CIVIL LIABILITY FOR WARTIME ENVIRONMENTAL DAMAGE: ADAPTING THE UNITED NATIONS COMPENSATION COMMISSION FOR THE IRAQ WAR Keith P McManus. Boston College Environmental Affairs Law Review. Newton: 2006.Vol.33, Iss. 2; pg. 417, 32 pgs » Jump to full text » This article cannot be translated due to its length. » More Like This - Find similar documents Subjects: Environmental impact, Endangered & extinct species, Environmental liability, War, Iraq War-2003, International law Author(s): Keith P McManus Document types: Commentary Document features: References Publication title: Boston College Environmental Affairs Law Review. Newton: 2006. Vol. 33, Iss. 2; pg. 417, 32 pgs Source type: Periodical ISSN: 01907034 ProQuest document ID: 1033309331 Text Word Count 8356 Document URL: http://0-proquest.umi.com.oswald.clark.edu:80/pqdweb?did=1033309331&sid=3&Fmt=4&clientId=11109&RQT=309&VName=PQD Abstract (Document Summary) There is little doubt that war has a deleterious effect on the natural environment of battlegrounds. Customary principles of international law, as well as more formal instruments such as treaties, address wartime environmental protection. An analysis of these mechanisms reveals that they are inadequate to ensure protection and restoration of environmental resources damaged during war. Thus, a mechanism is needed for assessing civil liability against nations for any wartime environmental damage. The United Nations Compensation Commission (UNCC), created to compensate victims of the Persian Gulf War, is a mechanism that if modified could fill this void. This Note focuses on the modifications that could make the UNCC a successful mechanism for assessing civil liability for wartime environmental damage. Further, this Note applies the adapted UNCC to the Iraq War, and examines whether U.S.-led coalition forces should be held civilly liable for damage to Iraq's natural environment. [PUBLICATION ABSTRACT] Full Text (8356 words) Copyright Boston College, School of Law 2006 [Headnote] Abstract: There is little doubt that war has a deleterious effect on the natural environment of battlegrounds. Customary principles of international law, as well as more formal instruments such as treaties, address wartime environmental protection. An analysis of these mechanisms reveals that they are inadequate to ensure protection and restoration of environmental resources damaged during war. Thus, a mechanism is needed for assessing civil liability against nations for any wartime environmental damage. The United Nations Compensation Commission (UNCC), created to compensate victims of the Persian Gulf War, is a mechanism that if modified could fill this void. This Note focuses on the modifications that could make the UNCC a successful mechanism for assessing civil liability for wartime environmental damage. Further, this Note applies the adapted UNCC to the Iraq War, and examines whether U.S.-led coalition forces should be held civilly liable for damage to Iraq's natural environment. INTRODUCTION The effects of war extend well beyond the destruction of strategic targets; civilian casualties are a devastating byproduct of inaccurate weaponry and military intelligence. Beyond human casualties, however, war also has a significant detrimental effect upon a nation's natural environment What international law provisions exist to protect the environment from wartime degradation? Can a nation be held civilly responsible when potentially irreplaceable environmental resources are damaged or destroyed during combat? This Note will address these questions, viewing the latter through the lens of the Iraq War, also known as Operation Iraqi Freedom, that commenced in March 2003. Part I of this Note will examine historical impacts of warfare on the natural environment, including the current Iraq War. Part II will focus on the customary principles of international law governing war. Part III will address the current international environmental law provisions concerning war and environmental degradation. Part IV will examine the possible civil liability schemes for environmental damage incurred during war. Part V will focus on adapting the United Nations Compensation Commission (UNCC) to create a framework for civil compensation for environmental damage caused by war that can be applied to modern conflicts, particularly the Iraq War. Finally, Part VI will apply the adapted UNCC framework to the Iraq War as a method of holding U.S.-led coalition (Coalition) forces civilly liable for environmental degradation caused during the war. This Note is not intended to offer a critique of the motives or necessity of die Iraq War, but rather addresses state responsibility for actions during war that damage a nation's valuable natural environment. I. THE IMPACT OF WAR ON THE ENVIRONMENT A. Historical Overview of the Impact of War on the Environment The effects of war on the environment-whether as an unintentional byproduct of conventional warfare or a deliberate act to gain strategic advantage-are both catastrophic and well-catalogued.1 In 146 B.C., the Romans salted the fields of Carthage to make the land useless for agricultural production.2 The United States' use of atomic bombs on the Japanese cities of Hiroshima and Nagasaki at the end of World War II produced widespread environmental devastation,3 and exposed the environment to high levels of radiation.4 In the Vietnam War, the United States employed substances such as Agent Orange, which resulted in deforestation and destruction of vegetation.5 The growth of the environmental movement in the late 1960s and early 1970s expanded public consciousness of the environmental effects of certain warfare techniques.6 Despite this new awareness, however, war has continued to have disastrous effects on the natural environment. B. The Current Situation: The Persian Gulf War and Beyond In 1991, Iraq, under the control of Saddam Hussein, invaded neighboring Kuwait, beginning the Persian Gulf War and a series of environmental catastrophes.7 Iraq pumped up to 4 million barrels of oil into the Persian Gulf, endangering marine wildlife, migratory birds, and the fishing industry.8 In addition, Iraq set hundreds of Kuwaiti oil wells ablaze, spewing carcinogenic smoke that lowered temperatures and resulted in "black rain."9 The total impact of Iraq's military action on the natural environment is difficult to estimate.10 So far, twelve nations have submitted claims to the United Nations (U.N.), estimating the cost of environmental damage from the Persian Gulf War at $79 billion.11 More recently, U.S.-led air strikes in the former Yugoslavia resulted in environmental damage.12 Operation Allied Force, under the aegis of the North Atlantic Treaty Organization (NATO), caused environmental degradation through the bombing of industrial fuel and chemical plants.13 In one instance, air strikes resulted in the release of "2,100 metric tons of ethylene dichloride . . . and 200 kilograms of metallic mercury" which polluted soil, a canal, and the Danube River.14 More current and relevant to this analysis is the Iraq War, commenced by forces in March 2003.15 There is concern that the Iraq War will have a significant effect on Iraq's environment and water and could result in destruction of endangered species.16 Furthermore, the use of weapons that contain uranium by U.S. forces could result in widespread environmental contamination.17 At the beginning of the Iraq War, a group of two hundred lawyers and scholars from fifty-one nations sent a letter to U.N. Secretary-General Kofi Annan, warning of the possibility of "massive . . . environmental destruction."18 Former U.N. Chief Weapons Inspector Hans Blix said of the impending Iraq War: "To me the question of the environment is more ominous than that of peace and war."19 Another concern with the Iraq War from an environmental destruction standpoint is the protection of archaeological and culturally significant artifacts, which are often included in a broad definition of "the environment."20 Reports have indicated that the Iraq War has caused damage to some of Iraq's most ancient artifacts, including the Ishtar Gate, which sustained damage when U.S.-led troops were based in the historic city of Babylon.21 In March 2003, the U.N. Environment Programme (UNEP) issued the Desk Study on the Environment in Iraq.22 The stated purpose of the Desk Study was to aid in "tackling the immediate post-conflict humanitarian situation in Iraq."23 Among the "environmental impacts and risks" of the Iraq War discussed in the Desk Study were, inter alia, disruption of power and water supplies, waste management and disease, burning oil wells, bomb damage, damage to industrial sites, and physical degradation of ecosystems.24 In addition, the Desk Study indicates that as of April 15, 2003, the U.S.-led "coalition air forces had used 18,275 precision-guided munitions . . . and around 8,975 unguided munitions."25 The eight hundred Tomahawk cruise missiles used in the Iraq War as of April 12, 2003 were more than twice the amount used throughout the duration of the Persian Gulf War.26 II. THE CUSTOMARY LAW OF WAR AND ITS RELATIONSHIP TO WARTIME ENVIRONMENTAL DEGRADATION As shown by the examples listed above, the environment is at risk during wartime.27 But what international law mechanisms exist to govern the conduct of nations during wartime? How can these mechanisms be applied to determine whether or not the military actions of a nation that result in environmental destruction are lawful? A. Customary Principles of the Law of War The law of war provides four customary principles that can be applied to an environmental analysis: necessity, proportionality, discrimination, and humanity.28 These general principles are drawn from the Hague Convention, signed in 1907.29 Under the customary principle of necessity, a nation may use any amount of force necessary to defeat the enemy, so long as those techniques are legal under the laws of war.30 One commentator summarizes this principle as "each destructive act must be connected to the submission of the enemy."31 This principle would seem to afford nadons a wide degree of discretion for choice of military action, as one could argue that destruction of the natural environment is necessary for the defeat of the enemy.32 This principle, however, must be balanced against the remaining three customary principles.33 The customary principle of proportionality serves to mitigate the principle of necessity by requiring that military actions or weaponry not cause excessive destruction or loss of life when compared to the military advantage sought by the action.34 The principle of proportionality is perhaps the most effective principle to apply to an environmental analysis. For example, it is obvious that the Roman's salting of fields and the Iraqi's intentionally causing an oil spill would be illegal because the destruction caused by the acts is excessive when compared to the pursued military advantage.35 The customary principle of discrimination holds that militaries must distinguish between military and civilian targets, and use appropriate weapons that are capable of this type of discrimination.36 Under this principle, it is illegal to attack nonmilitary targets, such as environmental resources like forests and bodies of water.37 The humanity principle is embodied in the notion that "[m]ilitary forces at war must... take all possible measures to avoid unnecessary suffering."38 Much of the environmental degradation that results from warfare, such as the use of biological weapons or contamination of the natural environment creates unnecessary human suffering.39 Historically, the humanity principle only applied to human suffering, and therefore, those environmental harms that affected human suffering.40 Following Iraq's actions in the Persian Gulf War, some have suggested that the international community has shifted to a wider view of unnecessary suffering in applying the humanity principle.41 These general customary principles of the law of war were not developed to protect the environment during wartime; however, the breadth of the principles can be applied to evaluate the actions of a nation to determine whether or not a military action that results in environmental degradation is lawful under the international law of war.42 B. The 1907 Hague Convention In addition to the customary principles of the law of war, official treaties that codify general laws of war can be applied to the area of wartime environmental protection.43 First among these treaties is the Hague Convention of 1907, which is an early example of a binding law of war.44 The provision of the Hague Convention that seems most applicable to environmental protection is Article 23(g), which states that it is unlawful "[t]o destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war."45 There are many legal traditions, including the public trust doctrine,46 and old English cases like Keeble v. Hickeringill, that consider natural resources to be property.47 Under this viewpoint, Article 23 (g) would stand as a strong, binding international law prohibiting the destruction of the environment during war unless imperatively necessary.48 However, it is this very clause that makes Article 23 (g) somewhat .problematic in affording protection against environmental destruction.49 The clause requires that military conduct be balanced against the principle of necessity, which could trump environmental concerns in many instances.50 C. The Geneva Convention of 1949 The Geneva Convention of 1949(51) is very similar to the 1907 Hague Convention in scope and application to environmental protection.52 Like the Hague Convention, Article 53 of the Geneva Convention forbids an occupying force from destroying any type of property, except when "absolutely necessary."53 In terms of environmental protection, the Geneva Convention has the same limitation as the Hague Convention, in that there is a built-in recognition of military necessity.54 The Geneva Convention is even less useful for environmental protection because its stated purpose is "to protect a strictly defined category of civilians from arbitrary action on the part of the enemy," which tends to limit the expansion of Article 53.55 III. INTERNATIONAL ENVIRONMENTAL LAW AND WAR A. International Instruments Respecting War and the Environment The customary principles of the law of war and the two binding conventions discussed above are important because they represent the basic underpinnings of the law of war.56 However, these principles are limited in application to environmental protection during wartime because they were not drafted with the intention of being applied to the environment.57 In 1977, this all changed with the introduction of the word "environment" into the international law of war.58 1. Protocol I to the Geneva Convention Protocol I to the Geneva Convention59 was the first formal international law of war document to use the word "environment."60 Although Protocol I has not been ratified by the United States, its provisions concerning the environment "have been officially cited by the United States."61 The relevant portions of the document specifically address wartime environmental degradation and the associated weaponry.62 The three relevant sections of Protocol I are Articles 35(3), 55, and 56.63 Article 35(3) states that "[i]t 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."64 Article 55, entitled "Protection of the Natural Environment," states that "[c]are shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage" and "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... .65 Article 56, though not aimed specifically at environmental protection, could help to avoid significant environmental damage.66 Article 56 seeks to protect public works and installations that could have disastrous environmental results if destroyed, "namely dams, dykes and nuclear electrical generating stations."67 Article 56, however, is limited because it does not include industrial facilities, and therefore, does not prohibit the kind of environmental destruction that occurred during Operation Allied Force in the former Yugoslavia.68 Although the use of the term "natural environment" is a promising and noteworthy development in the body of the law of war,69 other phrases in these articles of Protocol I have proven troublesome.70 Both Articles 35(3) and 55 only prohibit damage to the natural environment that is "widespread, long-term and severe."71 The Department of Defense has stated that "[d]uring . .. negotiation [of Protocol I], there was general agreement that one of its criteria for determining whether a violation had taken place ("long term") was measured in decades."72 Based on this definition of "long-term" the Department concluded that it was unclear whether the environmental damages caused by Iraq in the Persian Gulf War "would meet the technicallegal use of that term in Protocol I."73 The Defense Department's interpretation is in spite of the fact that the damage was "severe in a layman's sense of the term."74 Another phrase of concern is "intended or may be expected" in Article 55.75 The inclusion of these terms means that there is no prohibition on collateral environmental damage when it is not intended or expected-the most likely kind of damage to occur during war.76 This narrow reading on the prohibition of environmental damage in Protocol I is supported by a Department of Defense report which states that "[t]he prohibitions on damage to the environment contained in Protocol I were not intended to prohibit battlefield damage caused by conventional operations . . . ."77 Protocol I to the Geneva Convention represents an important development for the recognition of the need for environmental protection during war, but it is greatly limited in its application and "lack[s] strength due to vague and uncertain wording."78 2. The Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques Another international law mechanism that makes explicit reference to environmental protection during war is the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD).79 The purpose of ENMOD-which was drafted in response to the use of deforestation chemicals by the United States in Vietnam80-is to prohibit environmental modification for hostile purposes.81 The significance of ENMOD is apparent when compared to the wording of Protocol I.82 Article I of ENMOD prohibits any party to the treaty from "hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury...."83 While ENMOD contains the same adjectives-"widespread," "longlasting," ("long-term" in Protocol I) and "severe"-as Protocol I, ENMOD uses "or" instead of "and" in connecting these terms.84 This creates a more stringent prohibition, since any environmental modification that results in widespread, long-lasting, or severe effects would be prohibited, as opposed to Protocol I, which requires tiiat all three criteria be met85 Also of importance is the fact that ENMOD does not provide an exception for military necessity.86 Despite these important differences between ENMOD and Protocol I, critics suggest that ENMOD is not likely to curtail environmental degradation caused by war.87 One major criticism is that ENMOD is limited by the fact that it prohibits environmental modification techniques only, and does not forbid conventional warfare tactics that damage the environment as a byproduct.88 Critics have suggested that ENMOD, therefore, prohibits "the kinds of methods used by villains in science fiction rather than conventional warfare,"89 since the environmental modification must be a "deliberate manipulation of natural processes-the dynamics, composition or structure of the earm ... .90 Therefore, ENMOD's significance is rooted in the fact that it is the first international treaty to come into existence for the sole purpose of environmental protection during war, rather than for its practical effect on the wartime conduct of nations.91 3. Rio Declaration Another international document that addresses environmental degradation that results from war is the Rio Declaration on Environment and Development of 1992.92 The Rio Declaration was a followup to the Stockholm Conference on the Human Environment of 1972,93 which was the first U.N. Conference that dealt solely with the environment.94 Unlike Protocol I and ENMOD, the Rio Declaration is a nonbinding document.95 Nevertheless, it was negotiated and agreed to by 176 nations, and represents an "important example of the use of soft law instruments in the process of codification and development of international law."96 Most applicable to the issue of war and the environment are Principles 23 and 24 of the Rio Declaration.97 Principle 23 states, "[t]he environment and natural resources of people under oppression, domination and occupation shall be protected."98 Principle 24 states, "[w]arfare is inherently destructive of sustainable development. States shall therefore respect international law providing protection for the environment in times of armed conflict and cooperate in its further development, as necessary."99 Although these principles are nonbinding, some commentators consider them to be valuable instruments.100 Most noteworthy about Principle 23 is that it establishes "an absolute right to environmental protection and not one balanced by the needs of the belligerent parties."101 In this way, it sidesteps the pitfall of military necessity that so dominates customary principles of the law of war and the early treaties.102 Furthermore, Principle 23 recognizes oppression and domination-likely the predominant nature of hostilities in the modern age.103 Principle 24 is significant because it recognizes the need to further develop international wartime environmental protection law, although it does not give any specific guidance.104 4. Red Cross Guidelines Another nonbinding international wartime environmental protection document that could be useful in determining breaches of international law is published by the International Committee of the Red Cross.105 Entitled Guidelines for Military Manuals and Instructions on the Protection of the Environment in Times of Armed Conflict, the publication states that wartime environmental degradation which is not necessary is a breach of international humanitarian law and is punishable as such.106 The Guidelines list a series of prohibited acts within environmental degradation, including deforestation, and destruction of civilian objects or historic monuments.107 The Guidelines are a compilation of existing international environmental laws.108 This is noteworthy because the Guidelines "translate often vague international norms into daily practice."109 As a result, the bulk of international environmental protection law should be incorporated into the military operations manuals of all nations, raising the possibility that environmental war crimes could be successfully enforced at law.110 5. Draft Articles on State Responsibility In 1996, the International Law Commission adopted Draft Articles on State Responsibility.111 The purpose of the Draft Articles is to codify rules on state responsibility for wrongful acts, beginning with the principle that "every internationally wrongful act of a State entails the international responsibility of that State."112 Most applicable to an environmental analysis is Article 19(3) (d) of the Draft Articles that states "an international crime may result . . . from . . . a serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment."113 The importance of this provision is rooted in the fact that it "is one of the few international agreements . . . that demonstrated a willingness to criminalize environmental degradation."114 B. Possible Criminal Enforcement Mechanisms for War-Related Environmental Damage As evidenced from the discussion of international law, enforcement is a difficult proposition, especially given the limited number of courts that would hear "environmental war