14 Sep The Slow Effects of the War in Ukraine and International Law
[Patricio Barbirotto is a research fellow and adjunct professor of international law at Ca’ Foscari University of Venice]
The awareness of the environmental damages provoked by armed conflicts has constantly been increasing after the bombing of Hiroshima and Nagasaki in 1945, and in particular since the Vietnam War. The invasion of Ukraine by the Russian Federation on 24 February 2022, occurred in a moment, after the Covid-19 pandemic, during which the whole International Community, and in particular Europe, was taking some serious steps in tackling environmental damages in an attempt to stop, or at least to slow down, climate change. In this light, the attention to the environmental impacts of the war in Ukraine has been obviously huge since the beginning. For example, the changes in air pollution, and the destruction of the Kakhovka dam received great attention, both from scholars and the media. Most of the attention was focused on the destructive events themselves, and on their immediate or rather short-term consequences, given that the priority has always been restoring peace as soon as possible.
The Invisible Effects of the War in Ukraine
Nevertheless, as it is often (if not always) the case when it comes to environmental damages, the negative outcomes are here to stay for long time, perpetuating their effects for years or even for decades after the initial event. To some extent, the war in Ukraine will continue to affect people’s lives even when the armed confrontation will be over. Indeed, it is likely that the country will fall into a permanent state of emergency due to the slow-onset negative events: while war, the event at the origin of the damages, is not slow at all, it leads to a number of events which may produce their final, tremendous effect in years from now. This may happen sometimes even after reconstruction if the issues are not addressed properly.
Two prominent long-term, slowly-developing consequences of the war in Ukraine can be identified. The first concerns the environmental repercussions of the fighting. While it is widely recognized that warfare leads to environmental degradation which has a potential long-term impact on human health, the direct correlation between these damages and future concerns, such as food security, is not clearly investigated. Ukraine holds a significant position as a global producer and supplier of cereals, as evidenced by the recognition and significance attributed to the “grain deal” by the International Community. However, the potential consequences on global food security in the foreseeable future are expected to be influenced by a range of factors, including soil and water contamination, as well as other war-related effects including infrastructure destruction and the impact of industrial activities such as the production and the availability of fertilizers. The second, less obvious, enduring consequence of the conflict in Ukraine pertains to the societal changes, which in this scenario of ecological distress will play a role on the future evolution of the social and economic ramifications resulting from the commencement of hostilities on 24 February, 2022. Consequently, a significant proportion of individuals, predominantly women and children, have been compelled to escape from their residences, resulting in widespread internal and international displacement. Simultaneously, a substantial number of males were conscripted into the Ukrainian Army, resulting in notable casualties and impairments among this demographic cluster. The potential ramifications of such a pronounced gender disparity could have unforeseeable effects on Ukrainian society and economy, as well as on the realization of rights for Ukrainian citizens, not only in the immediate post-war period but also in the years following the cessation of hostilities.
Such statements are immediately apparent to scholars and practitioners in disciplines such as economics and sociology, fields that are actively engaged in the post-conflict reconstruction efforts. However, things appear more problematic when it comes to legal science, a fundamental pillar of international relations and in building the post-war society. The imperative to address the aforementioned concerns in legal terms is crucial, as it serves the dual purpose of facilitating post-conflict reconstruction efforts and ensuring a fair and just resolution for the victims involved. Thus, it might be argued that, given the nature of the entire matter and the features of traditional international law, a fresh legal perspective is required (as suggested in this work by prof Sara De Vido). In the case of the war in Ukraine, the primary legal obstacle lies initially in determining the attribution of international responsibility, followed by the pursuit of reparation or, more broadly, the attainment of justice for those affected by the protracted and gradually- and slowly-developing consequences of the international wrongful act.
Slowly-developing Effects and International Responsibility
Following the conclusion of the war, a significant challenge will involve establishing a connection between the aforementioned harms and the international responsibility of the Russian Federation. The issue of reparations holds significant importance, particularly in relation to the concept of holding the aggressor responsible for potential future losses resulting from their actions, rather than solely addressing the immediate damage. This approach would represent a significant change in the field of international law. The traditional idea of compensation in the field of international law, which has been in place since the Alabama Claims case in 1872, typically limits the granting of reparation to instances where there is a direct prejudice resulting from an internationally wrongful act. This implies that indirect damages are, in general, excluded from coverage: a matter of significant significance in relation to the provision of compensation. The granting of indirect damages has traditionally been contingent upon the establishment of a direct causal relationship between the international wrongful act and the damages in question. This post deals with actions that can be categorized as long-term, slowly-developing, wherein damages are often indirect by nature. The identification of a clear causal relationship between Russian aggression, subsequent wrongful acts in the armed conflict, and the negative outcomes that will manifest in the future, such as five or ten years or even longer, is exceedingly complex. Still, it is imperative to acknowledge the causal relationship, and not to run the risk of oversimplifying an eventual compensation mechanism. It is in fact crucial to exercise caution, as there is a potential risk that attributing all adverse situations in post-war Ukraine solely to Russian aggression may oversimplify the complex array of negative phenomena.
