This is not easy to admit for anyone who, like me, strongly believes in the Rule of Law, but my sentiment is that the most common and biggest obstacle to the prosecution of the environmental consequences of the war is the law. The law is not adapted.
Maud Sarliève is an established expert in International Criminal Law, International Humanitarian Law, Human Rights, and a leading authority in the development of creative legal thinking to address the environmental and climate crisis. Over the last 20 years, Maud has led and coordinated multicultural teams and operational projects involving various legal systems. Her professional commitments and casework have taken her to conflict and post conflict environments in Southeast Asia, the Middle East, Central and East Africa, Latin America, the Balkans, and Eastern Europe. As part of the EU Project Pravo-Justice, she currently advises the Office of the Prosecutor General in Ukraine on the investigation and prosecution of war crimes impacting the environment.
Interview by Maria Francisca Gonçalves (2023)
The interview was conducted in the spring of 2023 and has been edited for clarity
What does it mean to advise the Office of the Prosecutor General in Ukraine on the investigation and prosecution of war crimes impacting the environment? What does your day-to-day look like?
My advising role with the Office of the Prosecutor General in Ukraine is not isolated. I work with a project called Pravo Justice, which has been operating in Ukraine for many years. The Project is funded by the EU and managed by Expertise France. One of its components belongs to the Atrocities Crimes Advisory Group (ACA). The ACA Group was created in May 2022, a few months after the beginning of the full-scale war, as part of a broader commitment of the EU, the US, and the UK to support Ukraine.
The ACA group includes a small group of experts, with legal, technical and scientific skills, who advise the Office of the Prosecutor General specifically on the environmental impact of the conflict. The damages caused are enormous, with potentially severe, widespread and long-term impacts on the quality of the air, water, soil or farmland.
As for the day-to-day work, one of the great things about my current role is that not one day looks like the other. I work in close interaction with my Ukrainian counterparts - investigators, prosecutors, technicians – and assist them on the challenges attached to the investigations and prosecutions of war crimes impacting the environment, by providing advice on issues of law, evidence, and strategy. I want to insist on the word “assistance.” My role is not an executive one. Investigations and prosecutions are led by Ukrainian investigators and prosecutors, as they should be.
Are there any gender-specific war crimes that are exacerbated by the impacts of climate change and the environmental impacts of conflict?
Before I answer your question, it is important to clarify that my advising role applies to the prosecution or investigation of the environmental impact of the conflict, not its climate impact - or at least not for now. There is an important difference between climate litigation and environmental litigation. A simple way to explain it is that climate litigation, regardless of the legal basis selected, requires a connection with greenhouse gas emissions. Environmental litigation does not.
Of course, this doesn’t mean there aren’t any overlaps between the two. Let’s take the example of an oil spill. The resulting pollution invariably causes environmental disasters. If these consequences are litigated, the corresponding proceedings can be civil, administrative, criminal, or all of the above depending on the case and the competent jurisdiction. What about the climate aspect in such cases? Oil spills involve fossil fuels and fossil fuels contribute to greenhouse gas emissions, so why not kill two birds with one stone and try to hold those responsible for the oil spill also responsible for global warming? Asking the question is answering it: climate change could hardly be attributed to one isolated individual for one isolated oil spill. The causes and effects of global warming are not the causes and effects of a particular oil spill and each oil spill has its own set of causes and effects, with its own set of applicable laws and procedures and its own specific legal and scientific issues.
You asked me about gender-specific war crimes involving environment and climate. This is not an easy question, which calls for another series of clarifications. The environmental damages caused by a conflict are very difficult to measure, particularly when the conflict is still ongoing. Their nature and scope largely depend on the circumstances of each conflict the weapons used, the climate, geography, relief, fauna and flora in the area, etc... Indeed, the circumstances and therefore, the impacts will not be the same in Armenia, Yemen, Palestine, Syria, Iraq, Colombia, or the Democratic Republic of Congo, to name only a few. Take the example of the situation in Darfur, where the ICC Prosecutor issued an arrest warrant against al-Bashir in 2010 on genocide charges. One of the factual grounds supporting the genocide charges was that local militias had poisoned the water wells, thus inflicting on the local communities conditions of life likely to bring about their physical destruction. Everyone in these local communities was affected but those most vulnerable were in all likelihood impacted first - women and children, but also the elderly, disabled or sick people, regardless of their gender. In other words, environmental destruction or degradation, directly or indirectly, affects everyone, immediately or at a later stage, in one way or another. And sadly, as is too often the case, those most vulnerable are the ones that pay the dearest price. The same applies in Ukraine.
In your professional experience, what would you say are the common obstacles in these contexts you just referred to prosecuting war crimes that have environmental consequences?
This is not easy to admit for anyone who, like me, strongly believes in the Rule of Law, but my sentiment is that the most common and biggest obstacle to the prosecution of the environmental consequences of the war is the law. The law is not adapted.
First, the ICC Rome Statute. It will not have escaped your attention that its provisions are intrinsically anthropocentric: the only one that deals with environmental damages is Article 8(2)(b)(iv). Its threshold is so high that, arguably, even the consequences of the nuclear attacks against Nagasaki and Hiroshima wouldn’t have satisfied the criteria required under this article. Indeed, it could be argued that the principle of proportionality was respected, given the military advantage these attacks brought to the forces that used the nuclear weapon.
Second, the Geneva Conventions and their Additional Protocols I and II. Additional Protocol I contains two articles, 35(3) and 55, defining where and when damages to the natural environment in times of conflict are prohibited. It is important to note, however, that this Additional Protocol and its provisions apply exclusively to international armed conflicts. If we take the example of the situation in Darfur again, where environmental degradation and competition over resources were some of the key factors of the conflict. This conflict was non-international. Additional Protocol I was therefore not applicable. Only Additional Protocol II applies to non-international armed conflict, and it does not contain provisions regarding the environmental impact of a conflict. In any event, the threshold defined in articles, 35(3) and 55 of Additional Protocol I is also high.
This might be one of the reasons why there is hardly any case law, which is, by the way, a third obstacle to the correct application of these provisions, for which there is no guidance as to the correct interpretation of their elements. The only case law that discusses the environmental impact of the conflict is mostly indirect and comes from the Nuremberg tribunal, with the Hostage Case, the IG Farben Case, and the Flick Case, through their developments on the application of pillage and destruction of property to environmental destruction or degradation. Perhaps the current efforts of the Ukrainian Prosecutors will lead to a change in this status quo.
Before we finish, is there anything you would like to mention or address as a final comment?
What really strikes me, at this point in time, is the growing interest in these issues. In the last few weeks and months, this interest has expanded far beyond the “usual” activism, with policy, law-makers, and the judiciary showing increasing support. These developments are very positive and pave the way for further steps to address the obstacles I just mentioned. Political and judicial will are decisive to ensure the adaptation of the law to the environmental and climate crisis we are facing.
Most people do realise, now, that environmental destruction impacts not only the direct victim but also his or her children, family, friends; and not only today, but also for the rest of their lives and the lives of the generations to come. And in a way that could perhaps be compared to the impact of sexual violence. This is why, in my view, environmental degradation caused by conflict should also be treated as a priority. I have the strong impression that Ukraine, its Investigators and Prosecutors are determined to act in this direction. Another reason to provide our support.
About the interviewer: Maria Francisca Gonçalves is a recent Master’s graduate in International Security from Sciences Po Paris who concentrated in Diplomacy and Middle Eastern studies. She is passionate about gender transformative projects and humanitarian research. She has also received the PRESAGE Advanced Certification in Gender Studies