[Interview] Asser researcher Stavros Evdokimos Pantazopoulos: 'Ecocide carries a symbolic value'

The screening of environmental hazards in Ukraine confirms that war is toxic to the environment. The Russian military, for instance,  attacked a tank of nitric acid that released a fume of toxic smoke. Russia’s invasion also threatens the nuclear and chemical waste in Chernobyl and Donbas. In this interview, we discuss the application of environmental law in armed conflict with Asser researcher Stavros Evdokimos Pantazopoulos. Pantazopoulos: ‘Current international legal frameworks have the potential to enhance environmental protection in times of conflict, either from the international humanitarian law (IHL) side or from the environment law side. Nevertheless, we still see that the political will is missing.’

What is the focus of your research?
‘My primary focus is the environmental impacts of war. This can be dated back to my doctoral research at the European University Institute in Florence, where I focused on the environmental protection during and after conflict. Prior to joining the Asser Institute, I was hired as a legal and policy analyst for a UK-based NGO, the Conflict and Environment Observatory. There, I had the chance to see how policy and the legal framework in relation to environmental protection in conflict is developing. Following that, I'm conducting postdoctoral research with the Toxic Crimes project at the University of Helsinki, where we explore how lawyers mobilise and shape the discourse around environmental protection in conflict. When I joined Asser earlier this year, I continued my research on the legal dimension of environmental protection in armed conflict. Here, I will be the Managing Editor of the Yearbook of IHL and a co-editor of a book on Ecocide together with colleagues from the University of Amsterdam and the Asser Institute.’

What is your role in the Environmental Peacebuilding Association?
‘I'm a founding member of the Environmental Peacebuilding Association, an organisation that promotes interdisciplinary efforts in environmental peacebuilding. Today, I'm serving my second term as the chair of the law interest group of this association. This association has a diverse membership; you can find policymakers, practitioners, civil society organisations, academics as well as people holding positions in governments or international organisations. The aim of this association is to create a knowledge platform where people interested in environmental peacebuilding share their experiences.’

How would you define ecocide?
‘Ecocide carries a symbolic value. Whenever we speak about ecocide, we associate this term with genocide, which is considered the most serious international crime. There have been various attempts to define it. There are countries with domestic laws in place that stipulate the crime of ecocide and in fact Ukraine is one of these countries. However, we need a universally accepted term. Recently, there was an attempt by the Independent Expert Panel convened by the Stop Ecocide Foundation to draft the definition and the associated commentaries of ecocide in 2021. Some states are also pushing towards recognising ecocide as the fifth international crime in the International Criminal Court Statute. Nevertheless, there are still some elements that need clarification, such as whether ecocide provisions should also apply in peace time. In the same vein, the issue of threshold has proven to be quite controversial. For example, how significant does the environmental harm need to be in order to qualify as ecocide. There’s also the mens rea, the required mental element to commit a crime. Namely, what is the intention and the required type and level of knowledge that the alleged perpetrator should have for their actions to amount to ecocide. But for now, it is up to states to develop this further and agree to a common definition.’

Do you think that current treaties on environmental law are enough in mitigating environmental damage during war time?
‘The existing legal framework definitely has potential. Current international legal frameworks have the potential to enhance environmental protection in times of conflict, either from the IHL side or from the international environmental law side. For instance, IHL treaties and customary IHL can be used as the point of departure. On top of these, we can resort to the continued applicability of multilateral environmental agreements, such as the 2015 Paris Agreement or the 1992 Convention on Biological Diversity.

Nevertheless, we still see that the political will is missing. By means of illustration, NATO recently made a commendable effort in considering climate security and measuring the climate-related impact of its operations. During the June 2022 summit, NATO member states agreed that they should develop a common methodology in order to report their military emissions. But still, they are not willing to publicise this methodology. If this endeavour is still shrouded in secrecy, it will inevitably raise transparency concerns, as reports need to be verified by independent sources in order to be credible.’

Do you think that environmental law for peace time can be applied to war time, and vice versa?
‘As a matter of legal doctrine, the current majority position is that international environmental law is presumed to continue to apply during armed conflict. Back in the day, some states or scholars were against this. Gradually, we realised that multilateral treaties should, in principle, not be suspended when there is an outbreak of hostilities. We see that states who are in conflict with one another still continue to have exchanges and they remain bound by the same treaties. In that sense, many of their contractual relationships continue to apply. This understanding has been further sanctioned by the International Law Commission (ILC) in 2011, namely through its draft articles on the effects of armed conflict on treaties. This instrument provides that peacetime treaties, including multilateral environmental agreements are presumed to continue to apply in times of armed conflict.

