Oleksii Plotnikov, PhD, International Judiciary
Borys Babin, DrHab, International Judiciary
We in the “ARC” are very interested in everything related to water in Crimea and try to share our interest with the general public. Therefore we paid close attention to the fact that the Investigative Committee of the Russian Federation initiated a criminal case on the fact of ecocide in the form of damage to “the economic, social and environmental situation of the Crimean peninsula by blocking the North Crimean canal” . True, on August 24, when this case was announced, we did not pay due attention to it, because reaction to every extravagant fantasy of the Russian state authorities in Crimea greatly exceeds our capacities.
However, in the light of the new wave of repressions by the occupation authorities against the Crimean residents, including the enforced disappearances of the representatives of the indigenous people , with the subsequent politically motivated accusations, as well as the emergence of information about the possibility of declaring the Mejlis of the Crimean Tatar people a terrorist organization under the laws of the occupying power , we had to take a closer look at the Russian ecocide criminal case. In this essay, we will consider where the idea of a criminal case against ecocide came from, against whom it is directed, and how legally justified the statements of the Investigative Committee of the Russian Federation are.
We have already examined what ecocide is and the prospects for recognizing it as a crime in international criminal law . Let us briefly recall that such a crime as “ecocide” does not exist in international law now, although an active expert work on its definition has been carried out recently . Certain types of environmental impact can be considered as elements of other international crimes.
Crimes against the environment can be found in the criminal legislation of many states, however, the term “ecocide” and the crime of “ecocide” are contained in the criminal codes of only a few countries that were once part of the USSR: Russia, Armenia, Belarus, Georgia, Kazakhstan, Kyrgyzstan, Tajikistan and Ukraine . Moreover, the “oldest” criminal code is that of the Russian Federation. It was adopted in 1996, and article 358 (ecocide) was already present in the first edition . The definition of “ecocide”, for example, in article 441 of the Criminal Code of Ukraine  is copied from article 358 of the Criminal Code of the Russian Federation. That is, Russia was the first of all the states in the world to enshrine the crime of ecocide in its criminal legislation, and became a “model” for its neighbors.
Russian experts in the field of criminal law   associate the emergence of the crime of ecocide in the Russian Criminal Code with the implementation of the 1977 Convention on the Prohibition of Military or any other Hostile Use of Environmental Modification Techniques . This Cold War document prohibited 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. Experts still refer to it when studying the possibility of criminalizing ecocide in international law, although now the approach established in 1977 looks outdated.
The criminalization of ecocide in the Russian was hardly effective. For at least a quarter of a century between 1996 and 2021, one single criminal case was initiated under Article 358 of the Criminal Code of the Russian Federation and it concerned the poisoning of salmon fry by unknown persons in a well in Kamchatka in 2001. This case did not reach the court . In other words, until 2021, the norm on ecocide in the law of the Russian Federation was dead.
A team that calls itself “the Crimean working group for assessing the damage caused to the peninsula by Ukraine”  had a hand in its sudden revival. It was this group of people who turned in April 2021 to the Investigative Committee of the Russian Federation and the FSB with statements about the initiation of a criminal case on such crimes under Russian law as “terrorist attack”, “public calls and justification of terrorist activities”, “organization of a terrorist group and participation therein”, “organizing the activities of a terrorist organization and participating therein”, “sabotage”, “ecocide”, “act of international terrorism”. The “terrorist” offenses have long been an instrument of political repression in Russia, but reference to the crime of ecocide is an innovation, the appeal to which is obviously associated with specific circumstances caused by the cessation of water delivery through the North Crimean Canal.
We will not dwell on proving that the initiation of a criminal case under Article 358 of the Criminal Code of the Russian Federation is a political persecution. If the functionaries of the occupying state were really so worried about the protection of nature, then one would expect a more active position, for example, on the issue of the destruction of natural sites belonging to indigenous peoples in the Russian Federation itself , or environmental disasters in Crimea . However, real environmental problems in Russia do not arouse the interest of its Investigative Committee, and no working groups are created. On the other hand, the Committee accuses the “unidentified persons on the territory of Ukraine who oppose the reunification of Crimea with Russia” of environmental problems of the occupied territory.
It should be admitted that the authors of this text are not authorized specialists in the field of criminal law, however, from the point of view of ordinary logic, it is difficult to understand how a person can be both “unidentified” and located on the territory of Ukraine. Already this formulation from the message of the Russian investigative committee looks like “appointing the guilty” in advance in violation of presumption of innocence, fundamental to criminal law. However, let’s return to the international law.
The message of the Investigative Committee of Russia states that these “unidentified persons” acted in violation of “the provisions of the Convention on the Prohibition of Military or any other Hostile Use of Environmental Modification Techniques”. This formulation raises three questions.
