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Protection of the Environment in Times of Armed Conflict: The Iraq-Kuwait War

Published online by Cambridge University Press:  21 May 2009

Liesbeth Lijnzaad  and
Gerard J. Tanja
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Extract

The magnitude and seriousness of the environmental consequences of the 1990–1991 Iraq-Kuwait War, have raised a variety of legal questions concerning the validity, effectiveness and interpretation of applicable principles and rules of international law.

Type
Articles
Information
Netherlands International Law Review , Volume 40 , Issue 2 , August 1993 , pp. 169 - 199
Copyright
Copyright © T.M.C. Asser Press 1993

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References

1. Arkin, W.M., Durrant, D. and Cherni, M., ‘On Impact: Modern Warfare and the Environment. A Case Study of the Gulf War’, Greenpeace (May 1991) at p. 5.Google Scholar

2. In the words of Robinson: ‘What made the Gulf War unique, and terrifying, is the fact that Iraq attacked nature itself’. See Robinson, N.A., ‘International Law and the Destruction of Nature in the Gulf War’, 21 Environmental L. & Pol. (1991) at p. 216.Google Scholar

3. As the Representative of the Netherlands stated on behalf of the Member States of the European Communities in the Sixth Committee: ‘Massive ecological damage as a consequence of armed conflict – be it of international or non-international character – can endanger the very basis of life on this planet for a long period of time’. Reproduced in Press Release, Presidency of the European Communities, S–91·046, New York, 24 October 1991.

4. Arkin, et al. , loc. cit. n. 1., at p. 62Google Scholar et seq., Report on Environmental Consequences of the Conflicts between Iraq and Kuwait, UNEP (22 February 1991) at p. 10.Google Scholar

5. International Herald Tribune (23 January 1991).Google Scholar

6. Although Iraq allegedly opened the valves of five tankers moored off an offshore loading facility, Iraq stated that the oil spill resulted from American aircraft bombing Iraqi tankers. A few days later British sources indicated that Iraq had also opened the valves at the Iraqi Mina al Baqr oil terminal, International Herald Tribune (26/27 January 1991; 1 February 1991).Google Scholar

7. See Ryan, S., ‘Vast Gulf Pollution Cloud Towards Europe’, Sunday Times (10 March 1991) at p. 20Google Scholar; Ryan, S., ‘Gulf Oil Fires Blacken Snow in Himalayas’, Sunday Times (31 March 1991) at p. 2. Damage was concentrated in an area of 800 square kilometers around Kuwait, but the acid rain also reached Bulgaria and Afghanistan, some 1200 kilometers away.Google Scholar

8. International Herald Tribune (14 March 1991).Google Scholar

9. International Herald Tribune (18 March 1991), Le Monde (29 March 1991).

10. International Herald Tribune (4 and 14 March 1991).

11. 1977 United Nations Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, 16 ILM (1977) pp. 88–94.Google Scholar

12. In a paper prepared for the Ottawa Conference on the Use of the Environment as a Tool of Conventional Warfare, Bothe observed: ‘A modern opinion … favours the non-suspension of certain types of obligations even between belligerents. I: would appear that some basic rules relating to the protection of the environment might be counted among the latter ones’: Bothe, M., Paper submitted at the Ottawa Conference, ‘The Protection of the Environment in Times of Armed Conflict’, Legal Rules, Uncertainty, Deficiencies and Possible Developments,Ottawa,9–12 July, 1991, at p. 7.Google Scholar This opinion, however, was contested by other participants, most notably by Green who denied the existence of any ‘general rule of customary or treaty law … that can be said to apply at all times in both peace and war’. According to Green, the law of war is ‘lex specialis, and to the extent that its provisions are contrary to those of the lex generalis they prevail’. L.C. Green, ‘The Environment and the Law of Conventional Warfare’, idem, at pp. 3–5.

