approving a new project of RLP “Kramatorskiy” of the Donetsk region and the relevant Regulation; · to consider the possibility of expanding of the boundaries of the reserve “Tryohizbenskyy steppe” (Department of the Luhansk Nature Reserve) along the Donets river; on the status of “Provalskiy steppe”, on the status of areas of the National Park “Meotida” that located on the uncontrolled territories; · examine the impact of the military actions on vegetation at the reserve “Cretaceous Flora”, to carry geobotanic description for that purpose; · to conduct a full examination (on the first stage — by the state level ) of protected areas for funding mines and other explosive remnants of war with the preparation of the act and providing instructions on mine risk for an education staff and researchers;

UHHRU 2017 73 On the edge of survival: extermination of the environment in the course of the armed conflict in the East of Ukraine

· to inform personnel of the Armed Forces units based in the territory or around protected areas on the regime of protected areas, on problems of the regim of minimal impact on protected areas, conduct awareness about the natural values of protected areas ( “Nature in war”, “Natural reserves in conditions of ATO “); · to conduct a full examination of NRF areas concerning damage to the environment that has emerged in the case of military actions, with drafting of relevant acts; · to conduct a corresponded preliminary assessment of damage from military actions and from actions of the occupying power to environment of the protected areas that located in the territory which temporarily non-controlled by the Ukrainian authorities; · to establish through the Civil Military Cooperation of the Armed Forces of Ukraine cooperation between the Luhansk Nature Reserve and the military and to conduct a survey of the Prydintsivska floodplain area for finding traces of fires, soil disturbances, the newly established network of roads, forest usage etc.; · to conduct a comprehensive monitoring of military actions on the environment within the subject of scientific research of government agencies and to implement complex research topic “Monitoring of ecosystems as a result of ATO” involving public and private funding (grants); · increase funding of reserves that located in the ATO zone and provide the acquisition of corresponding monitoring (fototraps, drones); · to conduct advocacy campaign on the issue of destroying of reserves as a reslt of military actions.

Photo by V. Parkhomenko

74 UHHRU 2017 ANNEXES On the edge of survival: extermination of the environment in the course of the armed conflict in the East of Ukraine

Annex À QUESTIONNAIRE survey of employees of reserve (environmental protection), environmental, scientific, educational, hunting, forestry organizations and institutions on the state of environmental protection in the area of armed conflict in the East of Ukraine

1. Name of your organisation ______2. Location of your institution (region, district, town) ______3. Type of activity of your institution: a) environmental; b) ecological; c) research; d) education; d) hunting; e) forestry; h) other ______4. If you represent an institution that is an NRF or study such objects, consider the type: a) on the list of protected areas of international importance; b) on the list of protected areas of national importance; c) on the list of protected areas of local importance; d) has historical and cultural significance (the object of cultural heritage, etc.) ______5. The key value of protected areas or areas: a) unique ecosystems or land of international importance (eg. "Ramsar"); b) the settlements of critically endangered species that are under international protection; c) other______6. How long your organization was in a combat zone or military maneuvers: from______till______7. Does your organization was located in the vicinity of military objectives, to a theater of war: a) no; b) yes; a commentary if necessary: ______8. Did a direct military operations (including accommodation or falling objects or explosive devices)occurred on the territory of protected areas, and whether there were people or transport: a) yes; b) no; c) a specific comment______9. What kind of military action took place in protected areas or objects or their protected zones: a) maneuvering of techniques and movement of people; b) fire, b) explosion, formation of craters, d) stretching or minefields; d) placing firing points; e) your option______10. Evaluate the overall level of violations caused to the protected mode as a result of military action: 2014 2015 2016 ² q. ²² q. ²²² q. IV q. ² q ²² q. ²²² q. IV q. ² q. ²² q. ²²² q. IV q. minor pointed minor Pointed numerouos and significant local significant

Total significant

Total critical

______11. What types or locations affected ecosystems such violations and to what extent (details): meadow steppe roadside biotopes forest stands ponds own answer complexes minor

