The Iraqi invasion of Kuwait generated massive collateral damage to the environment and the ecosystem balance of the Persian Gulf. Although the current system of environmental protection during armed conflicts in international law still appears of difficult implementation, the United Nations Security Council has held Iraq responsible for environmental injuries resulting from the illegitimate occupation of Kuwait during the conflict.
By Valentina Chabert e Barbara Minicozzi
Wartime environmental protection in international law
Despite having the potential harmful impacts of armed conflict on natural ecosystems’ health status been recognised during the 17th century, the problem of environmental protection in times of war gained momentum within the international debate only from the end of the Second World War, as a consequence of the lasting negative environmental effects of nuclear weapons testing.[1] For this purpose, in light of the need of a more prominent protection of the environment against eventual side-effects of international armed conflicts – including, inter alia, chemical leakages, harmful pollutants and damaging weapons – the current framework of international law has evolved toward a direct and indirect environmental protection through wartime-applicable treaty and customary law provisions.[2]
Above all, the recognition of the devastating environmental implications of poisonous gases employed during the First World War led to the adoption of the Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare in 1925. As a matter of fact, the acknowledgement of the hazardous consequences of chemical weapons also on natural ecosystems, the Protocol configurates as a fundamental framework for the protection of the environment during armed conflicts.[3] Nonetheless, only few years after the end of the Second World War, States codified the rules and customs of warfare into four conventions, and specifically tackled the issue of wartime environmental protection in art. 53 and 147 of the 1949 Geneva IV Convention relative to the Protection of Civilian Persons in Time of War.[4] Along these lines, the environment is further protected in times of war by a number of customary rules of international law. Most notably, under the principle of discrimination, environmental protection can ensue from the distinction between military and civilian objects, thereby configuring attacks targeting environmentally meaningful areas (including national parks and forests) as contrary to this principle.[5] Similarly, the principle of proportionality requires incidental damage affecting the environment not to be excessive in relation to the military advantage anticipated from an attack on a military objective.[6]
The First Gulf War and environmental harm
The outbreak of the dramatic conflict in Iraq and the First Gulf War undoubtedly provoked a severe breach of the rules of the international legal system, as well as of the jus in bello. The war found its reasons in the defense of a paramount principle of the international system, namely State sovereignty: as a matter of fact, Iraq occupied the former British protectorate of Kuwait. Both economic and political reasons lay at the foundation of the conflict: hence, during those years Kuwait was selling more oil than OPEC-established quotas; in addition, Iraq considered the country as its own province based on historical motives.
Beyond this, Saddam Hussein’s determination to take advantage from the rapidly changing international system to launch its regional hegemony project in the Persian Gulf by controlling Kuwait’s oil resources lays at the heart of the hostilities. Conversely, the United States committed to prevent Saddam Hussein’s actions both as it would have represented an open attack against their interests linked to oil, and because it would have threatened Saudi Arabia, a key US ally in the Persian Gulf. Hence, as for the Korean War, a precise US interest figures in the Gulf War, in spite of the fact that the then American administration declared to have led the war for the sake of international legitimacy – and with the authorization of the United Nations. Moreover, under the presidency of Bush Senior, the United States managed to include a series of Arab countries in the international coalition to free Kuwait: indeed, a Western attack against an Arab country would have inevitably been seen as the return of colonialism.
The devastating consequences of the conflict evinced in particular in the countless environmental harm to the detriment of the territories and the natural resources of Kuwait, and – complementary – Turkey, Saudi Arabia, Syria and ultimately Jordan. Notably, Iraq burned more than 600 Kuwait-located oil wells, thereby causing severe pollution to the atmosphere, water resources and the Gulf’s desert and coastal areas.[7] Similarly, the “dirty” war caused two different kinds of consequences: on the one hand, direct implications concerned the severe destruction of local ecosystems on the part of the armed forces; on the other hand, indirect consequences resulted from a set of phenomena including the mass displacement of refugees, which in turn provoked grave harm to the regional biodiversity.[8
Above all, it is estimated that 60 million barrels of oil have been released in the area; these, in turn, would have been responsible for the creation of 246 oil lakes on a surface of up to 49 Km2, contaminating approximately 40 million tons of land.[9] “Complicit” of the environmental damages has been the wind, which on hydrophobic and anaerobic soil contributed to carry the residues of burnt oil, thereby provoking an increase in the formation of sand dunes.[10] Not only did the Gulf War environmental injuries harmed the atmosphere of States as Pakistan and Russia, but they also left a new trench open: according to Lamya Hayat from Kuwait University, polluting substances released by oil wells firings in 1991 induced a triplication of cancer cases in Kuwait, as well as an increased incidence of neurological diseases, asthma and allergies.[11] Food has been similarly contaminated, with 98% of local-produced grains and milk now containing nickel and vanadium.
Eventually, a report commissioned by the Research Advisory Committee on Gulf War Veterans officially confirmed – though years later – the existence of the “Gulf War Syndrome”, which hit more than 175,000 veterans. It manifested through neurological, digestive, respiratory and cognitive problems, and ultimately the exposure to pesticides and fumes from burning oil wells has been included in thousands of soldiers’ medical records.
Iraq’s responsibility in international law
In spite of the fact that both the Coalition Forces and Iraq caused severe damages to the environment during the conflict, in the aftermath of the war the international community and the United Nations called for the sole responsibility of Iraq for its environmental reckless conduct, and especially for the release of oil into the Persian Gulf and the systematic sabotage of Kuwaiti oil-wells from February 1991.[12] Therefore, these actions were assessed in light of the International Humanitarian Law regime.