13. See Bothe, M. et al. , Report prepared for die Commission of the European Communities, ‘Protection of the Environment in Times of Armed Conflict’, SJ/110/85, at pp. 4–5.Google Scholar

14. Art. 1 of Convention (V) Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land reads: ‘The territory of neutral Powers is inviolable’. Art. 1 of Convention (XIII) Concerning the Rights and Duties of Neutral Powers in War provides: ‘Belligerents are bound to respect the sovereign rights of neutral Powers to abstain, in neutral territory or neutral waters, from any act which would, if knowingly permitted by any Power, constitute a violation of neutrality’. For an extensive review concerning the applicability of traditional neutrality law, see Borne, et al. , op. cit. n. 13 at pp. 49–66.Google Scholar

15. As Falk adequately puts it: ‘[A]ll of the law of war was drafted and evolved in a preecological frame of mind’. Falk, R.A., ‘Environmental Warfare and Ecocide’, in Falk, R.A., ed., The Vietnam War and International Law, vol. 4, ‘The Concluding Phase’ (1976) at p. 295.Google Scholar

16. Bothe, et al. , loc. cit. n. 13, at p. 8Google Scholar; Verwey identifies three general principles: the obligation for States to avoid causing environmental damage beyond their borders, the obligation for States to respect the environment in general and the obligation to respect the human right to a healthy natural environment as a right indispensable to human survival. W.D. Verwey at the Consultations on the Law Concerning the Protection ‘of the Environment in Times of Armed Conflict, International Council of Environmental Law/IUCN, Munich, 13–15 December 1991.

17. International Herald Tribune (14 March 1991); Le Monde (29 March 1991).

18. Although, as Kalshoven has pointed out, the distinction between the law of The Hague and the law of Geneva has largely lost its relevance at present. Kalshoven, F., Constraints on the Waging of War (1987) at pp. 21–23Google Scholar. Falk, apparently, still deems it necessary to draw a distinction between the two sources. See, Falk, R.A., ‘The Environmental Law of War: An Introduction’, Paper presented at the London Conference on a ‘Fifth Geneva’ Convention on the Protection of the Environment in Time of Armed Conflict,3 June 1991, at p. 12.Google Scholar

19. In the same vein the Draft Resolution submitted by the United States during the preparations for the Twenty-Sixth International Conference of the Red Cross and Red Crescent(Budapest,1991).Google Scholar

20. Regulations respecting the Laws and Customs of War on Land, Annex to Convention IV. The history of the laws of war will not be dealt with extensively. For a review see Kalshoven, , op. cit. n. 18, at pp. 11–18Google Scholar. Also Best, G., ‘The Restraint of War in Historical and Philosophical Perspective’, in Delissen, A.J.M. and Tanja, G.J., eds., Humanitarian Law of Armed Conflict. Challenges Ahead (1991) at pp. 3–26Google Scholar; L.C. Green, ‘What One May Do in Combat – Then and Now’, idem at pp. 269–295.

21. Green provides a general overview of the historic roots of this provision. Green, , loc. cit. n. 20, at p. 286.Google Scholar

22. Geneva Convention for the Amelioration of the Conditions of the Wounded and Sick in Armed Forces in the Field, 12 August 1949. Reproduced in 75 UNTS (1950) pp. 31–83.

23. Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949. Reproduced in 75 UNTS (1950) pp. 85–133.Google Scholar

24. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949. Reproduced in 75 UNTS (1950) pp. 284–417.

25. That environmental degradation in the Gulf region is covered by Art. 53 is the opinion of the United States which in a draft resolution prepared for the Twenty-Sixth International Conference of the Red Cross and Red Crescent, explicitly referred to ‘the rule found in Article 53 …’ Reproduced in Doc. C.I/4/2/Res. 1 (USA), 14 November 1991.

26. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflict. Reproduced in 16 ILM (1977) pp. 1391–1441.

27. Cf., Bothe, M., Partsch, K.J. and Solf, W.A., New Rules for Victims of Armed Conflicts (1982) at p. 344Google Scholar; Kalshoven, F., ‘Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts: The Diplomatic Conference,Geneva,1974–1977 (Part II)’Google Scholar, 9 NYIL (1978) pp. 108–171, at p. 128.Google Scholar

28. Bothe, et al. , op. cit. n. 27, p. 344Google Scholar indicate that environmental warfare was not dealt with because of the simultaneous initiative that lead to the ENMOD Convention; Kalshoven, , loc. cit. n. 27, p. 129, suggests that the ICRC did not deal with the matter in the draft because of an initial lack of interest on the part of western States.Google Scholar