pointed minor Pointed numerouos and significant local significant

Total significant

Total critical

______

76 UHHRU 2017 Annexes

12. In the case of such violations, by whom they are committed: a) The Armed Forces of Ukraine ______; b) National Guard of Ukraine______; c) volunteer battalions of Ukraine______; d) The Armed Forces of the Russian Federation______; e) Ukrainian illegal armed groups______; f) Russian illegal armed groups ______; g) your option ______13. These violations were related to protected regime as a whole or whether they were directed at some specific items: a) general disorders; b) deliberate violation by the need (eg. change of camouflage shooting specific of a terrain); c) deliberate violation that could be avoided (eg. felling trees, obtaining other resources, including food); d) vandalism (icluding. unjustified destruction of landscape design or organisms); e) your option______14. Do military really know (could and should have known) that protected area or object is the object of the State Guard or a nature reserve: a) yes, as indicated on each map, terrain and it is well known; b) more yes than not; c) more no than yes; d) no, because ______15. If so, in how your object could be identified as the environmental value by the armed conflict parties with the help of outward signs: a) our object is marked with standard signs "protected areas"; b) our object marked on all types of carto- graphic materials; c) your option______16. Did your office or area of the protected object subject to deliberate attacks or military actions a) no; b) yes, movement of people and equipment, including tracks; c) yes, shelling, including shells; d) mining. Clarify information: ______17. Whether there was not dictated by imperative military necessity a damage of natural complexes or destruction of populations, locations of rare species or the species: a) no; b) yes (who, when, what was it that caused damage, by what)______18. Are there any changes due to violations of protected regim by the armed forces substantial or irreversible: a) no; b) yes (who, when, what was it that caused damage, by what)______19. Did the local population minimize measures for the protection of nature for its own usage of the nature and, if so, which: a) no; b) occasionally; c) mass (who, when, what was it that caused damage, by what) ______20. If the fauna and flora of your object has changed, specify: a) disappeared (specify)______; b) appeared (specify)______; c) increased volumes of shrubs in forests ______; d) growing number of wild grasse in steppes and meadows______; e) increasingly began to use traps, running knols etc. while hunting ______; f) cases of hunting of bustards and others. rare animals during the hunt ______; g) your option______21. If violations were caused by military actions, then how it was occured: a) explosions — specify area and depth of craters, gauge, area of impact (1-5 hectares, to 20, more than 100)______

UHHRU 2017 77 On the edge of survival: extermination of the environment in the course of the armed conflict in the East of Ukraine b) destroyed of the topsoil by heavy military transport — destroyed vegetation and trees (tanks, assault guns, trucks, etc.) — that area and others ______c) damage by chemicals by military equipment — what type of poison, how many (if gasoline or diesel, from a small tank, a barrel-truck or a fuel truck)______22. If violations were caused by uncontrollable state, then how it was occurred: a) illegal logging — the diameter and type of trees whether it was for their own needs (some trees), or for economic activity (tens, hundreds) or for military purposes (who and what was happened)______; b) ruin — what habitat was destroyed (steppe, meadows, swamps): area, that crops were planted, for how many years______; c) hunting — how many people, how often and if there was a result______. 23. Were there some specific acts of vandalism against natural objects and specific species of living organisms and their habitats: a) no; b) yes ______24. If so, then how it was occurred: a) creating of waste dumps — prescription, type (household waste, waste of bulding materials), in which the biotope, area and thickness______; b) the destruction of water canals, dams — and what consequences it caused (flooding, destruction of the lake)______c) the uncontrolled hunting of animals for sale or collection of rare plants — the number and location______d) destruction of bird’s nest or dens of mammals (including marmot)______25. What do you, this was due to: a) ignorance, b) accident, c) the need for military action, d) changing traditional habits (nothing to eat, nowhere to mow), e) neglect (succession as people see the total change), f) excess (where could not do) — the military killed predatory birds, confusing them with drones, killed mice for safety,large animals were killed), g) your op- tion______. Note: regarding questions 20-24 — indicate the date or period when observed and whether there are photos. 26. Were there thefts or robberyfrom your institution some values that could significantly affect to the safety and violation of monitoring of natural objects: a) no; b) yes (who, when, what was it that caused damage, by what) ______27. Were theft or misappropriation from your institutions of scientific data or monitoring data (monitoring data, pheno- logical card, records of the nature, electronic resources with information about the state of natural objects): a) no; b) yes (who, when, what was it that caused damage, by what)______28. Did at your facility occurre actions for removing objects of protection (hunting, fishing) or "military" methods (stretching, killing fish): a) no; b) yes who, when, what was it that caused damage, by what)______29. If your institution suffered from illegal actions, how it was documented: a) violations are not fixed in documents______; b) an act was drawn up ______; c) photofixation______; d) your option______. 30. If the facts were, were not documentally fixated, why exactly: ______31. Were the police informed about illegal violations regarding your institution: a) yes; b) no; c) ______32. If the police were not informed, why exactly:______33. When and what units of law enforcement bodies were informed:______34. What were the decision of law enforcement bodies after checking the circumstances: a) initiated criminal proceedings under article ______; b) initiated proceedings in cases of administrative offenses under articles ______; c) proceedings were not initiated; d) ______