crimes" cases.115 For example, despite the well-documented environmental harm committed by Iraq in the Persian Gulf War, no international tribunal took any steps to prosecute the acts as environmental war crimes.116 1. International Court of Justice One possible enforcement mechanism is the International Court of Justice (ICJ), established as the judicial body of the U.N. through its charter.117 Under Article 93 of the U.N. Charter, all members of the U.N. are automatically parties to the Court.118 Although the ICJ is equipped to hear environmental war crimes cases, it is unlikely that it ever will.119 Under the rules that govern the ICJ, no claims can be heard or adjudicated unless the nation against which the claim is being brought consents to the jurisdiction of the ICJ.120 Therefore, the ICJ is not an effective mechanism for enforcing environmental war crimes because it is unlikely that any nation would consent to jurisdiction.121 2. International Criminal Court Another possible enforcement mechanism for liability for wartime environmental degradation is the newly formed International Criminal Court (ICC).122 Organized pursuant to the Rome Statute, the ICC is the first international criminal tribunal.123 Though not organized with the intention of prosecuting environmental crimes, the Rome Statute includes a reference to environmental degradation in its list of justiciable offenses.124 Specifically, Article 8 of the Rome Statute includes "[i]ntentionally launching an attack in the knowledge that such attack will cause incidental . . . widespread, long-term and severe damage to the natural environment" among its catalog of "war crimes."125 Similar to the ICJ, it is unlikely that the ICC will be an effective tribunal for prosecuting environmental crimes.126 Despite the inclusion of environmental damage in the list of war crimes, the Rome Statute has "either a high threshold for the crime or incorporates a military necessity balancing test."127 Therefore, it is unlikely that environmental damage caused by conventional warfare would be punishable, although some of Iraq's actions in the Persian Gulf War may fall within the ambit of the Rome Statute.128 The unlikelihood of the ICC as an enforcement mechanism for wartime environmental damage "runs counter to the thinking that international humanitarian law may offer the possibility of an effective response to wartime environmental destruction."129 The ICC is also hampered by the fact that not all nations are, or will likely ever be, parties to the Court-including the United States-for failing to ratify the Rome Statute.130 IV. CIVIL LIABILITY FOR WARTIME ENVIRONMENTAL DEGRADATION: POSSIBLE ENFORCEMENT MECHANISMS The current customary law and treaty system is inadequate for protection of the environment from damage caused by conventional warfare.131 Civil liability, which has been utilized in past conflicts, may be a more appropriate remedy and could serve as a possible deterrent to methods of warfare that cause environmental damage.132 This Part will look at various civil liability systems by comparing possibilities and limitations for recouping environmental damage caused by war. A. United Nations Security Council Enforcement In response to Iraq's actions in the invasion of Kuwait during the Persian Gulf War, the U.N. passed Resolution 687, cataloguing Iraq's actions and detailing reparations.133 Paragraph 16 of Resolution 687 states "Iraq . . . is liable under international law for any direct loss, damage, including environmental damage and the depletion of natural resources, or injury to foreign Governments, nationals and corporations, as a result of Iraq's unlawful invasion and occupation of Kuwait."134 As a member of the U.N., Security Council resolutions are binding upon Iraq.135 Thus, it would seem that Security Council enforcement is an effective way to enforce civil liability for environmental damage inflicted during war, since such damage was explicitly included in Resolution 687.136 The Security Council, however, has had problems with enforcing resolutions; therefore, the U.N. created the UNCC through Resolution 687.137 B. United Nations Compensation Commission Paragraph 18 of Resolution 687 "create[s] a fund to pay compensation for claims that fall within paragraph 16 . . . and . . . establish[es] a Commission that will administer the fund."138 The UNCC is not a court, but rather is an administrative body that processes claims and determines proper amounts of payment from the fund.139 Setting up and funding the UNCC turned out to be two very different projects, as a lack of cooperation by Iraq turned a projected $6 billion compensation fund into a mere $21 million by 1993.140 However, this was sufficient to compensate all those who filed valid personal injury claims.141 The UNCC set up a series of categories based on the different types of losses that were suffered by individuals.142 Those who suffered injury due to Iraq's actions could then submit claims within the categories and receive compensation from the UNCC.143 The UNCC represents a novel and potentially powerful tool for civil liability, because unlike the ICJ or ICC, the UNCC can operate without consent from the sanctioned party.144 As such, the UNCC as it exists could be adapted to future conflicts to recoup the cost of environmental damage, and also to create a deterrent to any environmentally destructive action because of potential civil liability.145 There has been extensive critical commentary in this area, discussing the strengths and weaknesses of the UNCC as a mechanism for civil compensation for wartime environmental damage.146 The limitations of the UNCC involve the cooperation of the sanctioned nation, as well as the presence of public wealth that could be seized by the UNCC.147 Although the UNCC has jurisdiction without the consent of the sanctioned party, that nation-like Iraq after the Persian Gtilf War-could impede funding of the UNCC by failing to cooperate with sanctions.148 In addition, critics have cited the low priority status of environmental claims in the UNCC claims category hierarchy as another weakness.149 UNCC claims are divided into six categories, running A through F; claims for environmental damage are included in category F4, the "second from the bottom of all 'F' claims."150 C. The Alien Tort Claims Act The Alien Tort Claims Act151 (ATCA) is a U.S. federal law that grants the federal courts jurisdiction over tort claims filed by aliens.152 The full text of ATCA reads "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."153 Use of ATCA for filing suit for environmental damage was shown in Beanal v. Freeport-McMoRan, Inc.154 In Beanal, an Indonesian citizen filed suit against a U.S. corporation for environmental damage.155 Although the plaintiff's claims were dismissed, the existence of the case establishes the potential of ATCA and the federal courts as a means and venue to find civil liability for environmental damage to other nations.156 However, the potential adaptability of ATCA is limited when applied to environmental damage caused by war.157 Commentators have recognized that the "Foreign Sovereign Immunities Act . . . supersedes the ATCA when the defendant state was acting in its official capacity," which is likely to be the case in any act of war.158 In addition, the United States cannot be a defendant under ATCA, limiting any possible recovery for environmental damage in the Iraq War.159 If a creative plaintiff sought to sidestep the government's immunity by filing suit against officers of the United States, the case would likely fail as a nonjusticiable political question.160 V. ADAPTING THE UNITED NATIONS COMPENSATION COMMISSION: A PROPOSAL FOR A CIVIL COMPENSATION SCHEME FOR WARTIME ENVIRONMENTAL DAMAGE Despite the numerous international law provisions that serve to protect the environment from degradation during war,161 there exists a gap between the growing international concern for the environment and the mechanisms that can actually curtail environmental damage caused by war.162 The gap exists for practical reasons, such as the lack of clearly defined violations and methods of enforcement.163 In addition, there are political reasons, such as the reluctance of some nations to consent to jurisdiction of international courts.164 Some commentators also believe that there is a lack of adequate scientific information concerning the effects of war on the environment.165 Closing this gap requires the development of a mechanism that clearly defines wartime environmental damage and has the ability to enforce its judgments-both to compensate those affected by war and to serve as a deterrent from future unnecessary environmental degradation.166 In developing such a mechanism, it is instructive to look at some of the successes of domestic environmental law. For example, the Clean Air Act,167 and Clean Water Act,168 have had "teeth," and thus a degree of success, due to the statutes' provisions for citizen participation.169 The current international law and warfare mechanism that has the most citizen participation is the UNCC, since individuals and corporations were given the ability to make claims and be awarded damages.170 This is noteworthy as UNCC awards are distributed to individual claimants through their governments, rather than directly to governments to use as it chooses.171 The major issue for any environmental protection that is only magnified when dealing on an international level is enforcement.172 If citizens of an affected nation are going to successfully recover damages for environmental degradation from a foreign nation, they will need a body that has the authority to collect those damages. While the ICJ and the ICC are hamstrung by limited jurisdiction based on consent and membership,173 the U.N. has a wide membership, and the support of the majority of the world's nations.174 As discussed above, the U.N. has already established the UNCC for dealing with claims arising against Iraq from the Persian Gulf War.175 Given its widespread international support, "[t]he Commission is a concrete manifestation of the international community's commitment to the principles of state responsibility."176 The citizen participation aspect of the UNCC and its position as part of the U.N. make it particularly suited for adaptation to create a permanent body for imposing civil liability for environmental damage caused by war.177 In fact, in December 2004, the UNCC approved $2.9 billion in awards based on claims of environmental damage resulting from the Persian Gulf War.178 Kuwait received $2.27 billion, Saudi Arabia received $625 million, and Iran received a small amount179 Interestingly, Saudi Arabia's award was compensation for environmental damage caused by the international coalition forces that liberated Kuwait, who used the Saudi desert for military installations.180 Furthermore, the explicit reference to "environmental damage and the depletion of natural resources" as a cognizable claim in Resolution 687, which created the UNCC, is additional evidence of how the UNCC is suited for adaptation to ensure civil compensation for wartime environmental harm.181 A. Structure of the United, Nations Compensation Commission In terms of structure, the "UNCC is a subsidiary branch of the [U.N.] Security Council . . . composed of the Governing Council, the Commissioners, and the Secretariat.182 The report of the U.N. Secretary-General, which detailed the structure of the Commission stated: The Commission is not a court or an arbitral tribunal before which the parties appear; it is a political organ that performs an essentially fact-finding function of examining claims, verifying their validity, evaluating losses, assessing payments and resolving disputed claims. It is only in this last respect that a quasi-judicial function may be involved.183 Thus, the Commission is an administrative, not judicial, body that serves to review and fill claims.184 The Commissioners' duty is to review submitted claims.185 The Secretariat administers the fund, while providing administrative support to the Governing Council.186 B. Weaknesses of the United Nations Compensation Commission The UNCC's ability to serve as a civil compensation scheme for wartime environmental damage is hampered by several issues.187 From a practical standpoint, the UNCC is limited by the fact that the sanctioned nation must have public wealth that can be seized to add monies to the fund and any uncooperative nation can make the collecting of such money difficult.188 Another problem arising from a lack of money is the fact that the UNCC does not support itself and requires money from the sanctioned nation to cover its high administrative costs.189 These costs are the result of the need for support staff as well as the high cost of specialists to serve as commissioners.190 These costs may well continue to be considerable, as commentators have estimated that it may take sixteen to thirty years to settle all claims.191 Despite this estimate the UNCC reports that claims processing was concluded in June 2005, with only "payment of awards to claimants and a number of residual tasks" remaining.192 Another weakness of the UNCC results from the timing of the filing of claims, especially when concerning claims for environmental damage.193 All environmental damage claims had to be for harms that occurred between August 2, 1990 and March 2, 1991.194 In addition, environmental damage claims submitted to the UNCC had to be filed by February 1, 1997.195 Given that the extent of environmental damages are often not known until long after the initial harm occurs, it is likely that many environmental damages will be under-compensated if compensated at all.196 C. Strengths of the United Nations Compensation Commission as a Civil Compensation Meclianism for Wartime Environmental Damage In addition to the benefits discussed above, another strength of the UNCC as a model for a civil compensation mechanism for wartime environmental damage is its broad definition of "environmental damage."197 Decision 7 of the Governing Council of the UNCC details the type of environmental losses that can be submitted as claims.198 Paragraph 35 of the document lists as compensable claims any "[a]batement and prevention of environmental damage . . . measures already taken to clean and restore the environment or future measures . . . monitoring and assessment of the environmental damage . . . monitoring of public health . . . and [d]epletion of or damage to natural resources."199 The broad definition of environmental damage utilized by the UNCC was informed by a report furnished by the U.N. Environment Programme (UNEP).200 The purpose of the UNEP report was to "provide [] . . . definitions and guidance for evaluating environmental claims."201 Most useful to wartime environmental compensation is the fact that the UNEP report interpreted "'environmental damage'" in a broad sense to mean "'impairment of the environment.'"202 According to the UNEP report, the damage need not be permanent to be a compensable environmental harm.203 Also of note is the UNEP report's broad definition of "natural resources," which the report interpreted as naturally occurring assets that "'have a primarily commercial use or . . . value.'"204 Another strength of the UNCC is its efficiency as a clearinghouse for civil compensation for wartime environmental damage. Although twelve years may seem like a long time to process claims, it is efficient when viewed in light of the fact that: (1) there were 2.68 million claims filed; (2) the UNCC was operating with a unique mandate consisting of new procedures; and (3) court proceedings on a single case can sometimes take nearly as long.205 This level of efficiency could never be achieved using a standard judicial process to adjudicate wartime environmental damage claims. D. Adapting the United Nations Compensation Commission to Serve as a Civil Compensation Mechanism for Wartime Environmental Damage Given the strengths and weaknesses detailed above, it is apparent that the UNCC is a unique international body that has the capacity for filling the gap between existing wartime environmental law and the need for an enforceable civil compensation scheme.206 However, before it can be utilized to redress environmental wrongs in future conflicts, it must be adapted to increase its effectiveness.207 As a threshold issue, the U.N. Security Council must make the UNCC a permanent body with jurisdiction over future conflicts, as the UNCC has reached "completion of 12 years of claims processing . . . and brings to an end the work of the panels of Commissioners, as a whole."208 Doing so will ensure, for the sake of efficiency, that this unique mechanism need not be reorganized and reconvened to handle claims arising out of any future military conflicts. 1. Increasing the Priority of Environmental Claims If the UNCC is to be an effective civil compensation mechanism for wartime environmental damage, it is also going to have to increase the priority level of environmental damage claims.209 During the claims process, the UNCC expedited category A, B, and C claims, while the focus on category D, E, and F claims only occurred "in recent years."210 In an adapted version of the UNCC, environmental damage claims must be given a higher priority to ensure timely and successful processing of claims.211 2. Permanent Funding Another important change that must be made in adapting the UNCC is to fund the Commission from outside sources, as opposed to the seized assets of the sanctioned nation.212 The UNCC, as it currently operates, relies upon Iraq's oil sanctions for its existence.213 If the UNCC is to remain as a permanent, viable entity, it will have to be properly funded and not be at the mercy of potentially uncooperative sanctioned nations.214 Commentators have suggested voluntary contributions, taxes, and permits as possible revenue streams to support the UNCC.215 3. Developing a Clear and Precise Definition of Environmental Damage a. Learning from Existing International Environmental Law of War Most important to an adaptation of the UNCC that successfully compensates for wartime environmental damage is a clear and precise definition of what constitutes a compensable environmental harm.216 The framework of Decision 7 and the technical assistance of the UNEP report offer a good starting point because they interpret environmental damage very broadly, enhancing environmental protection.217 However, these existing UNCC definitions can be bolstered by incorporating the strengths and weaknesses of the existing environmental law of war instruments and customs previously examined.218 Early environmental law of war provisions, such as the Hague Convention (1907) and the Geneva Convention (1949), are inadequate to protect the environment because they contain a military necessity exception derived from customary principles of war.219 In addition, Protocol I contains environmental provisions that are hampered by imprecise wording-for example, long-term" harm-which can be interpreted to make certain environmental damage noncompensable.220 Furthermore, Protocol I is hindered by not taking collateral damage into account and only prohibiting wartime environmental damage that is intended or expected to occur.221 The shortcomings in the language of preexisting international environmental law of war provisions can be avoided by drafting clear and precise definitions of environmental harms.222 The definition must not contain any military necessity exceptions, in order to cut down on the ability of nations to use the customary law of war to avoid liability.223 The definitions should also follow the UNEP report in its broad interpretation of environmental damage, and not get trapped by the "widespread, long-term, and severe" language contained in Protocol I and ENMOD.224 Rather, the definition of environmental harm should allow for a wide variety of claimants and latitude for those who evaluate the claims. b. Geographic Limitations There should be some limitation in the definition of compensable environmental harm, however, especially in the area of geographic limitation.225 The UNCC definitions, as applied to the Persian Gulf War, did not "set[] any limit on the geographical location of losses, a circumstance which could have given rise to difficult issues of proof of causation and of evidence."226 Any future definitions of compensable environmental damage should include reasonable geographical limitations to ensure that sanctioned nations are not held responsible for unrelated environmental problems in remote regions, where there is a tenuous chain of causation.227 4. The Timing of Claims Another important change to make is the implementation of more liberal filing deadlines for environmental claims.228 There should be a deadline so that the sanctioned nation need not fear the filing of claims indefinitely.229 However, this deadline should extend longer than the six years allowed under the current UNCC system.230 Although the February 1, 1997 deadline for environmental claims is extended over a year beyond the deadlines for other categories of claims, this seems insufficient.231 Wartime "environmental damage of such magnitude will most probably have long-term, widespread and at present not yet fully apparent negative effects."232 5. Studying the Effectiveness of the Size of Environmental Awards Another important factor that should be considered is whether the size of the environmental damage awards of the UNCC were adequate to rehabilitate or compensate for environmental damage.233 A study comparing prewar and post-UNCC award Persian Gulf environmental quality would be helpful in determining whether the environmental damage awards from the UNCC were too small.234 If such a study were to find that the environmental awards were insufficient to rehabilitate the wartime environmental damage, then the size of the awards should be increased when the UNCC is made a permanent body. Appropriate award sizes will also lead to greater efficiency, as those satisfied with awards will be less likely to pursue compensation through national courts.235 Recovery through the UNCC does not preclude the use of traditional legal methods to pursue remedies, and "[t]he risk of flooding national courts with lawsuits or other proceedings against Iraq is inversely proportional to the degree of 'customer satisfaction' provided by the UNCC."236 VI. SHOULD U.S.-LED COALITION FORCES BE HELD CIVILLY LIABLE FOR ENVIRONMENTAL DAMAGE IN THE IRAQ WAR UNDER A MODIFIED UNITED NATIONS COMPENSATION COMMISSION COMPENSATION SCHEME? A. Legality of the 2003 Iraq War There has been heated debate on both sides of the political spectrum about whether or not the U.S.