29. Blix, H., ‘Arms Control Treaties Aimed at Reducing the Military Impact on the Environment’, in Essays in International Law in Honour of Judge Manfred Lachs (1984) pp. 703–716, at p. 710Google Scholar; Bothe, et al. , op. cit. n. 27 at p. 345Google Scholar; ‘Protection of the Environment in Times of Armed Conflict’, report established by a study group constitued by Bothe, M., Cassese, A., Kalshoven, F., Kiss, A., Salmon, J., Simmonds, K.R.; European Communities Doc. SJ/110/85 (hereafter: Protection of the Environment) at p. 67Google Scholar; Herczegh, G., ‘La protection de l'environnement naturel et le droit humanitaire’, in Etudes et essais sur le droit international humanitaire en l'honneur de Jean Pictet (1986) pp. 725–733 at pp. 729–730Google Scholar; Kalshoven, , op. cit. n. 27, pp. 129–130Google Scholar; Kiss, A., ‘Les Protocols additionnels aux Conventions de Genève de 1977 et la protection de biens de environnement’, in Etudes et essais sur le droit international humanitaire en I'honneur de Jean Pictet (1986) pp. 181–192 at pp. 182–184.Google Scholar

30. Art. 35.3 reads: ‘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’.

31. Art. 55 reads: ‘Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes 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 and thereby to prejudice the health or survival of the population’.

32. Kiss, , loc. cit. n. 29, at p. 185.Google Scholar

33. It is noteworthy that the matter has not been dealt with in the Protocol additional to the Geneva Conventions of 12 August 1949, relating to the protection of victims of non-international armed conflicts (Protocol II).

34. It should be noted that the threat of using environmental warfare is not prohibited in Protocol I.

35. Bothe, et al. , op. cit. n. 27, at p. 345Google Scholar, Kalshoven, , op. cit. n. 27, at p. 130Google Scholar, Kiss, , loc. cit. n. 29, at p. 188.Google Scholar

36. Bothe, et al. op. cit. n. 27, at p. 346Google Scholar; Kalshoven, , op. cit. n. 27, at pp. 130–131.Google Scholar

37. Kalshoven, , op. cit. n. 27, fn. 56 on p. 130Google Scholar; Kiss, , loc. cit. n. 29, at p. 190Google Scholar; and see the travaux préparatoires of Art. 55 in Levie, H.S., Protection of War Victims, Vol. III (1980) pp. 259–277passim.Google Scholar

38. Cf., Art. 22 Hague Regulations; Herzcegh, , loc. cit. n. 29 at p. 729.Google Scholar

39. Cf., Art. 23(e) Hague Regulations.

40. Kiss, , loc. cit. n. 29, at p. 186.Google Scholar

41. Blix, , loc. cit. n. 29, at p. 713Google Scholar; Bothe, et al. , op. cit. n. 27, at pp. 346–347.Google Scholar

42. See Levie, , op. cit. n. 37, at p. 264Google Scholar; Kiss, , loc. cit. n. 29, at p. 186.Google Scholar

43. E.g., Art. 146 of the Fourth Geneva Convention.

44. Blix, , loc. cit. n. 29, at p. 713.Google Scholar

45. Protection of the Environment, op. cit. n. 29, at p. 70.Google Scholar

46. Cf., Protection of the Environment, op. cit. n. 29, at p. 70: ‘The preparatory instruments suggest that the damages must be catastrophic’.Google Scholar

47. Kuwait ratified Protocol I on 17 January 1985; Saudi-Arabia ratified on 21 August 1987; neither France, Iraq, the United Kingdom, nor the United States have so far ratified [status as of 30 April 1991, Dissemination 16 July 1991].

48. Unofficial translation provided by the Swedish, Ministry of Foreign Affairs, 3 August 1992, at p. 3.Google Scholar

49. See also Green, , loc. cit. n. 20, at pp. 269–295. According to Green these ‘classical’considerations pertaining to humanitarian law have a long history and can be found, inter alia, in pre-Hague documents like the 1868 Declaration of St. Petersburg and the Brussels Project of an International Declaration Concerning the Laws and Customs of War (1874).Google Scholar

50. Reproduced in Schindler, D. and Toman, J., eds., The Laws of Armed Conflict. A Collection of Conventions, Resolutions and Documents (1981).Google Scholar

51. Judgement of the International Tribunal for the Trial of Major War Criminals, HMSO (1946), CMD. 6964, at p. 64.Google Scholar

52. G. Abi-Saab, ‘The 1977 Additional Protocols and General International Law: Some Preliminary Reflexions’, in Delissen, and Tanja, , eds., op. cit. n. 20, at p. 117.Google Scholar

