Historical Overview
 
In 146 B.C., the Romans salted the fields of Carthage to make the land useless for agricultural production. The use of atomic bombs on Hiroshima and Nagasaki at the end of World War II produced widespread environmental devastation, and exposed the environment to high levels of radiation. In the Vietnam War, it has been employed substances such as Agent Orange, which resulted in deforestation and destruction of vegetation. The growth of the environmental movement in the late 1960s and early 1970s expanded public consciousness of the environmental effects of certain warfare techniques. Despite this new awareness, however, war has continued to have disastrous effects on the natural environment.
 
In 1991, Iraq invaded neighboring Kuwait, beginning the Persian Gulf War and a series of environmental catastrophes. Iraq pumped up to 4 million barrels of oil into the Persian Gulf, endangering marine wildlife, migratory birds, and the fishing industry. In addition, Iraq set hundreds of Kuwaiti oil wells ablaze, spewing carcinogenic smoke that lowered temperatures and resulted in "black rain." The total impact of Iraq's military action on the natural environment is difficult to estimate. 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.
 
More recently, air strikes in the former Yugoslavia resulted in environmental damage. Operation Allied Force caused environmental degradation through the bombing of industrial fuel and chemical plants. 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.
 
More current is the Iraq War. 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. Furthermore, the use of weapons that contain uranium could result in widespread environmental contamination. 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." 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.
 
In March 2003, the U.N. Environment Program (UNEP) issued the Desk Study on the Environment in Iraq. 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. In addition, the Desk Study indicates that as of April 15, 2003, the coalition air forces had used 18,275 precision-guided munitions and around 8,975 unguided munitions. 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.
 
The law of war provides four customary principles that can be applied to an environmental analysis: necessity, proportionality, discrimination, and humanity. These general principles are drawn from the Hague Convention, signed in 1907. 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.

Prof. Zafer Ayaz during his presentation at the
United Nations on September 5, 2007.
Photo: Light Millennium

 
The 1907 Hague Convention
 
The Hague Convention of 1907 is an early example of a binding law of war. 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." Article 23 (g) would stand as a strong, binding international law prohibiting the destruction of the environment during war unless imperatively necessary. However, it is this very clause that makes Article 23 (g) somewhat problematic in affording protection against environmental destruction. The clause requires that military conduct be balanced against the principle of necessity, which could trump environmental concerns in many instances.
 
The Geneva Convention of 1949
 
The Geneva Convention of 1949 is very similar to the 1907 Hague Convention in scope and application to environmental protection.  Like the Hague Convention, Article 53 of the Geneva Convention forbids an occupying force from destroying any type of property, except when "absolutely necessary."  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. 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.
 
Protocol I to the Geneva Convention
 
Protocol I to the Geneva Convention was the first formal international law of war document to use the word "environment."  Although Protocol I has not been ratified by the United States, its provisions concerning the environment "have been officially cited by the United States."  The relevant portions of the document specifically address wartime environmental degradation and the associated weaponry.  The three relevant sections of Protocol I are Articles 35(3), 55, and 56. Although the use of the term "natural environment" is a promising and noteworthy development in the body of the law of war, other phrases in these articles of Protocol I have proven troublesome. Both Articles 35(3) and 55 only prohibit damage to the natural environment that is "widespread, long-term and severe." Another phrase of concern is "intended or may be expected" in Article 55. 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. 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."
 
The Convention on the Prohibition of Military or
Any Other Hostile Use of Environmental Modification Techniques (ENMOD)
 
ENMOD entered into force on October 5, 1978.The purpose of ENMOD-which was drafted in response to the use of deforestation chemicals in Vietnam is to prohibit environmental modification for hostile purposes. The significance of ENMOD is apparent when compared to the wording of Protocol I. 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. While ENMOD contains the same adjectives-"widespread," "long-lasting," and "severe" as Protocol I, ENMOD uses "or" instead of  "and" in connecting these terms. 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. Also of importance is the fact that ENMOD does not provide an exception for military necessity. Despite these important differences between ENMOD and Protocol I, critics suggest that ENMOD is not likely to curtail environmental degradation caused by war. 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. Critics have suggested that ENMOD, therefore, prohibits "the kinds of methods used by villains in science fiction rather than conventional warfare," since the environmental modification must be a "deliberate manipulation of natural processes-the dynamics, composition or structure of the earth.
 