Firstly, how can an individual violate an international treaty at all, if it is concluded by a state and the state bears the obligations? If the Russian officials believe that there has been a violation of the aforementioned Convention by Ukraine, then they should refer to its Article V, which establishes dispute resolution mechanisms. In particular, states have an option to consult with each other within the UN and through the Consultative Committee of Experts. It is also possible to apply to the UN Security Council. However, it is not known about the convocation of the Consultative Committee of Experts, the appeal to the Security Council, or simply about attempts to seek consultations with Ukraine. The use of an international convention to justify the initiation of a criminal case looks like another attempt by the aggressor state to distort international law.
Secondly, it is not clear how a criminal case can be initiated on the basis of an international treaty. One does not need to be an expert in the field of criminal law to read article 14 of the Criminal Code of the Russian Federation, according to which a crime is an act prohibited by the criminal code. This is in line with the principle of “no punishment without law”, which is set out, for example, in article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms: “no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed”.
Thirdly, in the Convention, the impact on the environment is understood as the use of any means aimed at altering natural processes. However, the blocking of the North Crimean Canal is not a manipulation with natural processes. On the contrary, the existence of the canal is a manipulation with the natural processes, but the termination of the supply of water through it is the restoration of the natural order that existed before the construction of the canal.
It may be objected that the report of the Investigative Committee still mentions a specific article of the Criminal Code of Russia, therefore, there are, at least theoretically, legal grounds for initiating a criminal case. This objection should be rejected for the following reasons.
The case was initiated due to “damage to the economic, social and environmental situation of the Crimean peninsula”. However, the corpus delicti of ecocide according to Russian criminal law is “massive destruction of the animal or plant kingdoms, contamination of the atmosphere or water resources, and also commission of other actions capable of causing an ecological catastrophe”. It does not cover economic and social damage. For such types of criminal offenses, the Criminal Code of the Russian Federation has chapter 22 (crimes in the field of economic activity) and section IX (crimes against public safety and public order). Article 358 is not included in either Chapter 22 or Section IX of the Criminal Code of Russia, therefore it excludes the possibility of investigation of crimes against economy or society.
With regard to “harm to the ecological situation”, which can fall under the definition of “other actions capable of causing an ecological catastrophe,” such damage is described by the Investigative Committee as “changes in the ecosystems of the Sivash Bay and its shallow bays, as well as the state of animal populations”. The report states that “over the past six years, the salinity of Sivash has tripled. The populations of almost all species under consideration, including those listed in the Red Book of Russia and the International Union for Conservation of Nature’s Red List, have declined, and some of them can be considered extinct. Wetlands of international importance Central Sivash and Eastern Sivash are losing their conservation value”.
Here we will interrupt such an extensive quotation and pose a simple question of a freshman level. An actus reus is a necessary element of crime. It includes a causal link between the act and the resulting consequences. The question arises, what is the causal relationship between the action (closure of the North Crimean Canal) and the consequences referred to by the Russia’s Investigative Committee (changes in the ecosystems of the Sivash, reduction in animal populations)? After all, Sivash existed before the construction of the North Crimean Canal, and animals, fish, birds and plants lived here long before the arrival of humans.
If we agree with the opinion of the Russian investigators, it turns out that the water in the North-Crimean Canal should be drained into the Sivash or given to the wild animals. We hope that this will not happen, because the ingress of a large amount of fresh water into the Sivash, which is naturally characterized by high salinity, will be a disaster for the local ecosystem.
And here, in support of our position, it is worth citing the opinion of Russian and Crimean ecologists. It should be immediately recognized that over the past five years, by order of the Russian government, the Sivash ecosystems have been more or less actively studied by researchers from the Azov-Black Sea branch of the All-Russian Research Institute of Fisheries and Oceanography. This was also done by representatives of the Russian-controlled “Sevastopol State University”, “Sevastopol Branch of the State Oceanographic Institute named after N.N. Zubov” and the “Marine Hydrophysical Institute of the Russian Academy of Sciences” located in Sevastopol also. And although the purpose of the Moscow customers of these studies is now becoming obvious, and also despite the fact that these studies have not been coordinated with the authorities of Ukraine and with its official scientific, and therefore they are at least doubtful within the framework of the requirements of international maritime and environmental law, and also – carried out in institutions under sanctions, they should still be quoted.
For example, in the publication of the “Marine Hydrophysical Journal” in 2019, a group of scientists assess the impact of the North Crimean Canal on the Sivash until 2014 literally as follows: “The Eastern Sivash suffered the most from fresh water discharges. Most of the water area of the salt deposit has been used for many years as a reservoir for waste water from rice fields. Under the influence of the Dnieper waste and drainage waters, some areas of the Eastern Sivash freshened to 23 ‰, an increase in the fresh component in the water balance of the Sivash created new conditions in the habitat with a change in the biological diversity and productivity of the reservoir” .