-led coalition (Coalition) should have gone to war in Iraq, and this debate is still raging today.237 The purpose of this Note is not to comment on the moral, ethical, or political justifications for the Iraq War. As such, the following section will focus on the legality of the war and whether or not the Coalition238 should be open to claims for environmental damage caused during the War. U.N. Resolution 687 predicated Iraq's liability on the fact that its invasion and occupation of Kuwait, which started the Persian Gulf War, was "unlawful."239 Therefore, the legality of the military conduct is a determining factor as to whether or not liability should be assessed.240 The Iraq War was not predicated on self-defense, but rather on a doctrine of preemptive military action, unauthorized by the U.N. Security Council and, thus, "without the cloak of legality and legitimacy that clear security Council authority would have provided."241 Critics have argued that preemptive military action is a "dangerous doctrine ... so patently lacking in any basis in international law that ... it needs the most searching scrutiny."242 A less policy-based and more international law-based justification for the Iraq War was U.N. Resolution 1441, which stated that Iraq was in breach of Resolution 687.243 Critics have argued that basing justification on a "revival" of the authorization of a coalition to use force against Iraq that existed from the Persian Gulf War is flawed in many ways.244 Most significantly, there is no doctrine of revival in Security Council proceedings, any "revival" would have to be in coalition with Kuwait, and "Resolution 1441, ou its face, quite patently does not authorise the use of force against Iraq and does not indicate that the authorization to the 1991 States acting in coalition with Kuwait could possibly be revived."245 Despite political, humanitarian, and national security arguments supporting the Iraq War, it is clear that a justification for war grounded in international law is tenuous. B. Scope of Coalition Responsibility Under a Modified United Nations Compensation, Commission Sclieme If the Security Council were to determine that the Iraq War was an illegal use of force, then Coalition nations could be held liable for broad categories of damages under the UNCC precedent246 As discussed above, U.N. Resolution 687 established Iraq's liability for damage-specifically environmental damage-incurred during the Persian Gulf War.247 However, Iraq is liable for damage beyond the actions of its own military.248 Iraq is also liable for damages resulting from the actions of both sides of the conflict; though this provision has drawn criticism, it is grounded in a norm of international law that holds aggressors responsible for "damage arising from the legitimate exercise of a self-defence by the state that is the victim of the aggression."249 In addition, Iraq is liable to the UNCC for damage resulting "from the breakdown of civil order in Kuwait and Iraq."250 Given that Iraqi forces fought to repel Coalition troops, and that civil unrest has resulted in two years of violence by insurgents, the Coalition could be held civilly liable for environmental damages beyond those caused directly by its own military.251 C. Should the U.S.-Led Coalition Be Held Civilly Liable? The documented and potential damage to Iraq's environment as a result of the Iraq War is widespread and hard to dispute.252 The Iraq War has been very expensive for the United States, and it is unclear how much of the reconstruction costs the United States will pay.253 Senator Joseph Biden has stated that the United States "typically covers about 25% of the post-conflict reconstructions costs," but that strained relations with foreign nations as a result of the conflict will probably lead to reduced international contributions.254 In addition, Iraq, at the end of 2004, had amassed $200 billion in debt and reparations.255 Given the grim financial situation in Iraq and the low priority often given to environmental damage-as evidenced by the category system of the UNCC-it is likely that there will not be adequate funding for environmental rehabilitation in postwar Iraq.256 Holding Coalition nations civilly liable through an adapted UNCC will force the wealthier nations who engaged in military activity-without the imprimatur of the security Council or international law-that resulted in environmental degradation throughout Iraq to repay Iraqi citizens for that damage. In addition to fairness, imposing civil liability on Coalition nations for environmental damage caused during the Iraq War will also perform the important normative function of assessing state responsibility for causing environmental damage, as was the case with Iraq in Resolution 687.257 Following the invasion of Iraq in March 2003, U.S. forces established an informal system of compensation for aggrieved Iraqis.258 The program, dubbed "condolence payments," allows Iraqis to file claims for death, injury, and property damage and to receive compensation from the U.S. military.259 The compensation system, however, "does not admit guilt or acknowledge liability or negligence. . . . [But, is rather] a gesture that expresses sympathy in concrete terms."260 This type of system is indicative of nations' reluctance to voluntarily take responsibility for wartime damages.261 However, assessing UNCC civil liability to Coalition forces, as was done to Iraq in the Persian Gulf War, would express state responsibility in concrete terms.262 This application of UNCC liability to Coalition forces would act as a deterrent to future conflicts, since the cost of engaging in armed conflict would greatly increase.263 This precedent would be invaluable in ensuring that aggressive nations include harm to the environment in their calculations when contemplating possible military action.264 Over the first year of the program, the United States has paid out about $2.2 million in the form of condolence payments.265 This paltry sum makes it apparent that UNCC involvement is required to ensure that Iraqis are sufficiently compensated for their environmental losses.266 The closest that condolence payments come to recognizing environmental damage is a maximum five hundred dollar payment for property damage.267 Attaining condolence payments is difficult for Iraqis as they shoulder the burden of proof and U.S. military commanders make the decisions without any appeals process.268 Major John Moore, an Army legal officer, described the condolence payments "'as a public relations tool-sort of a no-hard-feelings type of payment' . . . . 'It's not designed to make them whole again, only to alleviate their hardships.'"269 As the full extent of the damage to Iraq's environment becomes apparent, there are certain to be justified "hard feelings" on the part of Iraqi citizens. Regardless of the sympathetic nature of the condolence payment program, Iraqi citizens-like the citizens of Kuwait following the Persian Gulf War-deserve a program that will aim to make their degraded environment whole again through adequate payments and an accessible, fair claims process. The UNCC is such a mechanism, and the U.N. should build upon the Persian Gulf War precedent by imposing civil liability for environmental damage on Coalition forces through this mechanism. CONCLUSION Military history, as well as more current events such as the Persian Gulf War and the Iraq War, makes clear that war causes significant environmental damage. This is a fact that is often overlooked when considering the toll of war. Current international environmental law provisions are inadequate to protect the natural environmental from wartime degradation. If effective wartime environmental protection does not yet exist, a civil liability system can act as a substitute, serving as both a deterrent to aggressive nations and as an opportunity for environmental remediation. Following the Persian Gulf War, the U.N. made a significant step toward such a civil liability system by establishing the UNCC, with jurisdiction to approve claims for environmental damage. However, as it stands now, the UNCC is not fully equipped to effectively assess civil liability for wartime environmental degradation. The UNCC must be adapted to better compensate for environmental harms. With an adapted UNCC in place, the U.N. should continue its forward progress in the area of compensation for wartime environmental damage by imposing UNCC civil liability against Coalition forces for environmental degradation during the Iraq War. The liability will ensure that Iraq's environment is restored to prewar conditions, but also will extend the valuable UNCC precedent, which will act as a deterrent to future conflicts. Despite the strong fairness, deterrence, and environmental remediation arguments for imposing UNCC liability on Coalition forces, it is unlikely to occur for political reasons. Given the power that the United States and Great Britain wield in the international community, it is unlikely that the U.N. will risk further fraying an already tense relationship by passing a resolution placing formal blame on Coalition nations. Enlarge 200% Enlarge 400% Enlarge 200% Enlarge 400% Enlarge 200% Enlarge 400% Enlarge 200% Enlarge 400% Enlarge 200% Enlarge 400% Enlarge 200% Enlarge 400% Enlarge 200% Enlarge 400% Enlarge 200% Enlarge 400% Enlarge 200% Enlarge 400% Enlarge 200% Enlarge 400% Enlarge 200% Enlarge 400% Enlarge 200% Enlarge 400% Enlarge 200% Enlarge 400% Enlarge 200% Enlarge 400% Enlarge 200% Enlarge 400% Enlarge 200% Enlarge 400% Enlarge 200% Enlarge 400% Enlarge 200% Enlarge 400% Enlarge 200% Enlarge 400% Enlarge 200% Enlarge 400% Enlarge 200% Enlarge 400% Enlarge 200% Enlarge 400% Enlarge 200% Enlarge 400% Enlarge 200% Enlarge 400% Enlarge 200% Enlarge 400% Enlarge 200% Enlarge 400% Enlarge 200% Enlarge 400% Enlarge 200% Enlarge 400% Enlarge 200% Enlarge 400% Enlarge 200% Enlarge 400% [Author Affiliation] KEITH P. McMANUS* [Author Affiliation] * Senior Articles Editor, BOSTON COLLEGE ENVIRONMENTAL AFFAIRS LAW REVIEW, 2005-06. Natural Enemy, Natural Ally: Toward an Environmental History of Warfare Sheldon Ungar. The Journal of American History. Bloomington: Mar 2006.Vol.92, Iss. 4; pg. 1407, 1 pgs » Jump to full text » Translate document into: » More Like This - Find similar documents Subjects: Book reviews, Nonfiction, War, Environmental impact, Environmental protection, Essays People: Tucker, Richard, Russell, Edmund Author(s): Sheldon Ungar Document types: Book Review-Favorable Section: Book Reviews Publication title: The Journal of American History. Bloomington: Mar 2006. Vol. 92, Iss. 4; pg. 1407, 1 pgs Source type: Periodical ISSN: 00218723 ProQuest document ID: 1013082701 Text Word Count 666 Document URL: http://0-proquest.umi.com.oswald.clark.edu:80/pqdweb?did=1013082701&sid=3&Fmt=3&clientId=11109&RQT=309&VName=PQD Abstract (Document Summary) Ungar reviews Natural Enemy, Natural Ally: Toward an Environmental History of Warfare edited by Richard P. Tucker and Edmund Russell. Full Text (666 words) Copyright Organization of American Historians Mar 2006 Natural Enemy, Natural Ally: Toward an Environmental History of Warfare. Ed. by Richard P. Tucker and Edmund Russell. (Corvallis: Oregon State University Press, 2004. viii, 280 pp. Paper, $29.95, ISBN 0-87071-047-8.) When I started this reader I was a tad suspicious that an environmental take on war would be an exercise in novelty related to the belated discovery of this generally ignored topic. In fact, this collection of essays adds to our theoretical and substantive understanding of how the environment and warfare interact. Most of this eleven-article collection deals with the impacts of war on the natural environment. The coverage is variegated, with topics ranging from war in precolonial central India, to precolonial and colonial African warfare, to the role of organisms in the battle of Gettysburg and the Civil War, to timber, pests, whaling, and broad environmental impacts of World War II on Japan and Finland. The introduction lays out the main themes clearly and is followed by a historical survey of the impact of war. (An irritant here is that the chapters are not numbered.) The key to an environment-war linkage is "to demonstrate that environmental approaches can yield valuable insights into fields of history that might not concede any potential connections at first glance" (p. 88). Most of the articles afford interesting insights and circuitous and sometimes surprising connections. Whereas images of battle-scarred landscape are commonplace in movies and sometimes photographs, the reach of war is far more extensive and often indirect. Economic and military mobilization (including new technologies), scarcity and attendant conservation activities, and diminishing trade can all have deep and persistent ecological consequences. Richard P. Tucker's survey chapter points out that the British naval blockade of Napoleonic France cut off sugar exports from Haiti and thereby led to subsistence cropping in erosive hill woodlands. The ensuing degradation of the Haitian landscape plainly illustrates the indirect and unintended ecological consequence of war over a distance. In a later chapter, Tucker argues that, while World War II devastated forests, the most dramatic impacts on global timber stocks resulted from the postwar extension of economic, technological, and political changes wrought by the war. Even then, the direct damage of war is all too easily overstated. William Tsutsui provides a nice corrective to the stereotyped images of Hiroshima and Nagasaki: The atomic bomb had devastating effects on humans, but plant and animal life were remarkably resilient. The environmental impact of war is not always negative. Simo Laakkonen contends that shortages and conservation behaviors led to a reduction in air and water pollution in Finland during World War II (a caveat is that he provides guesstimates, since scientific studies are not available). Several chapters observe that World War II provided greater protection for fish and whales, as boats were either mobilized for the war effort or could not be protected. Organisms and pests are a central challenge in warfare and can have assorted consequences. Edmund Russell suggests that metaphors of human and insect annihilation fed into each other during the two world wars and prepared the ground for extensive pesticide use in the post-World War II era. Judith Bennett observes that the American transport of cattle in the Pacific theater left an enduring legacy-ticks. She notes that this was a result of American authorities running roughshod over locals and ignoring their advice. The one issue I have with this book is a boundary problem. The introduction differentiates between the effects of war on the natural environment and on the built environment, though the latter garners little attention and extends the concept of environment to include almost everything. The question of how the environment shapes warfare is also somewhat problematic. It attracts limited coverage in these essays and is already a significant concern in conventional accounts of warfare and military strategy. If the environmental history of warfare is to be a coherent field of inquiry, its practitioners will have to be careful not to overreach themselves. [Author Affiliation] Sheldon Ungar University of Toronto at Scarborough Toronto, Canada War's environmental impact Anonymous. Alternatives Journal. Waterloo: Sep/Oct 2004.Vol.30, Iss. 4; pg. 26 » Jump to full text » Translate document into: » More Like This - Find similar documents Subjects: War, Environmental impact, Armed forces, Environment Classification Codes 9172 Canada Author(s): Anonymous Document types: Feature Publication title: Alternatives Journal. Waterloo: Sep/Oct 2004. Vol. 30, Iss. 4; pg. 26 Source type: Periodical ISSN: 12057398 ProQuest document ID: 689836091 Text Word Count 775 Document URL: http://0-proquest.umi.com.oswald.clark.edu:80/pqdweb?did=689836091&sid=3&Fmt=3&clientId=11109&RQT=309&VName=PQD Abstract (Document Summary) War has many economic, political and social costs, some of them tied to the environment. These environmental factors may be less obvious than the immediate death and destruction left in the wake of war. However, from the planning stages of armed conflict to long after the actual fighting is over, the environment is an increasingly important consideration. This article presents concrete examples of how every stage of war leaves its mark on the landscape. Full Text (775 words) Copyright Alternatives, Incorporated Sep/Oct 2004 Environmental abuse leads to conflict and conflict leads to environmental abuse. WHEN WE THINK OF WAR, we typically (and appropriately) think of the tragic loss of human life. War also has many other economic, political and social costs, some of them tied to the environment. These environmental factors may be less obvious than the immediate death and destruction left in the wake of war. However, from the planning stages of armed conflict to long after the actual fighting is over, the environment is an increasingly important consideration. Enormous amounts of resources are used up by military efforts, and weapons development and testing leave a lasting burden of contamination. The environment is often damaged as a result of open combat, but historically it has sometimes been directly targeted as a way to deprive enemies of water, food and shelter. And although war is never attributable to one cause alone, environmental issues - such as disputes over land and resources - are a factor in many conflicts. Here we use the principles of environmental impact assessment to provide concrete examples that show how every stage of war leaves its mark on the landscape. Causes of War Biological Opium trafficking, a trade that British merchants had found a lucrative market, was outlawed in China in 1836. The Opium Wars began in 1839 when China enforced its prohibition of opium by destroying a large quantity of the drug confiscated from British merchants. Opium is derived from poppies. Chemical Saddam Hussein's supposed possession of chemical (and other) weapons of mass destruction was one US rationale for invading Iraq in 2003. Physical: alterations Destruction of traditional lands and decimation of hunting game during the American colonization contributed to the Indian Frontier Wars (1864-1890) which ended at Wounded Knee. Physical: resources Opposing Japan's expansionist plans, the US cut off oil imports to Japan in the 1941 embargo. Japan had already been facing oil shortages for its military, and the embargo was one of the final contributing factors for its attack on oil-rich South Asia. Preparation for War Biological After a naval exercise in March 2000, seven whales died after beaching themselves in the Bahamas. Marine mammals have air cavities that can rupture from underwater shock waves caused by sonar and weapons testing. Chemical The Distant Early Warning (DEW) Line, installed along Canada's north during the Cold War to ensure early detection of foreign attacks, has left an ongoing burden of PCB contamination. These chemicals were present in the paints used at all the DEW radar bases. Physical: alterations The Rideau Canal was built (1826-1832) from Kingston to Ottawa to provide a secure military route to Montreal, in response to American plans in the War of 1812 to take control of the St. Lawrence River, cutting ties between Upper and Lower Canada. Physical: resources In the 17-18th centuries, the British Navy felled old-growth White Pine in North America to build the masts for their ships. Very few old-growth stands remain today. Direct Impacts Biological Eight million horses were killed in World War I during that war and the Russian Revolution (1917), the Orlov Riding Horse, a breed associated with the Russian aristocracy, was virtually wiped out. Chemical The US's Operation Ranch Hand sprayed 19 million gallons of herbicide over nine million square miles during the Vietnam War (1950-1975), in a deliberate attempt to defoliate the terrain. Agent Orange was one of the main herbicides used. Physical: alterations Over 700 oil wells were set on fire in Kuwait (1991), spreading carcinogenic smoke over all the countries in the Gulf region and affecting the Indian subcontinent. Hundreds of tonnes of crude oil were also pumped into Gulf water, devastating marine ecosystems. Physical: resources During World War II, peak production of steel for the German war machine was about 45 million tonnes a year, while the US produced and used even more than that. Post-Conflict and Indirect Effects Biological The Soviets tested various biological weapons on Vozrozhdeniye Island from 1936 until 1992. The mysterious death of 500,000 saiga antelope on the Turgay steppes over the course of an hour in May, 1988, may be attributed to residual pathogens like anthrax buried at the site. Chemical Depleted uranium for weapons used in Bosnia-Herzegovina in 1994-1995 as found seven years later in drinking water and suspended in dust particles in the air. Physical: alterations Minefields planted during three decades of conflict in Afghanistan often trapped pastoral communities uphill. The herds overgrazed fragile upland ecosystems, while people deforested the hills for winter firewood, contributing to soil erosion and desertification. Physical: resources The destruction of Afghanistan's intricate network of irrigation channels and reservoirs continues to cripple agriculture and cause desertification. The environment: Collateral victim and tool of war Robert Jarrett. Bioscience. Washington: Sep 2003.Vol.53, Iss. 9; pg. 880 » Jump to full text » Translate document into: » More Like This - Find similar documents Subjects: Ecology, War, Environmental impact, Books People: Hastings, Tom, Austin, Jay, Bruch, Carl Author(s): Robert Jarrett Document types: Commentary Section: Special book article Publication title: Bioscience. Washington: Sep 2003. Vol. 53, Iss. 9; pg. 880 Source type: Periodical ISSN: 00063568 ProQuest document ID: 430985251 Text Word Count 2598 Document URL: http://0-proquest.umi.com.oswald.clark.edu:80/pqdweb?did=430985251&sid=3&Fmt=3&clientId=11109&RQT=309&VName=PQD Abstract (Document Summary) Jarrett discusses the ecology of war by analyzing the series of studies issued by the United Nations Environment Program, and the two books: "Ecology of War and Peace: Counting Costs of Conflict" by Tom Hastings and "The Environmental Consequences of War: Legal, Economic, and Scientific Perspectives" edited by Jay Austin and Carl Bruch. The titles of the books and of the reports do imply that there are needs to produce properly titled books, journals, monographs, and databases of pre-concurrent, and postwar ecological information. Full Text (2598 words) Copyright American Institute of Biological Sciences Sep 2003 I make two assumptions in this article: First, that a few BioScience readers, but not many, will have had some involvement with the ecology of war and will want to know more about the current literature; and second, that some readers, perhaps many, may be interested in becoming active in this field. So this article has two facets: (1) a quick introduction for the uninitiated to the field of impacts of war and (2) a description of the books under review. My aim is to tell you whether these books will help you understand what war does to the environment. A Google search on "war and ecology" netted 448,000 hits in just 0.17 seconds on 21 July 2003. An unscientific, visual sample suggested that the offerings range from the rational to the ridiculous, from the fact-based to the facile. The vast majority are short articles. It is far beyond the scope of this review to do a bibliometric analysis of these results; it is possible that a few facts and ideas are repeated with a high frequency, vastly outweighing the generation of genuinely valuable information. No doubt excellent material is buried in the avalanche. In my own work, I noticed that this past April and May brought a surge of articles reporting on the intent of nongovernmental organizations and the United Nations to conduct research and mitigation projects in the marsh areas of Iraq. Books and monographs on that work are likely to appear in the coming months and years. Before the Vietnam War, with its defoliation and dioxin dispersal, few people discussed ecological destruction by warfare. It was generally accepted as a necessary evil of a necessary evil. Taking that as a graphical 0,0 point and moving forward to today, we see a definite rise in the trend line of concern over war's environmental effects. Since the Persian Gulf War in 1991, increasing recognition of the ecological footprint of conflict has joined with other rising concerns about the global environment. We look for help in grasping the nature and intensity of the effects of war to aid the development of appropriate ethics and policy. It was possible in 1996 for me to tell the Federal Forecasters' Conference, an annual meeting of statistical and normative forecasting specialists from most of the prominent US government agencies, about a discernible worldwide trend toward inclusion of such