78 UHHRU 2017 Annexes

35. If the proceedings were not initiated, why:______36. At what stage in the present initiated proceedings are: a) pre-trial investigation; b) preparatory hearing; c) court proceedings; d) the appeal proceedings; e) enforcement of judgments; f) your option______37. Were any persons brought to responsibility for illegal violations: a) all the perpetrators were brought to criminal, administrative, disciplinary (underline) responsibility and punished; b) most of the perpetrators were brought to ______responsibility and punished; c) smaller part of the perpetrators were brought to ______responsibility and punished; d) any perpetrators have not been brought to justice and punished; e)______. 38. Had your institution an opportunity to use the services of a lawyer to defend the violated rights: a) yes; b) no; c)______39. Does your organization needs in a lawyer to defend the violated rights: a) yes; b) no; c)______. 40. If you know the facts of unlawful actions on the environment and reserves elsewhere, please tell us more about it ______

Thank you for cooperation!

UHHRU 2017 79 On the edge of survival: extermination of the environment in the course of the armed conflict in the East of Ukraine

Appendix B QUESTIONNAIRE Local surveys on the state of nature and the use of military and natural systems and natural resources in the area of armed conflict in the East of Ukraine

Target audience By "local natural resources" refers primarily local residents who regularly engaged or involved in such forms of nature, like hunting, fishing, gathering mushrooms and berries, mowing, grazing and so on. These are the communities living near protected areas, known and little altered natural systems, forestry and hunting farm, fish farm and others.

1. Name of respondent (optional) ______2. Region of current residence (region, district, town)______3. Type your activities and contact phone: a) forestry worker; b) education; c) the private entrepreneur; d) unemployed; e) employee agriculture; e) other version ______4. Place in the region, which is information: ______5. What habitats dominate the considered areas (meadows, steppes, marshes, forests, water bodies) ______6. As used in military operations area (grasslands, livestock grazing, timber)? If protected object — that indicate whether there are plaques on its perimeter ______7. How long area was in a combat zone: from______to ______8. How close was at that time the area for military facilities, theater of war ______9. Evaluate the degree of impact of human activity on nature of your region compared to 2013: 2014 year 2015 year 2016 year is un- is un- is un- decreased increased decreased increased decreased increased changed changed changed I qr.

²² qr.

²²² qr.

²V qr.

10. If the human influence has decreased, how this has affected the nature of your region compared to 2013: a) positive; b) negative 11. If the human influence grew, how it affected the nature of your region compared to 2013: a) positive; b) negative 12. What, in your opinion, were caused as follows: a) set bombs and mines; b) people actually went and no one is home; c) ______13. What areas concerned (make a count of the total area NA) ______14. There were changes in flora and fauna: a) yes; b) no; c) I do not know; d) ______15. If changes have occurred, then what they are: a) disappeared (specify) ______; b) appeared (specify) ______c) the increased volume of shrubs in forests ______; d) çàáóð’ÿíåííÿ steppes and meadows ______; e) increasingly began to use traps, strangles, etc while hunting ______; f) cases were mining bustard and others rare animals during hunting ______; j) your version ______16. If increasing human impact on the nature of your region compared to 2013 was caused by military action, then why is manifested: a) explosions — which lesion area and depth of craters, gauge, area struck (1-5 hectares, up to 20 and more than 100) ______b) destroyed the topsoil by heavy military transport — destroyed vegetation and trees (tanks, self-propelled guns, trucks, etc.) — that area and others______