Other authors assert the following in another 2020 article of the same magazine, published in the occupied Sevastopol: “until 1969, the sea level difference in the Sivash Bay and in the Henichesk area was more or less stable”, but later, “with the start of the volume of fresh water from agricultural land …the water level has increased significantly” . Thus, even directly Russia-controlled specialists admit that the primary environmental conditions of the Sivash existed just before the launch of the North Crimean Canal. And it is precisely those native Sivash’s conditions that the authors of mentioned article, 2019 call natural, in particular, claiming that now “the salinity of the waters of the Eastern and Southern Sivash continues to increase with a gradual approach to the natural salinity of the bay, which existed before the launch of the North Crimean Canal” .
Also, an article in the publication “Environmental Safety of the Coastal and Shelf Zones of the Sea” of 2018 states that “based on the analysis of information on the state of the water area of the Sivash Bay after the closure of the North Crimean Canal, the termination of irrigated agriculture in Northern Crimea and the absence of discharge from irrigated fields (rice paddies) of a large volume of fresh water in the bay, the main tendencies of changes in its hydrological and hydrochemical regimes in modern conditions, which are gradually approaching natural ones, have been revealed” .
Thus, the very studies of changes in the Sivash ecosystems, which the Investigative Committee will most likely now use in a criminal case, recognize that the current changes in the Sivash ecosystems are not some new transformations, but a return to the natural, native conditions of this reservoir. We must add that other authors of the 2019 publication in the Rostov scientific edition “Water Resources and Habitat” directly indicated that “the increase in water salinity in the eastern part of the Sivash Bay in 2015–2017 contributed to the development of the gill-footed crustacean” . Obviously, this crustacean, which developed in the Sivash for millennia and which created as a result of its activities the deposits of healing silt mud, would not like the current Investigative Committee’s opinion on the “ecocide”, that is, that the Sivash should allegedly be freshened again, depriving the unfortunate gill-legged of their natural habitat.
The digression into the natural sciences could have ended there. But we add that the aforementioned researchers constantly emphasize that the Sivash ecosystem is not basin of Dnieper water with one tap, and that there is another variable in this equation – namely, the Sea of Azov. They state that the ecosystem of the Sivash “over the course of many centuries has undergone great changes, associated primarily with the periodic destruction of the Arabat Split washed by the sea” . The article of the “Marine Hydrophysical Journal” of 2020 mentioned by us indicates that the current “restructuring of the ecosystem in the Sivash” “proceeds against the background of natural variability of the main components of the water balance, one of which is the water exchange with the Sea of Azov” .
At the same time, it is difficult for Crimean and Russian ecologists to say how much the absence of water in the Canal and, accordingly, the presence of it in the Sea of Azov affects the Sivash, since the sea is connected with the Sivash by natural channels only in the Ukraine-controlled territory. Fulfilling the order of the Russia’s Investigative Committee, the aforementioned ecologists did not visit the Kherson bank of the Sivash and the corresponding ducts, and more, they were even limited by “Russian border guards” to study Sivash’s Crimean part . But it would be enough, for example, to discuss the situation with the Ukrainian authorities in order to study this hydrology and, basing on the results of understanding the real situation, to take simple practical measures to reduce the salinity of the Sivash (if it is allegedly really necessary).
Also, for example, it is technically not difficult for the Russia-controlled “administration” to transfer the Azov waters to the Eastern Sivash through the Arabat Spit, which has a width of 200 meters of sand embankment in some places of its Russia-controlled part. Although whether this should be done in principle is a completely open question, and we even know some gill-footed crustaceans that will clearly oppose such another man-made, artificial desalination of Sivash. But it is obvious that Russia, responding in the role of an occupying state for at least part of the ecosystems of Sivash, and even actively exploring these ecosystems, did nothing either to discuss the situation with the Ukrainian authorities, or even to change the situation on its own, for example, supplying the Sea of Azov’s water into Sivash.
No less senseless is the statement that “the closure of the North Crimean Canal also affected the quality of water used for household needs and as drinking water, since exceeding the maximum permissible salinity and hardness standards has a negative impact on human health”. It is well-known (and extensively discussed in the Russian sources) that water from the North Crimean Canal was not used for “household needs and as drinking water”, therefore the hardness and salinity of water in the Canal has nothing to do with human health. Let us only recall that the crime of ecocide in the Russian law is defined as “massive destruction of the animal or plant kingdoms”. We hope this is simple ignorance of Russian officials, and they do not consider Crimean residents to be animals, plants or other parts of the wild.
In conclusion, under international law, the occupying power bears responsibility for the ecological state of the occupied territory. If someone in Russia wants to find the real perpetrators of numerous offences against the environment in Crimea, then they should look not for the “unidentified persons” on the territory of Ukraine, but among very well-known persons in Russia and Crimea. In this regard, we advise the Russian investigators to watch the film
“Crimea: Dehydration”, which was created with the participation of experts from the “ARC”. It analyzed the reasons leading to depletion of water resourced of Crimea and the consequences thereof in detail.