Above all, the Gulf War called into question the adequacy of existing international law instruments for environmental protection in armed conflicts, as the 1976 Environmental Modification Convention (ENMOD) and the 1977 Additional Protocol I to the Geneva Conventions.[13] In particular, the burning of oil wells and oil spills into the Persian Gulf provoked by Iraqi forces were found to be out of the scope of articles I and II of ENMOD Convention, which compels member States “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 party”.[14] For this reason, Jordan raised concern over the broadness and vagueness of the convention, stressing the impossibility to be enforced due to the lack of a proper mechanism for investigation and dispute settlement; hence, the ENMOD Convention revealed to be painfully inadequate during the Gulf conflict.[15]
On the contrary, Iraq’s actions in releasing oil from tankers were considered to be disproportionate and potentially malicious: in this regard, as far as customary international law is considered, Iraq violated the principles of proportionality and necessity, and it additionally failed to adopt a precautionary approach with respect to the environment nor any consideration of the environmental impact of the damage on the present and future Gulf population.[16] In fact, oil-wells destruction would not have given Iraqi forces a definite military advantage as well as they would not have resulted in the coalition’s surrender or overall resolution of the conflict. For this reason, the uncontrolled oil flow threatening the environment and residential areas could not have been considered collateral damage, as it was disproportionate to the military advantage anticipated.[17]
As far as the doctrine of State responsibility is concerned, in the case of Iraq it is clearly established that the country’s actions causing significant damage to Kuwait’s ecosystem resulted in the violation of several norms of International Humanitarian Law. Notably, such violations were committed by Iraqi military forces , which imply the responsibility of Iraq and its obligation to make reparations for the fact that the conduct of the army is attributable to the State.[18] Interestingly, Iraq’s invasion of Kuwait led the United Nations Security Council (UNSC) to consider for the first time the responsibility of States for the adverse environmental consequences of unlawful military actions. Hence, UNSC Resolution 687 affirmed that “Iraq is liable under international law for any direct loss, damage, including environmental damage and the depletion of natural resources […] as a result of its unlawful invasion and occupation of Kuwait”.[19] Nonetheless, Iraq was held responsible for its illegal conducts during the war on grounds of a violation of jus ad bellum and not jus in bello nor international environmental law, which demonstrates the lack of clarification of international humanitarian law provisions for environmental protection during warfare.[20] Eventually, Iraq was compelled to a compensation for damages to the environment equal to $85 billion.[21]
Note
[1] Kirchner, Environmental protection in time of armed conflict, European Environmental Law Review, ottobre 2020, p. 266.
[2] V. Chabert, La protezione dell’ambiente durante i conflitti armati nel diritto internazionale, Opinio Juris – Law and Politics Review, Gennaio 2022. Disponibile al link: https://www.opiniojuris.it/environmental-protection-in-armed-conflicts-an-international-law-perspective/ (accessed on 18.01.22).
[3] Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (Geneva Protocol), 1925. Available from: https://www.un.org/disarmament/wmd/bio/1925-geneva-protocol/ (accessed on 18.01.22).
[4] Geneva Convention (IV) relative to the protection of civilian persons in time of war, 1949. Available from: https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.33_GC-IV-EN.pdf (accessed on 18.01.22).
[5] Adriansyah, The adequacy of international legal obligations for environmental protection during armed conflict, Indonesia Law Review, 3(1), January – April 2013, p. 71.
[6] J.M.Henckaerts, L. Doswald-Beck, Customary International Humanitarian Law, Volume I, Rules, Cambridge University Press, Cambridge, 2005, p. 147.
[7] M. Alberton, La quantificazione e la riparazione del danno ambientale nel diritto internazionale e dell’Unione Europea, Giuffrè Editore, 2011, p.64
[8] Available from https://www.limesonline.com/la-sporca-guerra-conflitti-e-ambiente/9314 (accessed on 26.01.22).
[9] A. Y. Al-Ghunaim, Devastating Oil Wells as Revealed by Iraqi Documents, Center for Research and Studies of Kuwait, 1997.
[10] F. El-Baz, Kuwait Desert after Liberation, Boston University Center for Remote Sensing, 1994.
[11] Available from https://www.lescienze.it/news/2002/03/29/news/l_inquinamento_della_guerra_del_golfo-589778/ (accessed on 26.01.22).
[12] O. Das, Environmental protection, Security and Armed Conflict. A Sustainable Development Perspective. Celtenham, UK; Northampton, MA, USA, Edward Elgar, 2013, p. 147.
[13] United Nations Environment Programme, Protecting the Environment During Armed Conflict: an inventory and analysis of international law, 2009, p. 8. Disponibile al link: https://postconflict.unep.ch/publications/int_law.pdf (accessed on 25.01.22)
[14] Convention on the prohibition of military or any other hostile use of environmental modification techniques, New York, 10 December 1976. Available from: https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=XXVI-1&chapter=26&clang=_en (accessed on 25.01.22).
[15] Adriansyah, The adequacy of international legal obligations for environmental protection during armed conflict, Indonesia Law Review, 3(1), January – April 2013, pp. 60-61.
[16] O. Das, op. cit.,p. 149.
[17] Ivi, p. 151.
[18] International Law Commission, Draft Articles on State Responsibility, art. 4 and 7.
[19] UNSC, Resolution 687, 1991. Available from: https://www.un.org/Depts/unmovic/documents/687.pdf (accessed on 25.01.22).
[20] O. Das, op. cit., p. 181.
[21] United Nations Environment Programme, Protecting the Environment During Armed Conflict: an inventory and analysis of international law, 2009, p.8.
Photo: Al Ahmadi, Kuwait, 1991, KUWAIT-10001. Camel and Oil Fields Sandwiched between blackened sand and sky, camels search for untainted shrubs and water in the burning oil fields of southern Kuwait. Their desperate foraging reflects the environmental plight of a region ravaged by the gulf war.