80 UHHRU 2017 Annexes c) the chemical destruction of military equipment — is a poison that number (if gasoline or diesel, from a small tank, barrel- truck fuel truck) ______17. If increasing human impact on the nature of your region compared to 2013 was caused by uncontrollable, then why is manifested: a) illegal logging — the diameter and type of trees or on site (some trees), or business activities (tens, hundreds) or for military purposes (who and what he did) ______b) ruin — which destroyed habitat (desert, grasslands, swamps): the area which crops planted, for how many years ______c) hunting — how many people about how often or well ______18. If increasing human impact on the nature of your region compared to 2013 can be assessed as vandalism, then why is manifested: a) the emergence of landfills — prescription, type (household waste, waste materials), in which the biotope, area and thickness______b) the destruction of water canals, dams — and the consequences it caused (flooding, destruction of the lake) ______c) the uncontrolled hunting of animals for sale or collection of rare plants — the number and location______d) destruction of birds’ nests or dens mammals (including marmot) ______19. What do you, this was due to: a) lack of knowledge, b) accident, c) the need for military action, d) changing traditional habits (nothing to eat, no place to cut), e) neglect (succession as people see common changes), f) excess (where could not do) — the military destroyed the birds of prey, taking them for drones, mice for safety, that destroyed large animals), g) your version______Note: regarding issues 16 — 19 — specify the date or period when observed and whether existing photos. 20. Area used during the war for troop’s deployment: a) no; b) yes (as barracks for military, military stores, f iring points, etc) ______21. Occurred on the territory of the protected object direct military operations (including placement or falling objects or explosive devices) and whether there were people transport: a) no; b) yes ______22. What is the fighting took place on the territory or territories NA objects or their protection zones: a) the movement of people and technology, including and tracked, b) attacks, including medium-caliber ammunition, c) explosions with artillery and rockets, the formation of funnels, d) extensions or minefields; e ) placing firing points; e ) chemical destruction of military equipment — is poison, the amount (if gasoline or diesel, from a small tank, barrel-truck fuel truck) f) other. Check the information (which lesion area and depth of craters lesion area):______23. The general level of violations, how to assess these violations as a result of military action: a) irrelevant; b) a minor point; c) point numerous and significant; d) significant local; e ) total material; f) ) pervasive critical; g) ______24. Are there any changes due to violations by the armed forces irreversible: a) no; b) yes (who, when, what it was that the damage was caused) ______25. If yes, by whom they were caused by: a) The Armed Forces of Ukraine; b) National Guard of Ukraine; c) volunteer battalions Ukraine; d) The Armed Forces of the Russian Federation; e) Ukrainian illegal armed groups; f) Russian illegal armed groups; g) ______26. What types of locations or ecosystems affected following violations: a) roadside habitats; b) stands; c) meadow-steppe zones; d) water; e) other. If different types and varying degrees, please indicate in the "stands — significantly (destruction)": ______27. In your opinion, why this area was chosen for military action ______28. Could be elected neighboring area (with less importance to the local population or not included in the natural reserve fund): a) yes; b) more yes than not; c) no more than yes; d) no______

UHHRU 2017 81 On the edge of survival: extermination of the environment in the course of the armed conflict in the East of Ukraine

29. Reliably known (could and should have known) military that the area was the object of natural reserve fund (set warning signs " protected areas " on the perimeter or on the road) or in an important use for the local population: a) yes; b) more yes than not; c) no more than yes; d) no e) other ______30. Subjected territory or its components (wood, soil, steppe, fauna, etc.) deliberate illegal subver- sion: a) yes; b) no 31. Estimate the volume of the area in which injury ______32. Which forms of intentional unlawful destruction Armed Forces participating units, National Guard, volunteer battalions of Ukraine: a) did not participate: a) did not participate; b) animals were caught (emphasize the correct options: with the help of — traps, rifles, stretch marks, locks, other ______) ; c) cut down trees; d ) digging trenches; e) the grass cover was destroyed; f ) carried out unauthorized excavations; g) your version ______33. Which forms of intentional unlawful destruction involved Ukrainian illegal armed groups: a) did not participate; b) animals were caught (emphasize the correct options: with the help of — traps, rifles, stretch marks, locks, other ______); c) cut down trees or exterminated (that age, which breeds in which areas) ______; d) digging trenches; e) the grass cover was destroyed; f) unauthorized archaeological excavations were carried out; g) your version ______34. Which forms of intentional unlawful destruction involved the Armed Forces, Russian illegal armed groups: a) did not participate; b) animals were caught (emphasize the correct options: with the help of — traps, rifles, stretch marks, locks, other ______) ; c) cut down trees or exterminated (that age, which breeds in which areas) ______; d) digging trenches; e) the grass cover was destroyed; f) unauthorized archaeological excavations were carried out; g) your version______35. Which forms of intentional unlawful destruction involved the local population: a) did not participate; b) animals were caught (emphasize the correct options: with the help of — traps, rifles, stretch marks, locks, other ______) ; c) cut down trees or exterminated (that age, which breeds in which areas) ______; d) digging trenches; e) the grass cover was destroyed; f) unauthorized archaeological excavations were carried out; g) other______37. What types of animals or plants were being destroyed? ______38. What is the purpose: a) hunting b) confusion of military drones, c) vandalism, d) your version ______39. Which types of plants or animals, which significantly affected or, conversely, significantly increased the number you can call?______40. What has clearly disappeared or appeared? ______41. Did dams or ravines for warfare be destroyed: a) yes; b) no; c) ______42. Are the territories flooded or water bodies drained: a) yes, in flooded areas______; b) no, not flooded; c) yes, in drained areas______; d) no, not drained; e)______43. What military side: a) The Armed Forces of Ukraine; b) National Guard of Ukraine; c) volunteer battalions Ukraine; d) The Armed Forces of the Russian Federation; e) Ukrainian illegal armed groups; f) Russian illegal armed groups; g) ______44. If carried out illegal excavations, by whom, when, what exactly was that damage was caused ______45. Have changed the land use local people for their own natural resources and, if yes, which: a) no — most left the war; b) occasionally, c) mass (who, when, what it was that the damage was caused, the reason — survival (cut wood to keep warm or hunting as the only option to feed themselves or to mass sales, etc.); d) ______46. Were specific acts of vandalism against the natural areas and specific species of living organisms and their habitats: a) no; b) yes (who, when, what it was that caused damage)______47. Who, when, where and in which areas formed landfill (waste local population or the military, the export of construction materials, chemicals draining etc) ______48. Were at your facility action to remove object protection (hunting, fishing) or "military" methods of fishing (extensions, jamming fish): a) no b) yes (who, when, what it was that caused damage)______