In order to address the long-term, slowly-developing effects of the Ukraine war from the perspective of international legal responsibility, it is necessary for those responsible for deciding on said effects to assess the prejudice resulting from internationally wrongful acts of war. This assessment should not only consider traditional consequences of a conflict, but also take into account its long-term implications. To facilitate this evaluation, it may be beneficial to establish an ad hoc body specifically dedicated to this purpose. The utilization of current methods and bodies seems inadequate given the specific characteristics of the prejudice in question and of the existing bodies and mechanisms. The ad hoc body should consider allowing private individuals to submit claims, as the consequences can be observed at both a macro level (such as, for instance, the Ukrainian government filing claims regarding soil pollution that negatively impacts strategic food production) and, more importantly, being human rights concerned, at an individual level. For instance, individuals may submit claims related to diseases caused by water pollution that they develop in the coming years. At first sight, it appears that while individual claims may contribute to a heightened perception of justice, fairness and efficacy, state claims may demonstrate higher effectiveness in achieving a favourable resolution.
An illustrative instance of a prospective dispute resolution entity can be found in the Iran United States Claims Tribunal, despite its lack of association with an international military conflict. The Tribunal in question had a limited window of around six months during which claims could be submitted, a duration that is evidently inadequate for evaluating the long-term consequences that arise from an international unlawful act. However, it is imperative to acknowledge that the establishment and operation of a long-term international claims tribunal would entail certain drawbacks. These include exorbitant expenses and the potential dismissal of numerous claims due to the challenges, or even the infeasibility, of establishing a causal wrongful act-prejudice link many years after the occurrence of the events in question. The feasibility of the remedy proposed by the Iran United States Claims Tribunal may therefore not be viable, thereby necessitating the exploration of alternate possibilities.
An interesting point which those receiving the claims will have to face is that, in the event of long-term effects, international responsibility should rest only on the aggressor, i.e., on the Russian Federation or if also Ukraine, in exercising their right to self-defence, can be accounted responsible for potentially wrongful acts leading to long-term, slow-development related outcomes.
Ultimately, once the responsibility has been established, the subsequent obstacle lies in accurately determining the compensation provided to the individuals affected. Once again, the primary challenge lies in establishing the causal connection between the illegal act and the resulting prejudice. As previously mentioned, the traditional notion of compensation for international misconduct restricts compensation to direct damages and those that can be directly linked to the wrongful act that caused the harm. When a decade has passed since the occurrence of a wrongful act and subsequent damage, the task of quantifying the specific amount of damage directly attributable to the original wrongful act becomes highly challenging. This difficulty arises due to the presence, for instance, of additional intervening circumstances that occurred between the time of the wrongful act and the assessment of the resulting harm, despite the existence of a discernible causal link. For instance, in the context of food security, determining the exact proportion of damages resulting from reduced cereal production in Ukraine that can be attributed to soil pollution or water scarcity caused by the war, as opposed to other future factors like climate change, presents a challenging task with limited quantifiability.
The war in Ukraine has distinctive characteristics, notably its occurrence in the aftermath of the COVID-19 epidemic. This global health crisis has brought about significant changes to the world order and has prompted a heightened awareness of other pressing issues, such as climate change and environmental degradation. Furthermore, the ongoing armed conflict in Ukraine takes place at a significant juncture in history, wherein there is heightened focus on human rights and the impact of international events on individuals, particularly Europe, the region where the conflict is unfolding. Given the aforementioned circumstances, it is important to acknowledge the long-term, slowly-developing negative consequences of the war. Consequently, it becomes essential to incorporate the phenomenon into the framework of international legal theory pertaining to international responsibility and reparation. Although it is imperative to adhere to a stringent methodology that relies on establishing a direct causal connection between the unlawful conduct and the resulting harm, it is evident that excluding certain adverse consequences of the conflict from the purview of compensation mechanisms would be highly unsatisfactory. While the feasibility of implementing a claims tribunal may be questionable at present, it is fundamental for the International Community to acknowledge the potential, if not inevitable, occurrence of gradual war damages while deliberating and determining peace terms and reparations. From this perspective, it is conceivable to consider the inclusion of a dedicated fund within the reparations framework to address the long-term consequences of the conflict. These consequences may not be immediately apparent, but are currently “in the making” and are expected to manifest in significant and detrimental ways in the coming decade. The proposed fund, feasible within the existing legal framework, although under a new perspective, is far from perfect but aims to address the today invisible consequences of present-day Russian aggression and prevent the disregard of future suffering, while also providing the victims with a measure of access to justice.