issues in future decisionmaking on whether and when go to war and when to terminate war. Four years later, two books were published on that trend of thought (Austin and Bruch 2000, Hastings 2000). Today, 7 years after the conference, concern and discussion about the ecological effects of war are even more widespread. It will help to quickly consider a few fundamentals before turning to the merits of some recent literature for addressing those questions and desires. Human conflict generates two broad categories of eco-consumption. First, there is the continuous, nonbattlefield use of minerals, forests, and food to support the peacetime and wartime production of materiel and military training (also to be read as production of pollution and damage to air, habitat, soil, and water). Scientists have been analyzing such consumption and the consequent environmental degradation for decades. Information and understanding are slowly accumulating for these parallels to the measure of ecological damage caused by peaceful living. That knowledge is not complete and the ecological costs are not fully internalized into activities and products, but awareness and understanding of the magnitude of the problem are growing. Second, there are the obvious, noisy, messy, destructive battlefield effects of war that appear in the images beamed to homes around the world. Battle damage experts assess military effects, but they do not provide or retain detailed biophysical data for scientific study. The news pictures show startling damage, but they fail to show the vast amount of territory that has not been churned beyond recognition. They also fail to show the long-lasting, subtle effects of war on the environment. Recent conflicts, while providing "laboratories" for evaluating damages (intentional and collateral), may not be providing information to help economists internalize the ecological damage of conflict into national budgets. Are such opportunities being forfeited? Battlefields are too dangerous for immediate assessment, and research grants typically become available long after natural mitigation has begun. Therefore, the biological scientist who wants to research the ecological impacts of human conflict will not find a huge literature in this field. Nevertheless, we can evaluate three recent sources of thought and information on the subject. As with so many other topics, the literature in this field seems to come in waves, both in terms of the amount written at a given time and in terms of its emphasis. Thus, scientists and researchers are not necessarily going to find an even evolution of thought. Ecology of War and Peace: Counting Costs of Conflict (2000), by Tom Hastings, and The Environmental Consequences of War: Legal, Economic, and Scientific Perspectives (2000), edited by Jay Austin and Carl Bruch, have the same year of publication, meaning that the content of both is probably of a similar age-allowing for the processes of research, peer review, and publishing, most likely four to five years old. Yet these are relatively new books in the genre. A third source of recent information on the ecology of war is the series of studies issued over several years by the United Nations Environment Programme (UNEP) Post Conflict Assessment Unit (UNEP PCAU 1999-2003). A few narrowly focused technical reports are also beginning to appear about the ecological effects resulting from warfare in Southeast Asia 25 to 40 years ago. Ecology of War and Peace is easy to review. In his preface, the author admits his subjectivity. If you are looking for ecological information organized with just the modicum of normative discussion needed to correlate conflict with its ecological footprint, you will be disappointed. This is not your book. Hastings applies the word ecology in a philosophical, ideological vein to provide a highly judgmental discussion with a smattering of technical quotations. He is not so much pro-ecology as he is antiwar. Read the preface and pages xiii and xiv. If you like them-they describe his view that war is bad and his many years of protest activity-and if you are looking for pacifist arguments and companionship in that area, this is your book. If you disagree with those few pages, you will hate the book. If you are an agnostic in these matters, you will need to read a lot of other books to get a balanced picture, since Hastings does not always maintain his journalistic objectivity. Fortunately, he does provide sources at the ends of chapters (weighted toward the normative rather than the scientific), a bibliography, and an index. When reading Ecology of War and Peace, be alert for anomalies and wary of logical pitfalls that can seriously mislead the untutored. These pitfalls are exemplified by Hastings's use of the term commonsense epidemiology when discussing cancer occurrence (pp. 18-19) and his confusion of the phenomena of toxicity and radioactivity (p. 31). Nevertheless, Hastings raises many interesting issues that any student in this field might wish to confront. Toward the end of the book, he abruptly inserts a discussion of "environmental justice" (pp. 116-117), an important concept but one that is tangential to his previous directions. The final, short chapter, "Constructive Conflict," shows why Hastings's ecological and environmental material has been watery and assertion laden all along by closing the loop with the preface: He proves that his passion and knowledge base are truly antiwar, not ecological or environmental. As Hastings researched and wrote his book, other activities transpired of which he could take only partial or no advantage. One was the continuation of the series of UNEP studies of the impacts of war in the Balkans. The other was a conference in 1998 sponsored by the Environmental Law Institute, the Smithsonian Institution, and the Kuwait Foundation for the Advancement of Sciences. That conference produced a compilation of scholarly papers, The Environmental Consequences of War, which provides an interesting counterpoint to Hastings's views. In developing chapters for this book, the editor-authors Austin and Bruch had the advantage of having access to papers presented by 33 additional authors who were selected by well-known organizations to present papers at the conference. The book's coverage of issue areas and opinions within the total institutional and natural context of environment and war is thus quite wide, affording the reader a broad education on questions in the field and possible approaches to their resolution. This volume does not provide encyclopedic reference information on the field of war and the environment. It does provide far more technical information than the Hastings volume, although its 172-page part III, which addresses environmental and health impacts, is still at too high a level of abstraction to be more than a general survey of conditions and concerns. Austin and Bruch's compendium of articles walks the reader through the concepts (and some quantifications) of historical and cultural developments in the law of war and peace, assessment of ecological and health impacts, valuing of ecological and health impacts, and prospects for future developments. Along the way, the various authors admit to such realities as humans' continuing unwillingness to forgo war as a means of dispute resolution (much less forgo all harm to the environment), the practical impossibility of rapidly assessing damage in active war zones, legal differences between internation and intranation wars, and the paucity of ecological data and standards for valuing damage and mitigation. Asit Biswas (Austin and Bruch, p. 314) threatens to raise what could be a firestorm of indignation, or guilt, among scientists when he accuses the scientific community of lacking sufficient interest in measuring the effects of war. On previous pages, he accuses existing impact assessment methodologies of not being rigorous enough to do the job-presumably even if good data were available. Where does that leave us? Austin and Bruch and their contributors give us an excellent overview of questions and hint at possible eventual answers to be struggled with, in tandem with evolution in other institutional spheres. To be sure, they have not avoided all ideology: They do assume that environmental protection is good. Nevertheless, the authors express that idea with considerable objectivity. Their writing is well organized and clear. They throw down the gauntlet to scientists and policymakers alike to develop and implement disciplined ecological damage evaluation and mitigation programs that are better scaled to the wars themselves. The text is well footnoted and indexed for ease of use. The Environmental Consequences of War is a book to be read by anyone contemplating a major project or a career in warassociated ecology research or mitigation. It provides a broad, clear picture of the playing field-what can be influenced and where efforts will fit. Austin and Bruch and their colleagues do not significantly advance readers' knowledge of the science in this field, but they do give a critical boost to clarifying its purpose and goals against the backdrop of legal, geopolitical, and behavioral realities. This clarification, in turn, may help scientists locate research sites and financial and technical support. Scientists and engineers are often "damned if they do and damned if they don't" become knowledgeable and involved in the politics and economics of their field. We can't seem to win! Still, erring on the side of greater understanding should go far toward ensuring career satisfaction. The bias of pro-environment subjectivism is of little consequence compared with the wide range of information and ideas the authors offer a reader to draw upon for building one's own program. Given the time lapsed since its publication, it is time for a sequel to Austin and Bruch; let us hope it is already in preparation. The UNEP reports fit a special niche, addressing particular concerns in a detail that neither Hastings nor Austin and Bruch can provide. These reports typically carry titles with the words "post-conflict environmental assessment" or "consequences for the environment." They focus on specific nations, areas, conflicts, and even weapons (one considered the effects of depleted uranium rounds). The series starts with the Persian Gulf War of 1991, continues through the various Balkan regional conflicts of the 1990s, moves to the war in Afghanistan, and ends with the "desk study" for the 2003 conflict in Iraq. Small, highly competent staffs were deployed for short periods to perform the field studies. A hallmark of the reports has been their low level of scientific data content and high level of policy interpretation, accompanied by projections of program needs for mitigation development. Though the reports are not scientific monographs, presumably the data do exist for further study and augmentation by qualified scholars. Both the books and the UNEP reports under review have one thing in common: The titles imply that the reader will indeed find detailed environmental information in them. However, that is true of all three to only a modest extent. Such titles could mislead the general public and political leaders into believing that we know more than we do and that vast volumes of longitudinal ecological data exist for ready analysis. Fulfilling Austin and Bruch's and UNEP's recommendations for information generation would be a fitting way to solve this problem: by producing properly titled books, journals, monographs, and databases of pre-, concurrent, and postwar ecological information. It is intriguing to compare the books by Hastings and Austin and Bruch. Clearly, Austin and Bruch's book is more measured in tone and more topically thorough than Hastings's work. At root, Hastings aims for an emotional response, whereas Austin and Bruch lay out situations and alternatives. Nonetheless, Hastings deserves credit for identifying the same basic list of principal environmental harms derived from war that Austin and Bruch did. Both books raise similar issues of policy concerning resources for science and mitigation, as well as forbearance during hostilities. They agree that the human power to destroy is growing, and they agree that a sentiment is growing in favor of controlling physical conflict. Hastings seems to demand instant perfection of humanity, whereas Austin and Bruch search for paths to improvement. The parallels and contrasts explain why the well-rounded student might gain something from reading Hastings, while Hastings aficionados definitely need to read Austin and Bruch for the much stronger factual base it provides. When divergent sources like these arrive at similar outcomes, there is probably some basic truth involved. [Sidebar] Along the way, the various authors admit to such realities as humans' continuing unwillingness to forgo war as a means of dispute resolution (much less forgo all harm to the environment), the practical impossibility of rapidly assessing damage in active war zones, legal differences between internation and intranation wars, and the paucity of ecological data and standards for valuing damage and mitigation. [Sidebar] Scientists and engineers are often "damned if they do and damned if they don't" become knowledgeable and involved in the politics and economics of their field. We cant seem to win! [Reference] References cited Austin JE, Bruch CE, eds. 2000. The Environmental Consequences of War: Eegal, Economic, and Scientific Perspectives. Cambridge (United Kingdom): Cambridge University Press. Hastings TH. 2000. Ecology of War and Peace: Counting Costs of Conflict. Lanham (MD): University Press of America. [UNEP PCAU] United Nations Environment Programme Post Conflict Assessment Unit. 1999-2003. (31 July 2003; http://postconflict.unep.ch/) [Author Affiliation] Robert Jarrett (e-mail: bjarrett@mindspring.com), a licensed professional engineer and diplomate of the American Academy of Environmental Engineers, recently retired from the Army Environmental Policy Institute, Arlington, VA 22202. He maintains research interests in environmental futures and foresight. (C) 2003 American Institute of Biological Sciences. The Persian Gulf War Oil Spill: Reassessing the Law of Environmental Protection and the Law of Armed Conflict Joyner, Christopher C., Kirkhope, James T.. Case Western Reserve Journal of International Law. Cleveland: Winter 1992.Vol.24, Iss. 1; pg. 29, 34 pgs » Jump to full text » This article cannot be translated due to its length. » More Like This - Find similar documents Subjects: War, Oil pollution, Law, International, Environmental protection, Environmental impact Classification Codes 9180 International, 4300 Law, 1540 Pollution control (see also 8340) Locations: Middle East Author(s): Joyner, Christopher C., Kirkhope, James T. Publication title: Case Western Reserve Journal of International Law. Cleveland: Winter 1992. Vol. 24, Iss. 1; pg. 29, 34 pgs Source type: Periodical ISSN: 00087254 ProQuest document ID: 1048333 Text Word Count 16592 Document URL: http://0-proquest.umi.com.oswald.clark.edu:80/pqdweb?did=1048333&sid=3&Fmt=3&clientId=11109&RQT=309&VName=PQD Abstract (Document Summary) A real connection exists between the law of environmental protection and the law of armed conflict that has evolved over several decades. The general, over-arching principle of conservation remains the primary link in the development of these 2 important bodies of contemporary international law. Although both the law of environmental protection and that of the regulation of the conduct of war share humanitarian, environmental, and conservation objectives and ideals, the law of armed conflict appears bound to assume greater relevance in situations like the 1991 Gulf War oil spill. That conclusion mirrors more the acceptability of environmental considerations in the laws of war than the acceptability of war in environmental protection law. A closer union of the 2 bodies of law might strengthen the deterrent value of international law such that tempted purveyors of environmental harm will change tactics and resort to less destructive measures. Full Text (16592 words) Copyright Case Western Reserve Journal of International Law Winter 1992 INTRODUCTION In recent years there has developed within the law of nations a special corpus of legal norms aimed at protecting the earth's environment. The philosophy undergirding this international environmental law seeks to promote a protection ethic to confront situations that put the integrity of the environment at risk. International environmental law has thus become primarily preclusive in nature. It aims to establish norms that prevent and dissuade harmful injury to the environment, rather than those that might restore or react to injuries already done.(1) Perhaps the most destructive among man's many activities that threaten the environment is that of war. Indeed, it remains axiomatic that warfare is detrimental to the environment.(2) The international community has responded to this challenge by establishing special responsibilities and obligations for governments within the existing international law of armed conflict. The modern law of armed conflict sets forth norms and expectations expressly designed to restrict the ways and means of destruction during war by mandating that belligerents consider what environmental impacts their actions will have.(3) The regulatory crossroads between the law of environmental protection and the law of armed conflict became joined during the 1991 Persian Gulf War waged by the United Nations allied coalition against Iraq. On January 16, 1991, U.N. coalition air forces attacked Iraqi military targets in Kuwait and Iraq.(4) The attack came more than six months after Iraq's conquest and occupation of Kuwait and Suddam Hussein's persistent refusal to remove Iraqi forces from Kuwait after repeated international efforts to negotiate a peaceful end to the situation.(5) On January 26, press reports indicated that Iraq had taken retaliatory action by deliberately pumping huge amounts of crude oil from Kuwait's Sea Island Oil Terminal into the Persian Gulf, beginning perhaps as early as January 23.(6) The oil that gushed forth from the supertanker facility eventually produced a forty mile oil slick along the southern Kuwaiti and northern Saudi coastline.(7) Initial estimates placed the total volume of petroleum discharged between fifteen and seventeen million gallons, amounting to the largest spill ever in the Persian Gulf.(8) Later estimates confirmed and even elevated the magnitude of the disaster. By late January, the volume of oil contaminating the Gulf had reached some 460 million gallons, the largest oil spill in history.(9) Experts predicted the disaster would be twelve times greater than the Exxon Valdez oil spill that had occurred in March 1989 off Prince William Sound, Alaska.(10) Suspicion about Iraq's motivations for its deliberate release of oil into the Persian Gulf centered on the slick's potential impact of hindering an amphibious assault by allied forces along the Kuwaiti coast.(11) Another motivation may have been the incapacitating effects such oil contamination could wreak on Saudi Arabia's desalinization plants, a circumstance that would have severely deprived allied forces of necessary water supplies.(12) In the end, however, the slick produced neither of those results. What it did produce was unprecedented environmental devastation throughout the Persian Gulf. The shrimp industry in the Gulf was practically wiped out, fish and other marine life were ravaged, and the Gulf's rich coral reef was put on the brink of extinction.(13) Highlighted by recent concern over grave global implications of contemporary environmental abuse, Iraq's resort to oil pollution as a weapon of environmental destruction raises important legal questions that need to be addressed. Accordingly, this study focuses on the international legal ramifications of a government's intentional discharge of petroleum into a local marine environment during wartime.(14) Both environmental protection law and the law of armed conflict are examined, with a special view toward assessing their regulatory interface. The problems of determining lawful intent and policy rationale are then treated. From this analysis, it is hoped that a greater appreciation will emerge of the positive dynamics between environmental law and the laws of War, not only for the case of Iraq during the 1991 Persian Gulf War, but also for the regulation of armed conflict in general. II. SETTING THE GULF STAGE On August 2, 1990, Iraq invaded and conquered its neighbor. Kuwait.(15) This military action culminated a long-standing series of disputes between the two states, including contests concerning territorial claims, oil drilling practices, and economic competition over oil pricing practices.(16) Yet the escalation to overt military aggression was not out of character for the government of Saddam Hussein, It is important to recall that a decade earlier, in September 1980, Iraq had invaded another neighbor, Iran, as the latter was recovering from the upheavals of a domestic revolution.(17) The international community, after weighing the respective dangers of supporting an aggressor authoritarian state (Iraq) or a fundamentalist Shiite Islamic state (Iran), leaned in large part toward neutrality. Yet, as one commentator observed, "The Iraqi decision to go to war with Iran, backed by a solid Arab entente,... was aimed at! crippling Iran militarily and eliminating its political dominance of the region once and for all."(18) The international community failed to rebuke Iraq sternly in 1980 for its aggression. In fact, several governments actually opted to support the Iraqi government--politically, militarily, and emotionally.(19) Iraq's precedent for invading its neighbors was established, ad arguably, tacit acceptance of that action was given by the international community. Yet waging a war of aggression was not the only international norm breached by Iraq during its nearly eight years of fighting with Iran. In 1984 and 1985, facing overwhelming numbers of enemy troops on the battlefield, Iraq resorted to using chemical weapons against Iranian forces,(20) acts clearly in contravention of its obligation under the 1925 Geneva Protocol.(21) Once the threshold of violating the Geneva Protocol had been surpassed, two chilling consequences occurred. First, the decision and discretion to use chemical weapons on the battlefield was passed by the Iraqi government to field commanders. Second, the use of chemical weapons beyond the traditional inter-state conflict became more practical as Iraq waged chemical warfare against its own defenseless Kurdish citizens in 1988.(22) Iraq also resorted to a campaign of economic dislocation. During the war against Iran, Iraqi forces launched SCUD missiles to strike oil pipelines, storage facilities, refineries, terminals, tankers, wells and offshore platforms.(23) It should not have been wholly unexpected, therefore, that similar tactics might be invoked by Iraq against forces of the allied coalition, especially at targets located in the Persian Gulf states. Premeditated sabotage of a supertanker terminal to introduce millions of gallons of oil into the Persian Gulf's marine environment grossly violated the spirit and the letter of both the law of environmental protection and the law of armed conflict. Indeed, the heinous nature of Iraq's massive pollution of the Gulf's marine ecosystem provoked widespread condemnation. One commentator exclaimed that "Hussein has shown himself capable of holding the environment as his hostage."(24) President Bush branded the policy "a deliberate act of environmental terrorism that will hurt the entire world."