This still begs the question to what extent such treaties continue to apply. There are some environmental treaties that specifically contain provisions stipulating that they should not apply in times of war. But then, the vast majority of multilateral environmental agreements offer no indication at all. This is where the presumption I mentioned before kicks in, namely in favour of their continued applicability. However, exigencies of war necessitate a kind of modulated application. During war, belligerent states do not have the capacity to comply with their obligations stemming from these treaties to the same extent as in peacetime. This is where the controversy starts and where more research needs to be conducted. ‘To what extent do these measures continue to apply in times of armed conflict? How do we strike the right balance?’ International legal scholars are increasingly delving into this question. Amongst others, treaties such as the Paris agreement and the Convention on Biological Diversity are examined on whether and how they still apply during armed conflict. Another thing that is missing in this respect is the views of states. At some point, we will also need the decisions of international courts and tribunals to provide guidance. These decisions can also be used by states to inform their views.’

According to the United Nation's Environment Programme, Russia’s attack on Ukraine left several environmental hazards. What is your take on them?
‘Assuming that Russia has indeed violated its international obligations pertaining to environmental protection, various options could be explored to hold Russia accountable. Considerable support has already been voiced for the establishment of a Special Tribunal on the Crime of Aggression against Ukraine. Following the example of the UN Compensation Commission, instituted by the UN Security Council in the early 1990s in the context of the Iraqi invasion and occupation of Kuwait, environmental claims could come within the purview of such a tribunal.

Another option would be to resort to domestic courts, especially Ukrainian courts. For instance, certain criminal cases have already been brought against members of the Russian armed forces and many others are pending. It should be clarified that such cases concern criminal proceedings against individuals, so they could equally concern the alleged perpetration of crimes that caused environmental damage or were perpetrated through the causation of such damage.

So far, we see that Ukraine is very much willing to explore various legal options to hold Russia and the members of its armed forces accountable. To this end, Ukraine has asked for support and advice from the international community. For instance, a coalition of NGOs is already gathering evidence that could be used in future cases concerning the conduct of Russian troops, including cases where environmental damage has been caused. It is quite telling that locals can use an application to report instances of environmental damage. This application tracks down time and date so that the submitted data can be utilised as evidence for future prosecutions.

Furthermore, the ICC could consider instances of wartime environmental damage in the context of this international armed conflict. Ukraine has submitted two declarations conferring jurisdiction to the ICC for crimes occurring on its territory. The Office of the Prosecutor (OTP) could explore the potential perpetration of the environment-specific war crime that is enshrined in article 8(2)(b(iv) of the Rome Statute.  However, the threshold of the prescribed environmental damage stipulated therein is too high, rendering it practically impossible to be applied. Luckily, this is not the end of the story. In a 2016 policy paper, the OTP indicated its willingness to pay particular attention to prosecuting Rome Statute crimes that are committed by means of, or that result in, the destruction of the environment. This is a welcome step, although it remains to be seen in practice, all the more so, given that Russia is not likely to hand over any of its troops.’

About Stavros Evdokimos Pantazopoulos
Dr Stavros Evdokimos Pantazopoulos is a researcher in international law within the research strand A: ‘In the public interest: accountability of the state and the prosecution of crimes’. Stavros is also a post-doctoral researcher with the Toxic Crimes Project of the Erik Castrén Institute at the University of Helsinki, a Teaching Fellow with the University of Amsterdam, and a Fellow of the Athens Public International Law Center. He is a founding member of the Environmental Peacebuilding Association and the Chair of its Law Interest Group. Stavros is a member of the World Commission on Environmental Law and an editor of the European Journal of Legal Studies. His research focuses on the legal aspects of environmental protection during and after armed conflict.

Advance your knowledge on international criminal law
As part of the Asser Nexus on conflict and crime, the Asser Institute maintains an International Crimes Database (ICD).  This database offers a comprehensive database on international crimes adjudicated by national, as well as international and internationalised courts. In addition to case law on international crimes, the website incorporates general background information about international crimes, scholarly as well as news articles, working papers (ICD Briefs), videos, and relevant links to other useful databases/websites on this topic. The database is not limited to the international crimes beyond dispute (genocide, war crimes, crimes against humanity and aggression), but also offers case law on crimes such as piracy, terrorism and torture. View the database.

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Dr Stavros Evdokimos Pantazopoulos