53. Some writers doubt the autonomous norm-creating character of Art. 23(e). See, for example, H. Meyrowitz, ‘Les Armes Nucleaires et le Droit de la Guerre’, in Delissen, and Tanja, , eds., op. cit. n. 20, at p. 305.Google Scholar

54. Green, , loc. cit. n. 19, at p. 286.Google Scholar

55. Bothe, M., Partch, K.J., Solf, W.A., eds., New Rules for Victims of Armed Conflict (1985) p. 195. The large-scale destruction of the environment was disproportionate to any (foreseeable) military advantages it might bring to the Iraqi military forces, thereby falling short of the requirements of military necessity. Moreover, the victims of these destructive operations were not only combatants, but foremost and primarily the civilian population (principle of distinction). On the other hand, one must not forget that, at present, oil facilities and related infrastructure, are still considered ‘normal’ military targets under international humanitarian law (although, of course, the proportionality and necessity principle are applicable).Google Scholar

56. Conference of Experts, supra n. 12, at p. 2.

57. Kirsch, Ph., Statement distributed in Committee VI on Agenda item 140, New York, 22 10 1991, at p. 1.Google Scholar

58. Abi-Saab, , loc. cit. n. 52, at p. 117.Google Scholar

59. According to Meyrowitz the clause as such has no ‘force regulatrice autonome’. Meyrowitz, , loc. cit. n. 53, at p. 305.Google Scholar

60. In Art. 1(2) of Additional Protocol I the clause reads: ‘In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience’. In Additional Protocol II die clause is reproduced in the Preamble and recalls that: ‘…in cases not covered by the law in force, the human person remains under me protection of the principles of humanity and the dictates of public conscience…’

61. As Borne has pointed out ‘the dictates of public conscience certainly include environmental concern’. Bothe, , loc. cit. n. 12, at p. 3Google Scholar. See also, section 2 of this essay and die remarks of Verwey in this respect. Verwey, loc. cit. n. 16.

62. Falk, , op. cit. n. 15, at pp. 292–297Google Scholar; and A.H. Westing, ‘Proscription of Ecocide: Arms Control and the Environment’, in Falk, , ed., op. cit. n. 15, at pp. 283–286.Google Scholar

63. On the background of the ENMOD Convention: Blix, , loc. cit. n. 29, at pp. 708–710Google Scholar; Fischer, G., ‘La Convention sur l'lnterdiction d'Utiliser des Techniques de Modification de l'Environement à des Fins Hostiles’, 23 AFDI (1977) pp. 820–836, at pp. 822–823CrossRefGoogle Scholar; Juda, L., ‘Negotiating a Treaty on Environmental Modification Warfare: The Convention on Environmental Warfare and its Impact upon Arms Control Negotiations’, 32 Int. Organization (1978) pp. 975–991;CrossRefGoogle ScholarMattes, M.A. and Bothe, M., ‘Draft Convention on Environmental Warfare Offered at Disarmament Conference’, 1 Environmental L. & Pol. (1975) pp. 136–137CrossRefGoogle Scholar; and Muntz, J., ‘Environmental Modification – United States Signs Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques’, 19 Harvard ILJ (1978) pp. 384–389, at pp. 384–385.Google Scholar

64. Fischer, , loc. cit. n. 63, p. 820Google Scholar; Juda, , loc. cit. n. 63, at p. 977.Google Scholar

65. GA Res. 31/72, 10 December 1976; UN Doc. A/31/39.

66. By 31 December 1990 [UN Doc. ST/LEG/SER.E/9] 54 States had ratified the ENMOD Convention.

Kuwait 2 January 1980), the United Kingdom (16 May 1978), and the United States (17 January 1980) ratified the Convention. Iraq signed on 15 August 1977, but failed to ratify. Neither Saudi-Arabia nor France ratified the Convention.

67. It reads: ‘[Ejarthquakes; tsunamis; an upset in the ecological balance of a region; changes in weather patterns (clouds, precipitation, cyclones of various types, and tornadic storms); changes in the climate patterns; changes in ocean currents; changes in the state of the ozone layer; and changes in the state of the ionosphere’.