82 UHHRU 2017 Annexes

49. If you know the facts committing other illegal acts regarding the environment and preserves, please tell us more about it______50. If you know facts of the above or other illegal acts in relation to other areas, please tell us more about it ______51. If you have photos violations of natural objects, please share them or show

Thank you for your cooperation!

UHHRU 2017 83 On the edge of survival: extermination of the environment in the course of the armed conflict in the East of Ukraine

Appendix C FORM OF STUDY conservation (conservation), environmental, scientific, educational, hunting, forestry organizations and institutions on the state of environmental protection in the area of armed conflict in eastern Ukraine

1. Name______2. Location______3. Type of object agencies: a) conservation; b) environmental; c) research; d) education; e) hunting; f) forestry; g) other ______4. Type of natural reserve fund: a) included in the list of objects of nature reserve fund of international importance; b) included in the list of objects of nature reserve fund of national importance; c) on the list of objects of nature reserve fund local importance; d) has historical and cultural significance (the object of cultural heritage, etc) ______5. The key value of protected object or area: a) land or unique ecosystems of international importance (eg. "Ramsar"); b) the settlements critically endangered species that are under international protection; c) another ______6. Date of formation______7. Mini Evaluation and major environmental issues before the armed conflict (see. Ecological passport in 2013)______8. How long was in a combat zone or military maneuvers: from______to______9. Will was in the immediate vicinity of military objectives theater of war: a) no; b) yes; if necessary commentary: ______10. Does occurred on the territory of the protected object direct military operations (including placement or falling objects or explosive devices) and whether there were people transport: a) yes; b) no; c) a separate comment______11. What is the fighting occurred on the protected area or facility or their protected zones: a) maneuvers of technology and movement of people; b) shooting, c) explosions, the formation of craters, d) stretching or minefields; e) placing firing points; f) ______12. A brief description of the object under examination (general and detail about the damage a result of hostilities) ______

84 UHHRU 2017 Annexes

13. The general form photo______

14. Photo damages______

15. Plan showing the locations of damages and reference numbers of photos

16. When inflicted injury ______17. As a result of damage sustained: a) deliberate attacks; b) accidental damage due to attacks on military installations located near c) use of the conflicting parties in improper purposes; d) the deliberate destruction; e) willful damage; f) theft; g) robbery; h) misappropriation; j) vandalism; k) ______18. Who is sustained injuries: à) the Armed Forces of Ukraine; b) National Guard of Ukraine; c) volunteer battalions Ukraine; d) The Armed Forces of the Russian Federation; e) Ukrainian illegal armed groups; f) Russian illegal armed groups; g)______19. Reliably known (could and should have known) military that protected area or object is the object of the State Guard or a reserve: a) yes as indicated on each map, terrain and it is well known; b) more yes than not; c) no more than yes; d) no, because______

UHHRU 2017 85 S cientific pu b lication

ON THE EDGE OF SURVIVAL: Extermination of the environment in the course of the armed conflict in the East of Ukraine

General edition: A. P. Bushchenko

Translation: Natali³a Okhotnikova Editing and proofreading: P.M.Lvova Cover and digital layout: Slomonov V.E.

1 Ôîðìàò 60õ84 /8. Óì.-äðóê. àðê. 10,23. Íàêëàä 100 ïðèì. Çàì ¹ 365.

Âèäàâíè÷à êîìïàí³ÿ “ÊÈÒ” 04080, ì. Êè¿â, âóë. Êèðèë³âñüêà, 19-21; òåë.: (044) 482-45-23 Ñâ³äîöòâî ñóá’ºêòà âèäàâíè÷î¿ ñïðàâè ÄÊ ¹ 861 â³ä 20.03.2002 ð.