Rio Declaration
 
Another international document that addresses environmental degradation that results from war is the Rio Declaration on Environment and Development of 1992. The Rio Declaration was a follow-up to the Stockholm Conference on the Human Environment of 1972, which was the first U.N. Conference that dealt solely with the environment. Unlike Protocol I and ENMOD, the Rio Declaration is a nonbinding document. 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. Most applicable to the issue of war and the environment are Principles 23 and 24 of the Rio Declaration. Principle 23 states, "[t]he environment and natural resources of people under oppression, domination and occupation shall be protected." Principle 24 states, warfare 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. Although these principles are nonbinding, they are considered as valuable instruments.
 
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. 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. The Guidelines list a series of prohibited acts within environmental degradation, including deforestation, and destruction of civilian objects or historic monuments.
 
Draft Articles on State Responsibility
 
In 1996, the International Law Commission adopted Draft Articles on State Responsibility. 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. 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. 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.
 
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. 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.
 
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. Under Article 93 of the U.N. Charter, all members of the U.N. are automatically parties to the Court. Although the ICJ is equipped to hear environmental war crimes cases, it is unlikely that it ever will. 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. Therefore, the ICJ is not an effective mechanism for enforcing environmental war crimes because it is unlikely that any nation would consent to jurisdiction.
 
2. International Criminal Court
 
Another possible enforcement mechanism for liability for wartime environmental degradation is the newly formed International Criminal Court (ICC). Organized pursuant to the Rome Statute, the ICC is the first international criminal tribunal. Though not organized with the intention of prosecuting environmental crimes, the Rome Statute includes a reference to environmental degradation in its list of justifiable offenses. Specifically, Article 8 of the Rome Statute includes "intentionally 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." Similar to the ICJ, it is unlikely that the ICC will be an effective tribunal for prosecuting environmental crimes. 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." 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. 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.
 
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. 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. We 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. 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." As a member of the U.N., Security Council resolutions are binding upon Iraq. 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. The Security Council, however, has had problems with enforcing resolutions; therefore, the U.N. created the UNCC through Resolution 687.
 
B. United Nations Compensation Commission (UNCC)
 
Paragraph 18 of Resolution creates a fund to pay compensation for claims that fall within paragraph 16 and establishes a Commission that will administer the fund. The UNCC is not a court, but rather is an administrative body that processes claims and determines proper amounts of payment from the fund. The UNCC set up a series of categories based on the different types of losses that were suffered by individuals. Those who suffered injury due to Iraq's actions could then submit claims within the categories and receive compensation from the UNCC. 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. 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. 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. The 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."
 
Adapting the United Nations Compensation Commission
 
Despite the numerous international law provisions that serve to protect the environment from degradation during war, there exists a gap between the growing international concern for the environment and the mechanisms that can actually curtail environmental damage caused by war. Among the current international law and warfare mechanism, the most citizen participation is in the UNCC, since individuals and corporations were given the ability to make claims and be awarded damages. This is noteworthy as UNCC awards are distributed to individual claimants through their governments, rather than directly to governments to use as it chooses. 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, the U.N. has a wide membership, and the support of the majority of the world's nations. 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.
 
The UNCC's ability to serve as a civil compensation scheme for wartime environmental damage is hampered by several issues. 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. 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. These costs are the result of the need for support staff as well as the high cost of specialists to serve as commissioners. These costs may well continue to be considerable, as it is estimated that it may take sixteen to thirty years to settle all claims.
Another strength of the UNCC as a model for a civil compensation mechanism for wartime environmental damage is its broad definition of "environmental damage."
 
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. However, before it can be utilized to redress environmental wrongs in future conflict, it must be adapted to increase its effectiveness.
 
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. 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. In an adapted version of the UNCC, environmental damage claims must be given a higher priority to ensure timely and successful processing of claims.
 
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. The UNCC, as it currently operates, relies upon Iraq's oil sanctions for its existence. 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. It is suggested voluntary contributions, taxes, and permits as possible revenue streams to support the UNCC.
 
3. Developing a Clear and Precise Definition of Environmental Damage
 
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. 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.
 
4. The Timing of Claims
 
Another important change to make is the implementation of more liberal filing deadlines for environmental claims. There should be a deadline so that the sanctioned nation need not fear the filing of claims indefinitely. However, this deadline should extend longer than the six years allowed under the current UNCC system. Wartime environmental damage of such magnitude will most probably have long-term, widespread and at present not yet fully apparent negative effects.
 
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. 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. 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.
 
Conclusion
 
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.


* Prof. Zafer Ayvaz, Editor of Ekoloji Magazine
Spokesman of the CEVKOR Foundation
Ege University, Izmir, TURKEY