(25) Such rhetoric prompted coining such legally nebulous terms as "ecoterrorism" and "ecocide" to describe Iraq's act of intentionally polluting the Gulf by oil. Iraq's deliberate release of massive amounts of oil into the Persian Gulf poses a fundamental question for international law. Does such a tactic of massive marine pollution during wartime breach environmental protection law, or some aspect of the law of armed conflict, or both? Put another way, what real relevance does "the worst environmental disaster in the history of the Persian Gulf region"(26) hold for emerging international law? III. EVOLUTION OF THE LAW OF ENVIRONMENTAL PROTECTION In his 1949 essay "The Land Ethic," Aldo Leopold observed that there is a need for every citizen to realize that the earth is not here for humans to manipulate, but that we exist as part of an interrelated world. As he put it, a "land ethic" "reflects the existence of an ecological conscience and this in turn reflects a conviction of individual responsibility for the health of the land. Health is the capacity of the land for self-renewal. Conservation is our effort to understand and preserve this capacity."(27) Belief in this credo supplies the impetus for an ecological ethic that furnishes the very foundation for global environmentalism. No less important, it also represents an ecological ideal toward which humankind is urged to aspire. Humans are viewed within this modern ecological ethic as an integral, interactive part of the whole global environment, While maintenance of a pristine environment would be ideal, that condition is not realistic. Some degradation is inevitable. But the point is that man's activities should be directed so as to minimize harm done to the environment, The global ecological perspective, with its emphasis on respect for environmental integrity, has come about only recently. The United Nations in 1972 produced a set of normative guidelines for states that embody fundamental principles of environmental preservation and conservation. These guidelines were set out in the Declaration of the United Nations Conference on the Human Environment (the Stockholm Declaration), articulated on June 16, 1972.(28) As proclaimed in the Declaration's second principle, "natural resources of the earth, including the air, water, land, flora, fauna and especially representative samples of natural ecosystems, must be safeguarded."(29) There is little doubt that, with respect to the Persian Gulf, this duty to safeguard those natural resources and ecosystems applied to all states.(30) The Stockholm Declaration established other general principles that have become more technical as the international community has mobilized to address ever pressing concerns, such as toxic pollutants and dumping. These additional responsibilities are aimed at banning discharge practices that might inject serious or irreversible damage upon the local ecosystem. Especially prohibited in this regard is discharge of toxic substances and release of heat in such quantities or concentrations that might damage the environment.(31) The Stockholm Declaration also emphasizes prevention of pollution. States are required to take "all possible steps" to preclude pollution of the seas by any substances that might be hazardous to human health, or harm living marine resources, or damage amenities, or interfere "with other legitimate uses of the sea."(32) The unprecedented magnitude of the Gulf oil spill strongly suggests this international ecological norm was severely breached. The keystone of the Stockholm Declaration's mandate against transnational pollution is found in its Principle 21. This provision at first blush might seem to release a state from environmental protection responsibilities under the cloak of national sovereignty as it provides that states have the "sovereign right to exploit their own resources pursuant to their own environmental policies."(33) Even so, Principle 21 goes on to posit that states have "the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction."(34) This fiat confirms the duty that states are bound not to create environmental conditions or pollution circumstances that might injure the territory or property of other states.(35) To facilitate international cooperation, the concept of liability--compensation for wrongs done and damages committed whether intentional or not has a long tradition in international law.(36) This concept of compensation finds expression in Principle 22 of the Stockholm Declaration which indicates that "States shall cooperate to develop further the international law regarding liability and compensation for the victims of pollution and other environmental damage caused by activities within the jurisdiction or control of such states to areas beyond their jurisdiction."(37) Interestingly, the wording "activities within the jurisdiction or control" eliminates the potential dilemma (and subsequent loophole) of determining the precise legal status of the territory from which the causal activities occurred. A state would be responsible for damages, irrespective of whether its government possessed legal jurisdiction over another territory (as Iraq claimed over Kuwait at the time), or was merely a belligerent occupation force, or had been evicted from the area. It might be noted that the Stockholm Declaration offers a possible caveat by which some state might seek to evade responsibility for its actions. In full, Principle 23 provides that: Without prejudice to such criteria as may be agreed upon by the international community, or to standards which will have to be determined nationally, it will be essential in all cases to consider the systems of values prevailing in each country, and the extent of the applicability of standards which are valid for the most advanced countries, but which may be inappropriate and of unwarranted social cost for the developing country.(38) In this context, a government might argue that its resort to widespread pollution as a weapon reflected either national, ethnic, or religious norms, or represented a "poor-man's" weapon of mass destruction. However, any of these contentions would be difficult to substantiate convincingly. In addition, one can not help but wonder how to square the notion that destruction of the very resources necessary for development could be deemed necessary to preserve a state's cultural integrity and ensure its physical survival.(39) The normative pillars of the Stockholm Declaration were built upon a foundation of prior international conventions and regional agreements. Even so, in support of the normative considerations that flowed from the Stockholm Declaration, the international community has since devised an extensive body of legal instruments for protecting the earth's environment.(41) Especially pertinent in this regard are those international instruments intended to safeguard against marine pollution.(42) Over the past four decades, several agreements dealing with pollution from vessels have been promulgated, largely under the auspices of the International Maritime Organization (IMO) (formerly the InterGovernmental Maritime Consultative Organization).(43) These international agreements set standards and regulations for pollution control, while leaving enforcement in the hands of national governments. Global rules to combat marine pollution have generally evolved from focusing on ship-generated oil pollution, through a more comprehensive approach to pollution, to the regulation of dumping activities, and finally, to the very broad provisions currently found in the law of the sea.(44) At present, there are no specific global conventions that directly regulate pollution from land-based sources or from offshore drilling platforms, since these activities are more readily amenable to regulation through regional instruments. The first major international attempt specifically to curb pollution of the seas by oil actually antedated the Stockholm Declaration and came with the promulgation in 1954 of the International Convention for the Prevention of Pollution of the Sea by Oil.(45) This agreement specifically prohibited the "discharge from any tanker...of oil or! any oily mixture the oil in which fouls the surface of the sea"(46) and set penalties commensurate with those that might be imposed under the law of the territory in question.(47) Amended in 1962 and 1969, this convention was the first tentative move toward cleansing the oceans from oil pollutants and attaining a balance between responsibilities of flag and port states.(48) Respective to the process of creating a norm that asserts nonpollution of the marine environment, two of the 1958 Geneva Conventions of the Law of the Sea contain specific anti-pollution provisions. The Convention on the High Seas(49) obligates contracting parties to prevent pollution of the sea by the discharge of oil from ships or pipelines, or from activities associated with the exploration and exploitation of the seabed and subsoil, and to take measures that prevent pollution from the dumping of radioactive wastes.(50) The 1958 Convention on the Continental Shelf(51) obligates parties to protect living resources of the sea from "harmful agents" while in the process of offshore drilling.(52) Taken in tandem, these conventions codified two fundamental principles for international management of ocean pollution: (1) Freedom of the seas must be exercised with reasonable regard to the interests of other states; and (2) There exists the manifest need for states to preserve a reasonable balance between their needs and the ways and means in which they use ocean space. In the wake of the Stockholm Conference, a more significant step was taken in 1973 with the International Convention for the Prevention of Pollution from Ships (MARPOL),(53) later modified by the Protocol of 1978 which introduced certain improvements into the Annex dealing with oil pollution.(54) Article 1 of MARPOL instructs the parties to "prevent the pollution of the marine environment by the discharge of harmful substances or effluents containing such substances in contravention of the Convention."(55) The MARPOL 1973/78 Convention has five annexes, numbers I and II of which are mandatory and deal with pollution by oil and noxious substances, respectively.(56) No question exists that this instrument represents a significant piece of global legislation that enjoys broad authority in combatting pollution of the marine environment. In 1972, the most important instrument for prohibiting the dumping of harmful substances from vessels at sea was promulgated as the so-called London Dumping Convention.(57) This agreement builds on earlier conventions by reiterating a pledge among contracting states to "take all practicable steps to prevent the pollution of the sea by the dumping of waste and other matter that is liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate use of the sea."(58) The London Dumping Convention in sum strives to control the amount and kinds of wastes dumped into the oceans in order to prevent damage to marine life and human opportunities. Relatedly, the 1972 Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft(59) reinforced the commitment among states not to pollute the marine environment. Parties pledge "to take all possible steps to prevent the pollution of the sea by substances that are liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea."(60) Perhaps the Convention most directly relevant to the act of discharging oil, though not directly applicable to the Gulf area, is the 1974 Convention on the Prevention of Marine Pollution from Land-Based Sources.(61) This agreement specifically forbids the act of deliberately discharging oil into the marine environment. Under this convention the parties pledge that they will take all possible steps to prevent pollution of the sea, by which is meant the introduction by man, directly or indirectly, of substances or energy into the marine environment (including estuaries) resulting in such deleterious effects as hazards to human health, harm to living resources and to marine ecosystems, damage to amenities or interference with other legitimate uses of the sea.(62) The convention also would obligate parties to assist each other to prevent incidents that might result in pollution from land-based sources, as well as to minimize and eliminate the consequences of such incidents and to exchange information to facilitate that goal.(63) International agreements designed to prevent accidents at sea undoubtedly strengthen the global regime of marine environmental protection law against pollution by oil. Five principal instruments, all drafted under the auspices of IMO, are presently in force: the 1966 Convention on Load Lines;(64) the 1972 Convention on Safe Containers;(65) the 1972 Convention on the International Regulations for Preventing Collisions at Sea;(66) the 1974 Convention for the Safety of Life at Sea;(67) and the 1978 Convention on Standards of Training, Certification and Watchkeeping for Seafarers.(68) Especially important as environmental protection law for the Persian Gulf region is the 1978 Kuwait Regional Convention for Co-Operation on the Protection of the Marine Environment from Pollution.(69) This instrument was designed to develop an integrated management approach to the marine environment of the Persian Gulf region. The purpose of the convention specifically obligates contracting parties to take "all appropriate measures" to "prevent, abate, and combat pollution in the Sea Area"(70) caused by "intentional or accidental discharges from ships."(71) Furthermore, the convention obligates parties to take all appropriate measures to prevent, abate and combat pollution in the Sea Area caused by dumping of wastes and other matter from ship and aircraft, and...ensures effective compliance in the Sea Area with applicable rules relating to the control of this type of pollution as provided for in relevant international conventions.(72) Given the heavy tanker traffic sailing through the Persian Gulf, the main intent of the 1978 Kuwait Convention aims at curbing pollution of the sea by oil. Highlighting this point is a special protocol for combating pollution by oil and other harmful substances in cases of emergency.(73) Dumping is not defined in the convention, nor were annexes appended to identify what harmful or noxious substances might present particular threats to marine life, fisheries, or human health in the region. Even so, the fact remains that, regarding dumping, the Kuwait Convention intends to ensure effective compliance with existing international conventions relating to this type of pollution.(74) At the very least, then, the legally binding obligations in the London Dumping Convention and MARPOL 73/78 would be pertinent to the dumping or discharging of any substances into the gulf by ships or littoral states. Accordingly, the deliberate release of toxic petroleum into the Persian Gulf marine ecosystem would be expressly forbidden. Finally, not to be overlooked is the broad anti-pollution mandate articulated in the 1982 Convention on the Law of the Sea.(75) The relevant environmental protection provisions comprise Part XII of this agreement, providing for the "protection and preservation of the marine environment."(76) In a real sense, these provisions are not merely restatement of existing conventional law or state practice. Rather, they create a new public international legal framework to deal with degradation of and threats to the marine environment. Article 192 unequivocally fixes the principal duty of states relative to the marine environment: "States have the obligation to protect and preserve the marine environment."(77) The obligatory language is unshakable. States that violate this fiat to protect and preserve the marine environment thus violate international law. Indeed, Article 235 substantiates this conclusion as it affirms that "states are responsible for the fulfillment of their international obligations concerning the protection and preservation of the marine environment. They shall be liable in accordance with international law."(78) Article 194 further strengthens these provisions by imposing an affirmative duty on states not to pollute. This article indicates that the Convention is concerned with "all sources of pollution of the marine environment, and states are mandated to take all measures necessary to prevent, reduce and control pollution of the marine environment from any source."(79) With respect to land-based pollution, the 1982 Law of the Sea Convention directs states to take legislative action "to prevent, reduce and control pollution of the marine environment from land-based sources...taking into account internationally agreed rules, standards and recommended practices and procedures."(80) Moreover, states are directed to adopt laws and take measures necessary "to prevent, reduce and control pollution" from dumping.(81) To this end, governments are obliged to "endeavor to establish global and regional rules," with national anti-pollution legislation being "no less effective...than the global rules and standards."(82) The 1982 Law of the Sea Convention underscores the principal premise of the law of environmental protection, namely that the component parts of the global ecosystem are interrelated, and sensitive to alteration elsewhere in the system. Furthermore, the entire environmental system, though self-renewing, is threatened by burgeoning population growth, rising expectations for socioeconomic development and the resultant output of greater amounts of pollution.(83) Unfortunately, the oceans have become the repository of much of this manmade waste. As regards ocean space, the principles of the law of environmental protection clearly assert that states are responsible for controlling pollution of the sea that might cause damage to another state's territory.(84) The principle of good neighborliness requires that states not permit acts within their territory or jurisdictional competence to be done when they might negatively impact on the rights of neighbors.(85) Put tersely, states do not have the right to contaminate international common space areas such as the high seas for their own national expediency or convenience.(86) They are obligated to preserve and protect those regions, not only in their own interests, but for the interests of all mankind.(87) There is little question that this partial enumeration of pertinent international and regional agreements affirms the normative rule that states are not permitted to pollute the oceans either at will or with impunity. Each agreement alone constitutes an element of international law binding upon its signatories. Taken together, these agreements have acquired the quality and force of an international norm that mandates that governments have a duty not to pollute international ocean space.(88) In addition to the treaties and conventions which supply useful evidence of international law, a second principal source of the law of environmental protection is found in the normal practice and custom of states.(89) Indeed, a combination of both the actual behavior of states and the opinions of legal scholars and practitioners in the form of opinion juris furnishes the foundation for international customary law.(90) What has become evident from the multitude of documents and treaties, traditional practices, and professional opinions is that an international consensus has emerged, recognizing the need for states to have an obligation to protect the environment.(91) According to this conclusion, Iraq breached the emerging international norm of environmental protection. IV. EVOLUTION OF THE LAW OF ARMED CONFLICT Acknowledging that humanity constitutes but a part of the global ecology, the struggle to regulate social conflict reveals a growing understanding of the impact that war exacts upon the environment. There is little question that war occurs as an all too regular activity of man's existence. Moreover, despite all attempts to limit and outlaw it, war seems driven by natural impulse and may occur as an inevitable consequence of international competition. This conclusion does not bode well for the environment, particularly since the ultimate product of war is the destruction of life and property. The conduct of warfare, however, has not gone unregulated.(92) Since antiquity, religious and philosophical systems have sought to institutionalize war and to subject it to the rule of legal principles. Philosophers and writers including Thucydides,(93) Aristotle,(94) Plato,(95) Augustine,(96) and Thomas Aquinas(97) explored the general rationale that leaders of the empire or the church possessed the discretion to choose the justification for war, but the means, including laws, should be developed through customary practice among equals (i.e. sovereigns).(98) It is only in modern times, however, that the impacts of war on the environment have assumed such salience as to be elevated to international legal concern. By the time of Grotius during the 16th century, the two conceptual threads of the evolving laws of war--namely, the justification for war and the conduct of war--began to unravel.(99) A rift between the two doctrines developed. Nearly two centuries later, the "positivist" element matured in the work of Emmerich de Vattel, who distinguished between the "necessary law of nature" and the "voluntary law of nations."(100) Whereas the former concerned natural law and the conscience of sovereigns, the latter addressed the law that nations applied voluntarily in their relations with one another.(101) The elevated status of positivist law suggested that only in regard to the necessary law of nature may the question of a war's just cause be raised. The voluntary law of nations, i.e., positivist international law, sought not to venture into the intrinsic justice of wars.(102) In sum, the continued development of the positivist school came about at the expense of the law-of-nature focus.(103) By the late 19th century, positivist legal theorists had largely rejected the distinction between "just" and "unjust" wars, and had relegated war to an act entirely driven by the uncontrolled sovereign will of each individual state.(104) Justification for war had been downgraded to only a secondary consideration, a trend perhaps attributed to the exponential increase in the destructive capability of modern warfare.(105) The righteousness of a sovereign's cause proved little solace to combatants, innocent civilians, and the maimed as they were increasingly drawn into belligerent situations.(106) Hence, international law was turned away from considerations of moral purpose or ethical transgression and was redirected to more pragmatic concerns of damage limitation.(107) The occasion ripened for codification of these positivist norms and customs.(108) As a result, the laws of armed conflict were born out of the Hague Conferences in 1899 and 1907 through a series of conventions.(109) These documents, while addressing some issues of justification, focused mainly on the conduct of war. With a codified regime for warfare in place, the onset of conflict would produce legal consequences for belligerents and third parties alike, irrespective of the possibility that its outbreak may or may not have involved the abrogation of a specific international normative obligation.(110) Bolstered by the two Hague Conferences, positivists clearly gained the ascendence and asserted that justice, righteousness and rectitude had little role to play in a world regulated by conventions and arms control agreements. The sobering experience of massive death and destruction wrought by World War I, however, brought about a reconsideration of these attitudes.(111) International legal opinion came to accept the belief that states are culpable for initiating a policy of warfare.(112) This revival of accountability, coupled with the associated sense of righteousness in the Versailles Treaty, rekindled international legal efforts to distinguish between just and unjust wars, a responsibility that had largely been ignored since the late 1700s.