68. Bothe, et al. , op. cit. n. 27, at p. 347.Google Scholar

69. Fischer, , loc. cit. n. 63, pp. 829–830Google Scholar, Juda, , loc. cit. n. 63, at pp. 980–983.Google Scholar

70. The procedure bears great resemblance to the procedure in Art. 6 of the 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction.

71. Blix, , loc. cit. n. 29, at p. 710.Google Scholar

72. Mattes, and Bothe, , loc. cit. n. 63, at pp. 136–137Google Scholar; and Juda, , loc. cit. n. 63, at p. 987.Google Scholar

73. In the period 1977–1979, 26 States ratified; between 1980–1985, 20 States ratified; and between 1985–1989, 9 states ratified.

The Staes parties can be identified as:

–19 members of NATO and omer western industrialized States.

–11 members of the Warsaw pact and allies.

–25 developing countries.

74. UN Docs. S/Res/674 of 29 October 1990, section A, paras. 8–9; S/Res/686.

75. S/Res/706 of 15 August 1991.

76. Conference on a Fifth Geneva Convention for the Environment, London, 3 June 1991. See, inter alia, Arkin, et al. , loc. cit.Google Scholar n. 1; Plant, G., Elements of a New Convention on the Protection of the Environment in Time of Armed Conflict, 2nd rev. edn. (1991).Google Scholar

77. Ottawa, 9–12 July, 1991. See the Chairman's Conclusions, supra, n. 12.

78. Munich, 13–15 December, 1991.

79. UN Doc. A/46/141 of 8 July 1991; the Note Verbal is dated 5 July 1991.

80. Idem.

81. UN Docs. A/C.6/46/SR. 18–20.

82. Intervention on behalf of the twelve Member States of the European Community on Agenda item 140, 24 October 1991. UN Doc. A/C.6/46/SR. 20.

83. Various delegations stressed that the Sixth Committee was not the appropriate forum to discuss the matter ‘[BJecause of the Red Cross special expertise in such matters, that body is the more appropriate venue for an initial substantive consideration of the issue’. United States Mission to the United Nations, Press Release, USUN 65-(91), 22 October 1991. Along the same lines, Canada, Statement delivered by Ambassador Ph. Kirsch, New York, 22 October 1991. Also, Statement by the ICRC, 22 October 1991. According to the ICRC the ‘… existing provisions constitute a solid basis for the protection of the environment in time of armed conflict’. The ICRC too, stressed the necessity to strengthen the efforts to improve implementation and dissemination. It was considered ‘unnecessary for the moment to revise all the provisions of international humanitarian law for the protection of the environment’, but the ICRC was prepared ‘to examine these problems’.

84. UN Doc A/C.6/46, SR. 18, par. 41.

85. UN Doc. A/46/693, para. 8.

86. Decision 46/417, 9 December 1991, meeting 67, Report: A/46/693.

87. UN Doc. A/47/328, at p. 2.

88. Ibid. p. 4.

89. Ibid. p. 5.

90. Ibid. p. 11.

91. Ibid. p. 15.

92. Canadian Embassy, Talking Points, Bonn, 14 August 1991.

93. 14 November 1991, Draft Resolution C.I/4/2/Res. 1.

94. Operative paras. 12 and 13.

95. Communication to the authors by the Finnish Ministry of Foreign Affairs, Helsinki, 19 May 1992.

96. ENMOD/Conf. II/8.

97. See for example, the Final statement by Ms. Peggy Mason, Canada, 18 September 1992.

98. Cf., nn. 47 (Protocol I) and 66 (ENMOD Convention) supra.

99. The Kuwaiti reservation reads: ‘This Convention binds the State of Kuwait only towards States Parties thereto. Its obligatory character shall ipso facto terminate with respect to any hostile state which does not abide by the prohibition contained therein.’ See UN Doc. ST/LEG/SER/E/9, 31 December 1990.

100. International Herald Tribune (23–24 February 1991).Google Scholar

101. Kiss, , loc. cit. n. 29, at p. 189.Google Scholar

102. Blix, , loc. cit. n. 29, at pp. 712–713Google Scholar, Kalshoven, , op. cit. n. 27, at p. 130.Google Scholar

103. Kiss, , loc. cit. n. 29, at p. 187.Google Scholar

104. See for instance ‘Protecting the Environment During Armed Conflict is Part of International Humanitarian Law’, Bulletin ICRC, No. 198 (July 1992).

105. UN Doc. A/47/328 of 31 July 1991, operative para. 66.