(113) Regrettably, neither philosophically highlighting war's ethical status, nor the Kellogg-Briand pact outlawing aggressive war as an instrument of national policy,(114) nor even the availability of the League of Nations were able to prevent World War II. Damage to society and the environment outstripped attempts to control international conflict. At the conclusion of World War II, however, the international community moved quickly on both philosophical fronts. The positivist doctrine was bolstered by the Nuremberg Tribunal as it held that principles in the Hague Conventions on Land Warfare of 1899/1907 conveyed the force of customary law that would be binding even upon non-signatory states. Those adhering to the "necessary law of nature" school were won over by the creation of both crimes against peace and crimes against humanity as evinced in the Nuremberg experience(115) and subsequently codified in the 1949 Geneva Conventions.(116) Again, war did not end with the entry into force of new international legal constraints. The experience of the Korean and Vietnam wars sparked negotiations in 1977 of two Additional Protocols to the 1949 Geneva Conventions.(117) The emphasis of international law shifted back to positivism as Protocol I, dealing with the protection of victims of international conflict, refocused attention on the means and methods of warfare.(118) Importantly, it is within this positivist approach of stressing methods and means for waging war that environmental issues have come to be forthrightly addressed. It is apparent that the "just" or "unjust" nature of a conflict in modern times hardly affects the means of waging contemporary warfare. It is thus within the positivist school of the law of armed conflict that the link has been made to the law protecting the environment.(119) V. ASSESSMENT The law of armed conflict generally is a civilized international attempt to control the social phenomenon of war.(120) Through international consensus, states have been lawfully deprived of unlimited choice in their means of inflicting damage upon an enemy.(121) As warfare has moved from the battlefield to affect population centers, the law of armed conflict has placed increased emphasis on special protection of civilians and property, such that today, through convention and custom, wanton destruction of property clearly violates the law of armed conflict.(122) The law of armed conflict is governed by two fundamental principles, necessity and proportionality.(123) Respective to necessity, if it can be convincingly demonstrated that the use of armed force is necessary to preserve public order, that determination may legally justify the use of armed force.(124) A threat must be real and imminent, however, not imagined or hypothetical.(125) Under the same concept, necessity allows a military commander to use only that degree and kind of force required to accomplish the mission's objective.(126) This brings forth the notion of proportionality as a criteria for use of force.(127) In this respect, the limitation of proportionality restricts the options available to a commander in gauging the military necessity of a given action in two ways: (1) the principle of humanitarian concern; and (2) the doctrine of economy of forces.(128) Humanitarian issues reflect not only custom and respect for the combatants, but also represent both good will and good faith. It is reasonable to treat the defeated enemy's army well. Fair treatment encourages reciprocity and reduces ill will.(129) The unwarranted destruction of life, land and property runs contrary to the norms and expectations of humanity, as well as the need for world public order.(130) In addition to the humanitarian concern, which strikes a strong responsive moral chord in the jurist, it is the highly pragmatic military doctrine of "economy of force" that plays an even more salient role in influencing military decisions.(131) Economy of force is the minimum force needed to accomplish the military objective.(132) As noted officially by the U.S. Department of the Navy, military necessity "permits a belligerent to apply only that degree and kind of regulated force, not otherwise prohibited by the laws of war, required for the partial or complete submission of the enemy with the least possible expenditure of time, life, and physical resources."(133) Yet the twin pillars of military necessity are not mutually exclusive. Use of the "economy of forces" principle can also be elevated to the humanitarian appeal contained in the law of armed conflict. Application of economy of force during the implementation of a military campaign contributes to military efficacy. Indeed, to destroy objects of ecological value that are not deemed necessary military objectives is not a economical use of force; it expends military capability without returning any net gain in military advantage. By the same token, pragmatic utilitarians will defend such conservation practices as well.(134) To summarize, the use of force in international law is delicately balanced between the precepts of military necessity and proportionality as articulated within the following context: (a) force must be regulated; (b) force must be necessary; (c) a commander must use the minimum force necessary; and (d) force must not otherwise be forbidden by legally binding law of armed conflict, orders from a superior, non-binding rules of engagement, or any other legal fiat.(135) This same principle can be extrapolated to environmental considerations as well. Wanton destruction of the environment diverts limited military resources away from the penultimate military purpose of terminating the war once favorable military objectives have been achieved. Philosophically, both laws for environmental protection and armed conflict share the fundamental concept of conservation.(136) This driving principle of conservation undergirds the normative quality as well as practical utility of both bodies of international law. Importantly, the legal implications of the Gulf War oil spill supply a confluence for the law of environmental protection and the law of armed conflict--a confluence that magnifies the unlawfulness of Iraq's aggression against Kuwait. The intuitive normative wrongs consequently find form and substance in violations of the codified international laws for both environmental protection and regulation of armed conflict. VI. THE LEGAL NEXUS BETWEEN ENVIRONMENTAL PROTECTION AND ARMED CONFLICT Viewed within the dual contexts of environmental law and the laws of war, it is not difficult to conclude that by unleashing the massive oil spill the Iraqi leadership abrogated certain regional and international legal responsibilities. But which set of laws might furnish the most effective or most appropriate means for lodging claims against Iraq? The prevailing opinion suggests that protection of the environment must fall within recognized principles in the law of armed conflict.(137) This point rings especially true given that Iraq released the oil spill as a deliberate policy during a situation of belligerency. Drawing upon the doctrine of military necessity and the common theme of conservation, the law of environmental protection would hold a special place in developing charges and shaping arguments against the Iraqi government. It is because of this system of shared ethics that the law of environmental protection can be employed to bolster facets of the law of armed conflict that relate to limiting environmental damage during war. Furthermore, it serves to prohibit manipulation or degradation of the environment for belligerent purposes. Preeminence of the law of armed conflict may be explained by its long tradition in both international custom and state practice.(138) As previously noted, humanitarian and environmental philosophies, principles and practices during war have been contemplated and codified for centuries.(139) The law of the environment, on the other hand, has only recently attracted the attention of the international community.(140) The 1954 Oil Spill Convention marked the first major attempt to address worldwide environmental concerns.(141) The 1972 Stockholm Declaration and progressive development of ocean law culminating in the Third United Nations Law of the Sea Convention over the subsequent decade reflected truly bold and global thinking pertaining to environmental issues.(142) Yet, as codified international law, the law of environmental protection has evolved only since World War II. Though obviously possessing considerable importance, the law of environmental protection does not yet command the same degree of broad-based historical familiarity or global acceptance as does the law of armed conflict. No less important is that the international community, drawing upon the heightened awareness and sensitivities of environmental issues, is working to integrate such concerns into the body of armed conflict law. Protocol I, promulgated in 1977, incorporates the fundamental consensus regarding environmental protection against military activities.(143) Article 35 of that instrument sets the following as basic rules in international law for the methods and means of warfare: 1. In any armed conflict, the right of the parties to the conflict to choose methods of warfare is not unlimited. 2. It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering. 3. 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.(144) Importantly, Protocol I reaffirms the international community's humanitarian concerns during the course of conflict. To this end there exists a convergence of ideals in Protocol I. In particular, the intention is that the "Law of the Hague," developed mainly with interstate rules governing the use of force, and the "Law of Geneva," developed to ensure protection of persons from the effects of armed conflicts, should dovetail in substantial degree.(145) Such a convergence not only supplies greater coincidence in the law regulating the use of force; it also serves to reinforce the nature and normative quality of that law. The broad foundation of the law of armed conflict, rich in both detail and history, prompts the conclusion that it will retain greater consequence and heavier legal weight than the more recently emergent environmental law. Perpetration of "widespread, long-term and severe damage"(146) to the environment is specifically violative of Protocol I of the law of armed conflict;(147) it has not, however, been made a specific norm formally expressed in widely recognized tenets of environmental international law as such. Ideally, the law of environmental protection should produce a record of acceptance equally impressive to that for armed conflict. More likely, however, environmental law's greatest impact will be relegated to setting out necessary limitations on the means, methods and objects of war. Thus, pertaining to the Gulf War oil spill, the international course of reaction most likely will turn to violations of the law of armed conflict. The interface between the two complimentary bodies of international law thus becomes apparent. A critical need arises to consider ecological principles and experiences of environmental protection law when interpreting the environmental aspects of the law of armed conflict. This recommendation underpins evaluation of the Gulf War oil spill under international law as well as considering conceivable explanations for Iraq's action. VII. INTENT AND APPROPRIATE INTERNATIONAL LEGAL RESPONSES The Persian Gulf is a narrow, shallow body of water that is virtually landlocked. No rivers flow into it from the Saudi side, and the only significant water exchange is with the Indian Ocean, through the Strait of Hormuz. As such, dispersal of massive oil spills in the Persian Gulf is difficult and protracted.(148) The devastating oil spill released into the Persian Gulf shortly after hostilities broke out between the allied coalition and Iraq deeply disturbed the international community.(149) Almost immediately. rationales were put forward to understand Saddam Hussein's pursuit of such a noxious strategy. Three theories surfaced to explain Iraq's motivation: (1) the oil spill had a military purpose, i.e., it would create a defensive barrier of gooey beaches to impede against an amphibious assault by the allied coalition; (2) it was a terror tactic, as averred by President Bush's description of the incident as an act of "environmental terrorism" to befoul desalination plants in Saudi Arabia. (Though open to conjecture, a related theory suggested that Iraq aimed to dispirit public opinion or perhaps even outrage the coalition into premature assault); and/or (3) there was actually no strategy, release of the oil slick was merely one in a series of tactical probes by Iraq that sought to test allied forces and possibly disrupt them.(150) Determination of intent remains an important step towards identifying specific violations of the law of armed conflict, as well a appropriate international responses. Regarding the possibility of a military purpose, attacks upon the environment as a means of waging war are not new. History is replete with episodes in which belligerents have attempted to defeat the enemy by attacking the environment.(151) Within the framework of military purpose, Iraq's oil pollution may be explained as a defensive act aimed at slowing, diverting, or deterring a impending amphibious assault.(152) The Iraqi leadership might have reasoned that a "scorched-earth"--or put more aptly, a "spoiled-sea" policy--was both required and lawful, given its situation of desperation. Indeed, the law of armed conflict does acknowledge that a scorched-earth policy of belligerents may at times be rendered a proper action of military necessity.(153) Such a sentiment is alluded to in Protocol I, Article 54 which would permit a scorched-earth policy by a state defending its territory from invasion when the state has such territory under its control.(154) Two salient questions, one of theory and one of practice, surface if this argument is pursued in detail. First, for an argument based on a scorched-earth (or spoiled-sea) policy to be acceptable, some credible expectation must exist for the belligerent to prove that such actions had a reasonable chance for success. The unlawful occupation of Kuwait exposed the Iraqi military to attack and invasion from land, sea and air. The overwhelming numbers and firepower of allied coalition forces should have indicated to Iraq that any barrier to sea-borne invasion would, at best, only hamper invasion efforts, with no real prospect of thwarting an impending attack indefinitely. Secondly, the Mina al Ahmadi pipeline and Sea Island Tanker Terminal lay ten miles off the Kuwaiti shore and about forty miles north of the Saudi border.(155) Perhaps the Iraqi government believed that through its action it could turn the Persian Gulf into a sea of oil, or possibly even a blazing inferno; that scenario, however must have appeared at best fanciful. A more reasonable expectation should have reckoned that the resultant oil slick might have covered only one-third of the approximately 120 miles of open shoreline available for an amphibious invasion. As a consequence, the spill could only deny an invasion force one-third of its potentially available amphibious landing sites. Further, it would obviously have no deterrent effect on the prospect of invasion by land or air. To attach military purpose to the oil spill appears to be less than of "imperative" necessity and would therefore fail to fulfill the requirements for permissible environmental destruction set out in Protocol I.(156) Iraq remained legally constrained by principles in the law of armed conflict which assert that the right of the defender to adopt means of repulsing an attacker is not unbounded.(157) That Iraq failed to honor those principles is an important comment on the lackluster character of that government as a law-abiding member of the international community.(158) As noted earlier, destruction of the environment as a premeditated policy during war is not new. Frequently associated with scorched-earth campaigns. General William T. Sherman once remarked in 1863 that "the only possible way to end this unhappy and dreadful conflict the American Civil War!...is to make it terrible beyond endurance."(159) This concept of massive coercive warfare utilizes terror to subjugate the enemy. Certain legal problems arise in assessing the terror tactic as an explanation for Iraq's action. First, the term "environmental terrorism" may be catchy, but it simply is not useful in international law. No consensus has developed on a definition of terrorism, either within the United Nations, among the policy analysts, or by international legal scholars.(160) Resort to the term "terrorism" merely muddles the relevant issues and confuses international opinion over the legal questions motivating a violent act.(161) Use of terror tactics against civilians in warfare is generally condemned.(162) The issue was discussed during the drafting of Protocol I in the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts.(163) Indeed, Article 51 of the adopted Protocol I asserts that "the civilian population as such, as well as individual civilians, shall not be made the object of attack. Acts or threats of violence, the primary purpose of which is to spread terror among the civilian population, are prohibited."(164) Use of terror violence against a civilian population is thus forbidden during international conflict. In addition to semantic and legal problems of identifying the oil spill as a terror tactic, a philosophical case against "eco-terrorism" may be posited as well. The Stockholm International Peace Research Institute (SIPRI) expressed the point aptly when it observed, "Capitulation cannot be achieved by terror if there is still military hope left. If there is no hope left, terror is unnecessary."(165) SIPRI's analysis is deductively instructive: "In view of this, the conclusion can be drawn that military necessity in the form of coercive warfare is no argument for the thesis that the rule forbidding attack on civilian populations as such should no longer be considered valid."(166) In principle, use of terror as a policy instrument by states is rejected as unlawful by the international community in times of war.(167) This trend hopefully will continue through the codification of crimes of terror in times of peace, including destruction of the environment to instill political fear in a population. A third school of thought postulated that Iraq's polluting action lacked any strategic purpose per se; the oil spill was the act of a despot probing the will of the enemy, or perhaps even that of the whole international community. Release of the oil slick might have reflected an attempt by Iraq to disrupt or strain the bounds of international norms.(168) Expressed tersely, through its policy of intentional environmental degradation, Iraq acted as a mean-spirited international bully in the Persia Gulf. The contention that Iraq released a massive oil spill in the gulf out of sheer vileness is especially disturbing when viewed in light of recent international legal developments. The 1982 Law of the Sea Convention introduced the notion of ocean space beyond the limits of national jurisdiction being legally considered as the "common heritage of mankind."(169) Within the context of the 1982 Convention on the Law of the Sea, the high seas are to be used for the benefit of mankind and no claims of sovereignty or appropriation are to be recognized.(170) Such a positivist philosophy describes open space as res communis, belonging to no state in particular and to the world community in general.(171) Unfortunately, this philosophy leaves the marine environment exposed and vulnerable to exploitation. As John Kindt has opined, "According to the concept known as the tragedy of the commons,' property which is part of Mankind's common heritage does not belong to anyone in particular, and therefore, there is no individual incentive to preserve it."(172) Simply put, since each state is sovereign, each government theoretically could despoil the environment in any manner it deemed necessary. Iraq clearly desired to seize the advantage of such a rationale. As a sovereign state, however, Iraq still remains subject to certain limits and rules of international law. The oil slick originated some ten miles off the coast of occupied Kuwait--fully within the territorial sea delimitations claimed by both Kuwait and Iraq.(173) Moreover, the issue of state responsibility must be weighed in the balance. It should be realized that an international crime may result from seriously abrogating an obligation of environmental protection law, particularly by the intentional discharge of massive pollution into high seas regions.(174) Such international community environmental norms were articulated as early as 1938 in the Trail Smelter Case.(175) Though Iraq is a sovereign state, it nonetheless is bound to abide by international law, if for no other reason than to safeguard its own long-term interests in international affairs.(176) The failure by the Iraqi government to fulfill its international obligations under both the law of environmental protection and the law of armed conflict could lead to various unilateral, regional and international actions designed to discourage similar acts in the future.(177) Although excessive exploitation of the common heritage of mankind might one day drift towards the "tragedy of the commons" on the high seas, Iraq's deliberate discharge of oil occurred well within the territory under its unlawful occupation.(178) While comprehensive, precisely defined norms for the protection of the global environment may not currently be codified, international legal opinion remains heavily weighed against deliberate acts of environmental destruction, especially those which have potentially far-reaching destructive impacts on neighboring states.(179) That this act of degradation occurred as part of a larger unlawful act of aggression highlights its impermissible character. Although enthusiasm for establishing an international tribunal to try Iraqi officials for war crimes--including acts which destroyed Kuwaiti national property--appears to be waning,(180) important precedents for such trials do exist. Both the Nuremberg and Tokyo war crimes trials after World War II focused on system criminality; that is, the proceedings were not concerned with violations of the laws of combat. Rather, the trials tended to focus more on official violations of the laws of occupation, especially gross violations of the rights of civilian populations.(181) Were a case to be marshalled against the Iraqi leadership in the Gulf War, concentration should fall on violations of belligerent occupation.(182) such laws are well developed, internationally codified, and draw heavily from the customary practice of states.(183) Indeed, rules affecting belligerent occupation are codified in Section III of the Hague Regulations respecting the Laws and Customs of War on Land, and are entitled "On Military Authority over the Territory of the Hostile State."(184) In setting out its mandate, the Nuremberg court in fact determined that the Hague Conventions of 1899 and 1907 had already become customary law and were therefore binding on all states.(185) Just as the Nuremberg and Tokyo War Crimes trials and the 1949 Geneva Conventions advanced the laws of war towards a more humanitarian ideal, Protocol I also makes a contribution in damage limitation. Should Protocol I be invoked in the absence of a "military necessity defense," that instrument would hold a commander criminally liable when actions ordered by the commander cause extensive damage.(186) Damage, of course, is not merely consigned to obliteration of a military target. Excessive damage also pertains to collateral damage of civilian areas and to destruction of the physical environment.(187) Military doctrine has purposefully attempted to limit in law and policy such extraordinary destruction.(188) International law has substantially broadened its humanitarian emphasis during the past century to encompass environmental protection during war.(189) Interestingly enough, the Nuremberg Trials actually supplied a significant source of customary law against devastation of the environment. Several defendants were tried for what amounted to the massive devastation of the environment.(190) Though acquitted, the willingness of the tribunal to subject the accused to trial, and the finding by the tribunal that "devastation prohibited by the Hague Rules and the usages of war is not warranted by military necessity"(191) affirmed that the premeditated destruction of the environment during war is not tolerated under the customary law of armed conflict. In 1977, a special international agreement was negotiated that outlawed ecological warfare. Developed within the United Nations, the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Technique (ENMOD)(192) asserts that parties undertake "not to engage in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as a means of destruction, damage or injury to any other State party."(193) The ENMOD Convention deals with environmental changes produced by deliberate manipulation of natural processes. Though the ban under the ENMOD Convention applies to the conduct of military operations during armed conflict, its prohibitions are intended to be distinct from conventional warfare that might result in adverse impacts on the environment. In short, this agreement prohibits manipulation of natural processes (including the biota, lithosphere, hydrosphere, or atmosphere of the latter) as an instrument of war if their effects are "widespread, long-lasting or severe."(194) While still important, it remains regrettable that this agreement specifies the level of damage to be prohibited. Outright proscription of any environmental modification for hostile purposes would have supplied a stronger injunction against environmental warfare. VIII. CONCLUSION A real nexus exists between the law of environmental protection and the law of armed conflict that has evolved over several decades. The general, over-arching principle of conservation remains the primary link in the development in these two important bodies of contemporary international law. The law of environmental protection is a comparably newer body of law that only recently has emerged from under the shadow of broader humanitarian law. Its relative novelty admittedly poses certain difficulties for international law. In fact, requirements of state responsibility for environmental protection and preservation, as well as attendant questions of liability and compensation for environmental injury currently remain in relative flux and legal limbo. Even so, as these environmental protection laws mature outside the war-time scenario, environmental priorities must be given additional consideration by government decisionmakers and military planners. This prerequisite has become firmly fixed in both the laws of environmental protection and armed conflict. And the urgency for this development in international law was boldly underscored by the Iraqi oil spill. Although both the law of environmental protection and that of regulation of the conduct of war share humanitarian, environmental and conservation objectives and ideals, the law of armed conflict appears bound to assume greater relevance in situations like the 1991 Gulf War oil spill. That conclusion mirrors more the acceptability of environmental considerations in the laws of war than the acceptability of war in environmental protection law. Yet, perhaps closer union of the two bodies of law might strengthen the deterrent value of international law such that tempted purveyors of environmental harm will change tactics and resort to less destructive measures, The notion of "ecocide" perpetrated as a crime against the environment may well become more fully recognized and legally relevant as a result of the 1991 Persian Gulf War. Governments will be more reluctant to resort to wholesale policies of wanton environmental waste and destruction, or to view such strategies as cost-effective, necessary tools of war. Still, establishing "ecocide" as a specific crime under international law would serve twin purposes, namely, to deter future environmental abuse and to strengthen the moral foundations of ecological conservation and protection. Making environmental destruction an international crime would firmly fix Leopold's "land ethic" as a relevant construct within the laws of war. Importantly, then, consideration of environmental preservation will have emerged as an integral component of the established tradition of the laws of armed conflict. No less important, this would also reaffirm the vital place held by the law of environmental protection during times of peace. * Professor of Political Science and Member of the Elliott school of International Affairs, The George Washington University. ** Research Coordinator, Terrorism and Law-Intensity Conflict Program, U.S. Global Strategy Council. (1) See generally Oscar Schachter, The Emergence of International Environmental law, 44 J. Int'l Aff. 457 (1991). (2) See generally Stockholm International Peace Research Institute (SIPRI), Ecological Consequences 0f the Second Indochina War (1976); SIPRI, Environmental Warfare: A Technical, Legal and Policy Appraisal (Arthur H. Westing ed. 1984); SIPRI, Weapons of Mass Destruction and the Environment (1977). (3) See generally Frits Kalshoven, Constraints on the Waging of War (1987). (4) Andrew Rosenthal, U.S. and Allies Open Air War on Iraq; Bomb Baghdad and Kuwaiti Targets; "No Choice" But Force Bush Declares, N.Y. Times. Jan. 17, 1991, at A1. (5) See generally Christopher C. Joyner, Sanction Compliance and International law: Reflections on the United Nations' Experience Against Iraq, 32 Va. J. Int'l L. 1 (1991). (6) See R.W. Apple, Jr., U.S. Says Iraq Pumps Kuwaiti Oil into Gulf; Vast Damage is Feared from Growing Slick. N.Y. Times, Jan. 26, 1991, at A1; Robert D. McFadden, Oil Threatens Fishing and Water Supply, N.Y. Times, Jan. 26, 1991, at A1. Oil was reported to be spewing from the sea Island Terminal off the coast of Kuwait, approximately one-half of which was coming from storage facilities, with the remainder being pumped through undersea pipes from 5 tankers berthed at the occupied Kuwaiti port of Mina al Ahmadi. Rick Atkinson & Dan Balz, Iraq Dumping Flood of Oil Into Gulf, U.S. Says, Wash. Post, Jan. 26, 1991, at A1. (7) R.W. Apple Jr., Oil Spill, Growing Rapidly. Heads for Vital Saudi Sites; Air War Goals Said to Shift, N.Y. Times, Jan. 27, 1991, at A1. (8) Keith Schneider, Saudis Seek U.S. Help with Oil Spill, N.Y. Times, Jan. 27, 1991, at A12. (9) R.W. Apple, Jr., War in the Gulf: The Overview; 80 of Iraq's Planes Now in Iran; Hosts Intent Called a Puzzle; U.S. Says Flow of Oil is Stemmed, N.Y. Times, Jan. 29, 1991, at A1. (10) The Exxon Valdez lost 11 million gallons of crude oil when it went aground on March 24, 1989. See Worst U.S. Spill, N.Y. Times, Jan. 26, 1991, at A4. (11) Apple, supra note 7. See also Philip Shenon, Huge Slick Still a Threat to Saudi Water Plants, N.Y. Times, Jan. 28, 1991, at A1. (12) Apple, supra note 7. The spill threatened to close Saudi Arabia's largest desalting plant at Jubail, which produces one-half the potable water for Saudi Arabia. See Schneider, supra note 8; R.W. Apple. Jr., Relentless Tide of Oil Fouls Shores of Empty Saudi City, N.Y. Times, Jan. 28, 1991, at A1. (13) Philip Shenon, Oil Company Ecologist Fears Slick Will Leave a "Dead Gulf," N.Y. Times, Feb. 9, 1991. at A7. Sea turtles, shrimp, dolphins, and marine birds were feared grievously affected. Id. See also Michael Isikoff, Saudis Brace for Onslaught of Oil Slick, Wash. Post., Jan. 27, 1991, at A22; Barbara Rosewicz, Upping the Ante: Gulf Oil Spill Shows Iraq's Resolve to Wage War on Its Own Terms, Wall St. J., Jan. 28, 1991, at A1 & A4. For an insider's perspective of the cleanup operation organized by Saudi Aramco and its Oil Spill Committee, see Tom Pledge, War Within a War: Fighting the Gulf Oil Spill, Aramco World, May-June 1991, at 35. For treatment of the impacts of ocean pollution, see generally K. A. Gourlay, Poisoners of the Seas (1988). (14) It should not be overlooked that Iraqi forces also torched 752 oil wells as they were fleeing Kuwait. Youssef M. Ibrahim, Kuwaitis Battling Huge Pools of Oil, N.Y. Times, Apr. 21, 1992, at A1. Nearly 100 more wells shooting geysers of oil failed to ignite. The environmental damage has been quantified in a variety of ways. The burning wells released up to 500,000 tons of air pollution a week with levels of airborne particles climbing up to 400 times U.S. EPA standards. The smoke from the fires reached a ceiling of about 12,000 feet above sea level and the pollutants formed a dark haze seen 300 miles away. See generally Michael Weiskopf, Oil Fire Pollution Assessed, Wash. Post, Apr. 4, 1991. at A25; Lee Hockstader, Toxic Gas Deepens Kuwaits Crisis, Wash. Post, Mar. 23, 1991. at A1. The economic devastation was as a loss of 6 million barrels a day, approximating a daily revenue loss of $100-$120 million. Extinguishing the fires was initially projected to take as long as five years, at an estimated cost of $430 million. That cost did not include the repair of 80 percent of the 1080 wells damaged by Iraq's occupation. See Hockstader, supra, at A16; William Booth, Kuwait Seeks More Help in Combatting "Well Fires," Wash. Post, Apr. 14, 1991, at A18. By November 1991, the last of these oil well fires had been extinguished. Ibrahim, supra. Restoration of Kuwait's oil industry to its pre-invasion condition could cost $10 billion, although a new environmental hazard in the form of huge oil lakes forming in the desert could increase the final bill considerably. Id. (15) Michael R. Gordon, Iraq Army Invades Capital of Kuwait in Fierce Fighting, N.Y. Times, Aug. 2, 1990, at A1; R.W. Apple, Jr., Invading Iraqis Seize Kuwait and Its Oil; U.S. Condemns Attack Urges United Action, N.Y. Times, Aug. 3, 1991, at A1. (16) Clyde H. Farnsworth, Bush, In Freezing Assets, Bans $30 Billion to Hussein, N.Y. Times, Aug. 3, 1990, at A9; Iraqi Invasion, Step by Step, N.Y. Times, Aug. 3, 1990. at A9. Hussein was plagued by a worsening economic crisis following the cease fire of the Iran-Iraq war in 1988. Peace brought a reduction of Persian Gulf state subsidies, international credits, and elevated oil production rates keeping prices low for Iraqi exports. By May 1990, Iraq demanded of Kuwait and other states cancellation of its Iran-Iraq war debts, additional economic aid, increased OPEC oil prices, control of two Kuwaiti islands, and reparations for oil taken by Kuwait from the disputed Rumailah oil field. For analysis of these issues, see William B. Quandt, The Middle East in 1900, Foreign Aff., America and the World 1990/1991, at 49, 51-53. (17) Werner Wiskari, Iraq Said to Gain Its Border Aims In Iran Conflict, N.Y. Times, Sept. 20, 1980, at A1. (18) Claudia Wright, Implications of the Iraq War, 59 Foreign Aff. 274, 291 (Winter 1980/1981). (19) As an irony of history, Iraq received political and financial support during its war with Iran from Kuwait and Saudi Arabia, and even United States policy tilted towards a pro-Saddam Hussein attitude in re-flagging 11 Kuwaiti tankers. For a multidimensional assessment of the Iran-Iraq War see generally The Persian Gulf War: Lessons For Strategy, Law and Diplomacy (Christopher C. Joyner ed., 1990). (20) Bernard Gwertzman, U.S. Says Iraqis Use Poison Gas; Shultz and Baghdad Official Meet, N.Y. TIMES, Mar. 26, 1985, at I1; U.S. Makes Direct Charge, N.Y. Times, Mar. 27, 1985, at A8. (21) Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous, or Other Gases, and of Bacteriological Methods of Warfare, June 17, 1925, 26 U.S.T. 571, 94 L.N.T.S. 65. (22) Elaine Sciolino, Kurdish Chief Gains Support in U.S. Visit, N.Y. Times, June 22, 1988, at 13; More Chemical Attacks Reported, N.Y. Times, Aug. 28, 1988, at 115; June Johnson, U.S. Asserts Iraq Used Poison Gas Against the Kurds, N.Y. Times, Sept. 9, 1988, at A1. (23) See generally Phebe Mart, The Iran-Iraq War: The View from Iraq, in The Persian Gulf War, supra note 19, at 59. Cf. Eric Hooglund, Strategic and Political Objectives in the Gulf War: Iran's View, in id. at 39. (24) Thomas W. Lippman & William Booth, Oil Spreading Off Kuwait Poses Ecological Disaster, Wash. Post, Jan. 26, 1991, at A13. (25) Barton Gellman, Theories Vary on Motives for Spill, Wash. Post, Jan. 26, 1991. at A13. (26) Dan Balz, Gulf Oil Slick Spreads Rapidly, Wash. Post, Jan. 27, 1991. at A1. (27) Aldo Leopold, A Sand County Almanac and Sketches Here and There 221 (1949). (28) Declaration of the United Nations Conference on the Human Environment, June 16, 1972, U.N. Doc. A/CONF .48/14 and Corr.1 (1972), reprinted in 11 I.L.M. 1416 (1972) hereinafter Stockholm Declaration!. (29) Id. principle 2. (30) See Louis B. Sohn, The Stockholm Declaration on the Human Environment, 14 Harv. Int'l L.J. 423 (1973) (discussing the applicability of the Stockholm Declaration). (31) Stockholm Declaration, supra note 28, principle 6. (32) Id. principle 7. Importantly, this phrase is repeated nearly veribatim in subsequent instruments intended to prevent marine pollution. See infra notes 45-61 and accompanying text. (33) Id. principle 21. (34) Id. (35) Importantly, this duty and the international legal principle of transfrontier protection had been recognized and articulated in a number of earlier decisions by international tribunals. See, e.g., Trail Smelter Case (U.S. v. Canada), Trail Smelter Arbitial Tribunal, 3 R.I.A.A. 1905 (1941); Corfu Channel Case (U.K. v. Alb.), 1949 I.C.J. 4 (April 9); Lake Lanoux Case (Fr. v. Spain), 62 Revue Genarale De Droit International Public 79-119 (1958), reprinted in 53 Am. J. Int'l L. 156 (1959). (36) See generally L.F.E. Goldie, Liability for Damage and the Progressive Development of International Law, 14 Int'l & Comp. L.Q. 1189 (1965); Sanford E. Gaines, International Principles for Transnational Environmental Liability: Can Developments in Municipal Law Help Break the Impasse?, 30 Harv. Int'l L.J. 311 (1989). (37) Stockholm Declaration, supra note 28, principle 22. (38) Id. principle 23. (39) In the case of Iraq and the Gulf spill, contemporary normative views of the Islamic world were clearly expressed as most Arab governments overtly condemned Iraq's aggression against Kuwait, a fact evidenced by the prominent cooperation of Egypt, Syria, Saudi Arabia, Kuwait, the United Arab Emirates, Oman, and Qatar in the allied coalition against Iraq. Likewise, it would be profoundly difficult for the Iraqi leadership to charge cultural bias against its national character by a hostile (i.e., pro-Western) value system. A more plausible explanation for Saddam Hussein's actions suggests that Iraq may have been deprived of the economic value of Kuwait's oil by the United Nations' embargo, and thus had few inhibitions about testing the utility of that oil as a weapon. (40) One of the earliest modern agreements to deal with environmental protection was the 1959 Antarctic Treaty. This agreement prohibits nuclear explosions, the disposal of radioactive wastes, and military fortification and maneuvers on the continent. The treaty also designated the area south of 60deg South Latitude as a region for scientific research, to be used exclusively for peaceful purposes. Antarctic Treaty, Dec. 1, 1959, 12 U.S.T. 794, 402 U.N.T.S. 71. Second, the 1963 Test Ban Treaty strongly asserted an ethic of environmental protection, in banning all nuclear weapons tests in outer space, the earth's atmosphere and beneath the oceans. Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space, and Underwater, Aug. 5, 1963, 14 U.S.T. 1313, 480 U.N.T.S. 43. A third prominent international agreement that contributed to developing the concept of international environmental protection was the 1967 Outer Space Treaty. As provided for in its Article IX, States Parties to the Treaty shall pursue studies of outer space, including the moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter and, where necessary, shall adopt appropriate measures for this purpose. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, art. IX, 18 U.S.T. 2410, 2416-2417, 610 U.N.T.s. 205, 209-210. Finally, in 1969, the International Convention on Civil Liability for Oil Pollution Damage established a system of international liability for environmental darnage caused by oil spills. This international agreement aims to impose penalties on bulk oil carriers which pollute the seas by oil. International Convention on Civil Liability for Oil Pollution Damage, Nov. 29, 1969, 973 U.N.T.S. 3, 9 I.L.M. 45. (41) See, e.g., Convention on Long Range Transboundary Air Pollution, 1979, 34 U.S.T. 3043, 18 I.L.M. 1442; Vienna Convention for the Protection of the Ozone Layer, Mar. 22, 1985, T.I.A.S. 11,097, 26 I.L.M. 1529; Montreal Protocol on Substances that Deplete the Ozone Layer, Sept. 16, 1987, 26 I.L.M. 1541; and conventions cited infra notes 45-75. (42) See infra notes 45-82. (43) See Lawrence Juda, IMCO and the Regulation of Ocean Pollution from Ships, 26 Int'l & Comp. L.Q. 558 (1977). 44 See generally Bernhard J. Abrahamsson, The Marine Environment and Ocean Shipping: Some Implications for a New Law of the Sea, 31 Int'l Org. 291 (1977). (45) International Convention for the Prevention of Pollution of the Sea by Oil, May 12, 1954, 12 U.S.T. 2989, 327 U.N.T.S. 3. (46) Id. art. 3. (47) Id. art. 6. (48) The Convention goes so far as to establish "prohibited zones" through which tankers should not pass. Id. Annex A. (49) Convention on the High Seas, Apr. 29, 1958, 13 U.S.T. 2312, 450 U.N.T.S. 82. (50) Id. arts. 24-25. (51) Convention on the Continental Shelf, Apr. 29, 1958, 15 U.S.T. 471, 499 U.N.T.S. 312. (52) Id. art. 5. (53) International Convention for the Prevention of Pollution from Ships, Nov. 2, 1973, 12 I.L.M. 1319 hereafter Marpol 1973!. (54) Protocol of 1978 Relating to Marpol 1973, Feb. 17, 1978, I.L.M. 546 hereinafter Marpol 1978!. (55) Marpol 1973, supra note 53, art. I. "Harmful substances" are defined to include "any substance which, if introduced into the sea, is liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea, and includes any substance subject to control by the present Convention." Id. art. I, para. 2. (56) Marpol 1973, supra note 53, Annex I: Regulations for the Prevention of Pollution by Oil, at 1335; Annex II: Regulations for the Control of Pollution by Noxious Liquid Substances in Bulk, at 1386; Annex III: Regulations for the Prevention of Pollution by Harmful Substances Carried by Sea in Packaged Forms, or in Freight Containers, Portable Tanks or Road and Rail Tank Wagons, at 1421; Annex IV: Regulations for the Prevention of Pollution by Sewage from Ships, at 1424; Annex V: Regulations for the Prevention of Pollution by Garbage from Ships, at 1434. (57) Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, Dec. 29, 1972, 26 U.S.T. 2403, 1046 U.N.T.S. 120. (58) Id. art. 1. "Dumping" is defined as "any deliberate disposal at sea of wastes or other matter from vessels, aircrait, platforms or other man-made structures at sea." Id. art. 3, para. 1. (59) Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft, Feb. 15, 1972, 932 U.N.T.S. 5. (60) Id. art. 1. As defined in the Convention, "dumping" refers to "any deliberate disposal of substances and materials into the sea by or from ships or aircraft," other than incidental discharges from the normal operations of ships or for "purposes other than the mere disposal thereof, if not contrary to the aim of this Convention." Id. art. 19, para. 1. "Ships" include fixed or floating platforms. Id. art. 19, para. 2. (61) Convention for the Prevention of Marine Pollution from Land-Based Sources, June 4, 1974, 13 I.L.M. 352. (62) Id. art. 1. (63) Id. art. 13. (64) Apr. 5, 1966, 18 U.S.T. 1857, 640 U.N.T.S. 133. (65) Dec. 2, 1972, 29 U.S.T. 3707, 1064 U.N.T.S. 3. (66) Oct. 20, 1972, 28 U.s.T. 3459, 1050 U.N.T.S. 16. (67) Nov. 1, 1974, 32 U.S.T. 47, 14 I.L.M. 963. (68) July 7, 1978, reprinted in 6A Benedict on Admiralty, Doc. No. 9-38 (7th ed. 1987). (69) Kuwait Regional Convention for Co-operation on the Protection of the Marine From Pollution, Apr. 24, 1978, 1140 U.N.T.S. 133, 17 I.L.M. 511 hereinafter Kuwait Convention! (entered into force June 1, 1979), reprinted in Peter H. Sand, Marine Environment Law in the United Nations Environmental Law Programme 58 (1988). The following states are parties to the Kuwait Convention: Bahrain, Iran, Iraq, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates. Id. at 256. (70) Kuwait Convention, supra note 69, art. III, para. A. (71) Id. art. IV. (72) Id. art. V. (73) Id. Protocol concerning Regional Cooperation in Combatting Pollution by Oil and Other Harmful Substances in Cases of Emergency. (74) Id. Preamble. (75) United Nations Convention on the Law and the Sea, Dec. 10, 1982, 21 I.L.M. 1261 hereinafter 1982 LOS Convention!. (76) Id. arts. 192-237. (77) Id. art. 192. (78) Id. art. 235, para. 1. (79) Id. art. 194, para. 1. (80) Id. art. 207, para. 1. (81) Id. art. 210, paras. 1 & 2. (82) Id. art. 210, paras. 4 & 6. For a thoughtful assessment of the 1982 LOS Convention's contribution to the law of pollution prevention see Moira L. McConnell & Edgal Gold, The Modern Law of the Sea: Framework for the Protection and Preservation of the Marine Environment?. 23 Case W. Res. J. Int'l L. 83 (1991). (83) See generally the assessment made by the World Commission on Environment and Development, Our Common Future (1987). (84) See generally G. Handl, Liability as an Obligation Established by a Primary Rule of International Law: Some Basic Reflections on the International Law Commissions Work, 16 Neth. Y.B. Int'l L. 49 (1985); Pierre-Marie Dupoy, The International Law of State Responsibility: Revolution or Evolution?, 11 Mich. J. Int'l L. 105 (1989). (85) See. e.g., Trial Smelter Case, 3 R.I.A.A. at 1911. (86) See generally Karl Hakapaa, MARINE Pollution in International Law (1981). (87) See generally Jan Schneider, World Public Order of The Environment: Towards an International Ecological Law and Organization (1979); Schachter, supra note 1. (88) See Restatement (third) of the Law: The Foreign Relations of the United States sec 601 (1987). (89) Sources for international environmental law conform to sources of general international law, as expressed in Article 38 of the Statute of the International Court of Justice. These include resptively, " treaties and! international conventions," "international custom," "the general principles of law recognized by civilized nations," and "judicial decisions and the teachings of the most qualified publicists." U.N. Charter, Stat. I.C.J., art. 38. (90) See generally H.W.A. Thirlway, International Customary Law and Codification: An Examination of the Continuing R Custom in the Present Period of Codification of International Law (1972). (91) This obligation has become highlighted in recent years by the emergence of global warming and ozone depletion as serious international concerns. See Ved P. Nanda. Trends in International Environmental Law, 20 Cal. W. Int'l L.J. 187 (1989-1990). (92) See generally The Laws of Armed Conflicts: A Collection of Conventions, Resolutions and Other Documents (Pietrich Schindler & Jiri Tomi eds., 3d ed. 1988); The Law of War: A Documentary History (Leon Friedman ed., 1972). (93) Thucydides, The History of the Peloponnesian War, bk. VII, para. 68 (Richard Livingstone ed., Richard Crawley & Richard Feetham trans., 1954). (94) Aristotle, The Politics. bk. I, para. 8, at 11 & bk. VII, para. 14, at 178-179 (Stephen Everson ed., 1988). (95) Plato, The Republic, bk. II, at 51 (Allan Bloom trans., 1968) (Platonic pagination reference 373d-374d). (96) Saint Augustine, The City of God, bk. III, at 103-106, bk. XXI, at 786 (Marcus Dods trans., 1950). (97) See The "Summa Theologia" of St. Thomas Aquinas, Part II (Second Part), Question XL (On War), at 500 (Fathers of the English Dominican Province trans.. Burns Oates & Washbourne Ltd., 1916). (98) During the decline of the empires, the institution of the emperor as sovereign lost credibility and power. Joachin von Elbe describes what remained of this antiquated system at the onset of the Middle Ages: The ius commune of the Empire continued to exercise a "supra-national power" for the maintenance of justice and peace in the world. The limitation and regulation of wars between the members of the Empire thus becomes a matter of positive law; it is treated by secular lawyers of the Middle Ages in the familiar terms of the Corpus Iuris. Joachim von Elbe, The Evolution of the Concept of the Just War in International Law, 33 Am. J. Int'l L. 665, 670-71 (1939). (99) Von Elbe posited that in 1581, Ayala (a major influence on Grotius) was the first to make the actual distinction between the two concepts. This provocative departure from traditional thought notes that "the justice of the cause, though still considered as a necessary prerequisite for going to war in accordance with the prevailing doctrine, has no legal effect whatever upon the conduct of the war; it relates to politics and equity rather than to law." Id., at 676 (emphasis added). (100) Monsier De Vattel, The Law of Nations; or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and SOVEREIGNs 381-382 (Joseph Chitty trans., 1852). (101) See J.L. Brierly, The Law of Nations: An Introduction to the International Law of Peace 37-40 (Sir Humphrey Waldock ed., 6th ed. 1963). (102) As Werner Levi has observed: The rise of positivism and the simultaneous decline of the naturalist theory of law--or, in other words. the ostensible elimination of value judgments about legal norms so as to facilitate the growth of law in a multicultural world--legitimized the conduct of wars for the enforcement of political demands even without a legal basis or "just cause." Werner Levi, Contemporary International Law 12 (2d ed. 1991). (103) Brierly, supra note 101, at 37-38. (104) Gerhard Von Glahn, Law Among Nations: An Introduction to Public International Law 33 (6th ed. 1992). (105) Id. at 670 & 699. (106) See generally J. David Singer & Melvin Small, The Wages of War, 1816-1965, A Statistical Handbook (1972). (107) Von Glahn, supra note 104, at 33 & 670. (108) Kalshoven, supra note 3, at 7-18. (109) See International Convention with Respect to the Laws and Customs of War by Land, July 29, 1899, 32 Stat. 1803, hereinafter Hague II!; Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 1 Bevis 631 hereinafter Hague IV!. (110) See Von Glahn, supra note 104, at 834-869 (discussing the concept of neutrality); Patrick M. Norton, Between the Ideology and the Reality: The Shadow of the Law of Neutrality, 17 Harv. Int'l L.J. 249 (1976). (111) See Von Glahn, supra note 104, at 33 & 670-674. (112) Id. at 670. (113) See generally William V. O'Brien, The Conduct of Just and Limited War (1981); Michael Walzer, Just and Unjust Wars (1977). (114) Treaty Providing for the Renunciation of War as an Instrument of National Policy. Aug. 27, 1928, 46 Stat. 2343, 94 L.N.T.S. 57. As provided for in this agreement, the contracting parties "condemn ed! recourse to war for the solution of international controversies, and renounced it as an instrument of national policy in their relations with one another." Id. art. 1. Moreover, parties agreed that "the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means." Id. art. 2. (115) See Egon Schwelb, Crimes Against Humanity, 23 Brit. Y.B. Int'l L. 178 (1946); Von Glahn, supra note 104, at 885-886. (116) See generally Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.s. 31 hereinafter Geneva Convention I!; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 hereinafter Geneva Convention II!; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 hereinafter Geneva Convention III!; Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.s. 287 hereinafter Geneva Convention IV!. (117) Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 16 I.L.M. 1391 hereinafter Protocol I!; Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 16 I.L.M. 1442 hereinafter Protocol II!. (118) See generally Howard S. Levie, Protection of War Victims: Protocol I to the 1949 Geneva Conventions (1981). (119) This point is demonstrated by restrictions in Protocol I of 1977 on methods and means of warfare that are intended or expected to have long-term or severe damage on the environment. See infra notes 143-145 and accompanying text. Interestingly enough, these violations are not considered to be grave breaches under Protocol I. Kalshoven, supra note 3, at 133. (120) See generally Barrie Paskins & Michael Dockrill, The Ethics of War (1979); Howard S. Levie, The Code of International Armed Conflict (1986); Geoffrey Best, The Restraint of War in Historical and Philosophical Perspective, in Humanitarian Law of Armed Conflict: Challenges Ahead 3 (Astrid J.M. Delissen & Gerard J. Tanga eds., 1991). (121) See generally Geoffrey Best, Humanity in Warfare: The Modern History of International Law of Armed Conflicts (1980); The Humanitarian Law of Armed Conflict (Antonio Cassese ed., 1979). (122) While custom and intent had stressed protection of noncombatants, such trends were not codified until the 20th century. At the close of World War II, "the Principles of International Law Recognized in the Charter of the Nuremberg Tribunal ma d!e it a war crime to plunder public or private property, wantonly destroy cities, towns or villages, or perform devastation not justified by military necessity." The Charter and Judgment of the Nurmberg Tribunal: History and Analysis, U.N. Doc. A/CN.4/5, citing Agreement for the Prosecution and Puaishment of the Major War Criminals of the European Axis, Charter of the International Military Tribunal, art. 6(b), Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279. (123) See Annotated Supplement to the Commander's Handbook on the Law of Naval Operations, NWP 9 (REV.A)/FNFM 1-10 (1989), at 5-4 to 5.7 hereinafter Law of Naval Operations!. (124) See generally Weiden, Necessity in International Law, in 24 Transactions of the Grotius Society 105 (1939); William Gerard Downey, Jr., The Law of War and Military Necessity, 47 Am. J. Int'l L. 251 (1953). (125) See generally N.C.H. Dunbar, The Significance of Military Necessity in the Law of War, 67 Jurid. Rev. 201 (1955). (126) This principle is known as "economy of force." See infro notes 131-133 and accompanying text. (127) The rule of proportionality is codified in Protocol I, supra note 117, arts. 51(5)(b) & 57(2)(a)(ii)-(iii). See generally William J. Fenrick, The Rule of Proportionaklity and Protocol I in Conventional Warfare, 98 Mil. L. Rev. 91 (1982). See also Law of Naval Operations, supra note 123, at 5-6 to 5.7 n.6. (128) Law of Naval Operations, supra note 123, at 5-7. (129) As well put in an authoritative military supplement on international law: As long as war is not abolished, the law of armed conflict remains essential. During such conflicts the law of armed conflict provides common ground of rationality between enemies. This body of law corresponds to their mutual interests during conflict and comtitutes a bridge for a new understanding after the end of the conflict. The law of armed conflict is intended to preclude purposeless. unnecessary destruction of life and property and to ensure that violence is used only to defeat the enemy's military forces. If followed by all participants, the law of armed conflict will inhibit warfare from needlessly affecting persons or things of little military value. By preventing needless cruelty, the bitterness and hatred arising from armed conflict is lessened, and thus it is easier to restore an enduring peace. Id. at n.7. (130) See Jean Picet, Humanitarian Law and the Protection of War Victims 28-29 (1975); Respective to the legal relationship between the doctrine of military necessity and the principle of humanitarian concern, the Nuremberg Trial case of United States v. List made these relevant observations: Military necessity! permits the destruction of life of armed enemies and other persons whose destruction is incidentally unavoidable by the armed conflicts of war; it allows the capturing of armed enemies and others of peculiar danger, but it does not permit the killing of innocent inhabitants for purposes of revenge or the satisfaction of a lust to kill. The destruction of property to be lawful must be imperatively demanded by the necessities of war. Pestruction as an end in itself is a violation of international law. There must be some reasonable connection between the destruction of property and the overcoming of enemy forces. United States v. List, 11 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, 1230, 1253 (1948). (131) "Economy of force" is one of the cardinal "principles of war" adopted by the U.S. armed forces as service doctrine. See Law of Naval Operations, supra note 123, table ST5-l, at 5-9; Armed Forces Staff College, Joint Staff Officer's Guide, Pub. 1, para. 102, at 1-4 and fig. 1-1, at 1-5 (1986). (132) "Economy of force" means that "no more--or less--effort should be devoted to a task than is necessary to achieve the objective." Law of Naval Operations. supra note 123, at 5-8 n.8. (133) U.S. Department of the Navy, Law of Naval Warfare sec 220(a) (1955). The Fourth Geneva Convention of 1949 concerning the protection of civilian persons during war was constructed upon this principled foundation. Article 53 in the Convention provides that: Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, excepted where such destruction is rendered absolutely necessary by military operations. Geneva Convention IV, supra note 116, art. 53. (134) As R. B. Brand has observed, The measure of permissible devastation is found in the strict necessities of war. Devastation as an end in itself or as a separate measure of war is not sanctioned by the law of war. There must be some reasonably close connection between the destruction of property and the overcoming of the enemy's army. R.B. Brandt, Utilitarianism and the Rules of War, in War and Moral Responsibility 25, 38-39 (Marshall Cohen et al. eds., 1975). (135) See generally Law of Naval Operations, supra note 123; William H. Parks, Command Responsibility for War Crimes, 62 Mil. L. Rev. 1 (1973). (136) In this sense, "conservation" embodies the notion that the law preserves, guards, and protects society from excessive loss, injury. or decay resulting from armed conflict or environmental degradation. (137) To support this assertion, one need only realize that more than 160 states in the international community have ratified the four 1949 Geneva Conventions on the Law of War. Theodor Meron, The Geneva Conventions as Customary Law, 81 Am. J. Int'l L. 348, 348 n.2. (1987). In contrast, laws for the protection of the environment still await the inception, let alone widespraad ratification, of such a quasi-universal convention. (138) See supra notes 92-98. (139) See supra notes 99-119. (140) The law of armed conflict has been evolving since before the time of Grotius, in the sixteenth century. However, it was only in 1972 that the Stockholm Conference on the Human Environment set the modern beginning of environmental concerns in international law. See Christopher C. Joyner & Nancy D. Joyner, Global Eco-Management and International Organizations: The Stockholm Conference and Problems of Cooperation, 14 Nat. Resources J. 533 (1974). (141) See supra note 45 and accompanying text. (142) See supra notes 75-82 and accompanying text. (143) See Kalshoven, supra note 3, at 81 (noting that the proponents of this "new basic rule" were probably motivated in this environmental prohibition by the "large-scale deforestations carried out by the Americans in the course of the war in Vietnam."). (144) Protocol I, supra note 117, art. 35. (145) Paragraphs 1 and 2 of Article 35 of Protocol I reaffirm the two classical principles of the "Law of the Hague." Id. paras. 1-2. These principles are then supplemented by the modernized paragraph 3. Id. para. 3; Kalshoven, supra note 3, at 80-81. Importantly, the general principles of the "Law of the Hague" have in large part passed into customary international law. Meron, supra note 137. (146) Protocol I, supra note 117, art. 35, para. 3. (147) While this may be so, the undefined extent and vague scope of such "widespread, long-term and severe damage" leaves substantial room for vagaries in interpretation and application. (148) For a discussion of the relevant geography of the Persian Gulf, see Christopher C. Joyner, Introduction: The Geography and Geopolitics of the Persian Gulf, in The Persian Gulf War, supra note 19, at 1, 2-4. (149) See Schneider, supra note 8; Shenon, supra note 13. In the wake of Iraq's oil spill, the U.S. Senate passed a resolution urging the administration to pursue an international tribunal for war crimes committed by Iraq during its occupation war. David Hoffman. U.S.: No Plans to Try Saddam in Absentia, Wash. Post. Apr. 24, 1991, at A24. The European Community asked the United Nations to explore charges against Iraq during the Gulf War as well. Id. In addition, the U.N. Security Council voted to hold Iraq responsible for violations of international law. Id. (150) Gellman, supra note 25. (151) See SIPRI, Warfare in a Fragile World: Military Impact on the Human Environment 14-19 (Rajesh Kusnar ed., 1980). Examples of ravaging the environment as part of a belligerent's military strategy are legion. In 1980, SIPRI oatalogued 26 major "ecologicaily disruptive wars" in history. which included among them the following: The Peloponnesian War (431-404 B.C.), Third Punic War (149-146 B.C.). Thirty Years' War (1618-1648), Napoleonic wars (1796-1815), U.S. Civil War (1861-1865), World War I (1914-1918). World War II (1939-1945), Korean War (1950-1953), Second Indochina War (1961-1975), and the Kampuchean Insurrections (1975-1977). Id. (152) See Apple, supra note 7; Shenon, supra note 13. (153) As provided for in the Hague Regulations, "military necessity" does not convey a license to destroy. It permits destruction of life and property by an occupant when it is "necessary to protect the safety of his forces and to facilitate the success of his operation." Law of Naval Operations, supra note 123, at 5-5 n.5. However, the principle of military necessity does not permit the killing of innocent inhabitants for purposes of revenge or the satisfaction of a lust to kill. The destruction of property to be lawful must be imperatively dmanded by the necessities of war. Destruction as an end in itself is a violation of international law. There must be some reasonable connection between the destruction of property and the overcoming of the enemy forces. It is lawful to destroy railways, lines of communication, or any other property that might be utilized by the enemy. Private homes and churches even may be destroyed if necessary for military operations. It does not admit the wanton devastation of a district or the willful infliction of suffering upon its inhabitants for the sake of suffering alone. Id. (154) Regarding the protection of objects that are "indispensable to the survival of the civilian population" of a belligerent state, Article 54 of Protocol I provides that: 1. Starvation of civilians as a method of warfare is prohibited. 2. It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of food-stuffs, crops, live stock, drinking water installations and supplies and irrigation works, for the specific purpoe of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive. 5. In recognition of the vital requirements of any Party to the conflict in the defence of its national territory against invasion, derogation from the prohibitions contained in poragraph 2 may be made by a Party to the conflict within such territory under its own control where required by imperative military necessity. Protocol I, supra note 117, art. 54 (emphasis added). (155) See Apple, supra note 6, at A6. (156) Protocol I, supra note 117, art. 54. (157) SIPRI, The Law of War and Dubious Weapons 1 (1976). (158) The tendency by the Iraqi government during late 1991 to resort to unlawful activities is clearly reflected in the 16 various resolutions adopted unanimously or near-uniimously by the U.N. Security Council condemning Iraq for its various actions. Not only did Iraq aggressively invade Kuwait, it also violatod norms of international law against hostage-taking by its seizure of foreigners as "human shields," committed acts of violence against diplomatic premises and personnel in Kuwait, attempted to alter the demographic composition of Kuwait, and committed numerous and substantial violations of human rights against local Kuwaitis. See Joyner, supra note 5, at 8-12. For fuller discussion of Iraqi violations see Christopher C. Joyner, The Persian Gulf War and International Law: Reasons or Excuses?, World Outlook: J. World Aff. 130 (1992). (159) Henry Hitchcock, Marching with Sherman: Letters and Diaries of Henry Hitchcock 35 (M.A. Dewolfe Howe ed., 1927). (160) Compare John F. Murphy, Defining International Termrism: A Way Out of the Quagmire, 19 Israel Y.B. Hum. Rts. 13 (1989) with Krzysztof Skubiszewski, Definition of Terrorism, 19 Israel Y.B. Hum. Rts. 39 (1989). (161) See Geoffrey Levitt, Is "Terrorism" Worth Defining?, 13 Ohio N.U. L. Rev. 97 (1986). (162) SIPRI, supra note 157, at 24. (163) See Torsten Stein, How Much Humanity Do Terrorists Deserve?, in Humanitarian Law of Armed Conflict supra note 120, at 567, 573-574. (164) Protocol I, supra note 117, art. 51, para. 2. (165) SIPRI, supra note 157, at 24. (166) Id. (167) Id. (168) While the actual reasons or motivations for release of the oil slick have yet to be, and may never be revealed, actions by the Iraqi government and its army during its occupation of Kuwait strongly suggest that sheer meanness and perfidity might be the real considerations for the cause. See Andrew Rosenthal, Bush Calls Gulf Oil Spill a 'Sick' Act by Hussein. N.Y. Times, Jan. 26, 1991, at A5. For additional testimony on the brutality of Iraq's occupation of Kuwait, see Amnesty International, Iraq/Occupied Kuwait: Human Rights Violations Since August 2, 1990, MDE 14/16/90 (Dec. 1990). (169) See Christopher C. Joyner, Legal Implications of the Concept of the Common Heritage of Mankind, 35 Int'l & Comp. L. Q. 190, 191 (1986). (170) 1952 Los Convention, supra note 75, art 89. As provided in part by Article 87, "The high seas are open to all States, whether coastal or land-locked." Id. art. 87. Article 88 provides in full that " t!he high seas shall be reserved for peaceful purposes." Id. art. 85. (171) See Bradley Larschan & Bonnie C. Brennan, The Common Heritage of Mankind: Principle in International Law, 21 Colum. J. Transnat'l L. 305(1983). See also Edith Brown Weiss, in Fairness To Future Generations: International Law, Common Patrimony, and Intergenerational Equity 232-247(1959). (172) 2 John Warren Kindt, Marine Pollution and The Law Of The Sea 1105(1986). (173) Both Kuwait and Iraq claim a twelve mile territorial sea, as also does Saudi Arabia. See J. Fenwick & D.A. Ross, International Profiles On Marine Science Research Jurisdiction and Boundaries: Natural Maritime Claims. MSR Jurisdiction, & U.S. Research CLEARANCE HISTORIES FOR THE WORLD'S COASTAL COUNTRIES (1992). (174) As Oscar Schachter has rightly posited, "there is no doubt that in principle, a state that violates a rule of international law by an activity involving transborder injury is liable to make reparation and to compensate the injured state." Schachter, supra note 1, at 482. See also Gaines, supra note 36. (175) Trail Smelter Case (U.S. v. Can.), 3 R.I.A.A. 1905. The tribunal decision against Canada for its transfrontier air pollution concluded that "no State has the right to use or permit the use of its territory in such a manner as to cause injury...to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence." Id. at 1965. (176) Gerhard von Glahn cites the following among the reasons why states obey international law: "enlightened self-interest"; "necessity"; "credibility"; "habit"; "world opinion ; social approval and costs"; and "disadvantages of expediency." VON GLAHN, supra note 104, at 6-7. With respect to legal obligation, Brierly observed: The ultimate explanation of the binding force of all law is that man, whether he is a single individual or whether he is associated with other men in a state, is constrained, in so far as he is a reasonable human being, to believe that order and not chaos is the governing principle of the world in which he has to live. Brierly, supra note 101, at 56. (177) That is, such violations of these eco-conflict legal obligations could result in international punitive sanctions to serve as deterrence for other would-be miscreants in the international community. (178) The Sea Island Tanker Terminal was located ten miles offshore Kuwait. See Apple, supra note 6 and accompanying text. Additionally,Kuwait claims a twelve mile territorial sea. See FENWICK & ROSS, Supra note 173. (179) See generally SIPRI, Environmental Warfare, supra note 2; SIPRI, Warfare In A Fragile World, supra note 151. (180) Although a U.N. Security Council Resolution would hold Iraq responsible for violations of international law, no international tribunal has yet been established to try the war crimes nor has the United States demonstrated enthusiasm for forcibly apprehending Saddam Hussein in order to try him for the alleged crimes. See Hoffman, supra note 149. (181) See generally William V. O'Brien, The Nuremberg Precedent and the Gulf War, 31 VA. J. INT'L L. 391(1991); John Norton Moore, War Crimes and the Rule of Law in the Gulf Crisis, 31 VA. J. INT'L L. 403(1991). (182) See Jordan J. Paust, Suing Saddam: Private Remedies for War Crimes and Hostage-Taking, 31 VA. J. Int'l L. 351(1991); Louis Rene Beres, The United States Should Take the Lead in Preparing International Legal Machinery for Prosecution of Iraqi Crimes, 31 VA. J. INT'L L. 381(1991). (183) See generally Gerhard Von Glahn, The Occupation Of Enemy Territory: A Commentary On The Law and Practice Of Belligerent Occupation (1957). (184) Annex to the Convention, Regulations Respecting the Laws and Customs of War on Land, Convention (No. IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631; Ernst H. Feilchenfeld. The International Economic Law Of Belligerent Occupation 5(1942). (185) O'Brien, supra note 81, at 395. (186) Law Of Naval Operations, supra note 123, at 65. (187) Id. at 8-5. (188) Id. (189) See generally W. Paul Gormley, Human Rights and Environment: The Need For International Co-operation (1976). (190) The German policy of environmental destruction during the retreat from Norway, the Soviet Union and the Balkans fell under the jurisdiction of the trials. See August Von Knieriem, The Nuremberg Trials 398-400 (1959). (191) Id. at 399. (192) Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, May 18, 1977, 31 U.S.T. 333, 16 I.L.M. 90 hereafter ENMOD Convention!. (193) Id. art. 1. (194) Id. Perhaps most relevant for this study, Articles 1, 2 and 4 of the ENMOD Convention stipulate the obligatory mandate not to use environmental modification techniques in warfare: Art. 1: Each state party to this convention undertakes 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. Art. 2: As used in article 1, the term "environmental modification techniques" 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. 4: Each State Party to this Convention undertakes to take any measure it considers necessary in accordance with its constitutional process to prohibit and prevent any activity in violation of the provisions of the convention anywhere under its jurisdiction or control. Id. arts. 1,2 & 4.