“L’essentiel est invisible pour les yeux”
A. de Saint-Exupéry, Le Petit Prince
Oil refineries and fuel tankers have been a priority target since the beginning in September 2014 of the air strikes against the self-proclaimed Islamic State in Iraq and Syria [ISIL or Daesh] in an effort to curb the terrorist group’s main source of revenues.Footnote 1 From June 2016 onwards, ISIL itself ignited oil wells, storage tanks, and a sulphur factory in the area of the Iraqi town of Qayyarah, located to the south of Mosul. Efforts to extinguish the fires took nine months, given the complexity of the security and humanitarian situation around Qayyarah, with over one million displaced persons.Footnote 2 Although the military strategy of targeting oil infrastructures is not unprecedented, its detrimental environmental impact and health consequences are a matter of serious concern. Oil fires release toxic substances into the air and surrounding areas (notably, sulphur dioxide and nitrogen dioxide) that may later permeate the soil and underground aquifers, causing severe and long-lasting harm to the environment and human health. The diffusion of such dangerous pollutants increases the risk of respiratory diseases, cancer, and mortality, threatens wildlife and biodiversity, and impairs the capacity of a war-torn country to recover and move forward. These fears have been confirmed by UN Environment in a recent study.Footnote 3
The targeting of oil infrastructures by ISIL and the forces that oppose ISIL draws attention to the devastating effects of military strategies of this kind on the natural environment, as well as on human wellbeing, and brings (back) to the forefront an issue that is often peripheral to official narratives about conflict. The legal debate on the protection of the environment in armed conflict has indeed regained momentum over the last decade, also thanks to the inclusion of the topic in the International Law Commission’s programme of work.Footnote 4 At the risk of oversimplifying, two primary concerns have attracted scholarly attention.
The first is the limited protection enjoyed by the environment in the laws of armed conflict: there is a prevailing consensus in the literature that the present body of law is “unsatisfactory”.Footnote 5 Treaty law and customary rules are either too vague or too restrictive.Footnote 6 The special discipline in Additional Protocol I to the Geneva Conventions, which attempts to establish a threshold of “impermissible environmental damage”,Footnote 7 appears not to have any practical value. Other norms in international humanitarian law [IHL]Footnote 8 that may offer indirect protection to the environment (e.g. rules protecting enemy property) are subordinate to the doctrine of military necessity, which involves a high dose of subjectivity in assessing the degree of environmental damage that is acceptable in the pursuit of legitimate military objectives. Further, as these rules are not intended to address environmental concerns, doubts arise as to whether they can provide protection to elements of the natural environment that do not strictly qualify as “property”,Footnote 9 or that do not fall entirely within the territory of a belligerent state.Footnote 10 The contribution of the principles of the jus in bello (i.e. distinction, proportionality, necessity, and humanity) is also limited, given their “indefinite nature”,Footnote 11 as well as subjectivity in their interpretation and application.
The second, which has featured less prominently in legal debates, relates to the enforcement and implementation of responsibility, including for reparation. The creation of an ad hoc institutional mechanism to monitor the implementation of the law, investigate violations, and redress conflict-related environmental damage is seen by many as a desirable solution.Footnote 12 In this regard, the United Nations Compensation Commission [UNCC] created by the United Nations Security Council [UNSC] to respond to, inter alia, the environmental damage caused by Iraq’s military offensive in Kuwait,Footnote 13 is considered the successful precedent to look at, as it remains—at present—one of the very few examples of institutional mechanisms that held a state liable for its conduct during warfare and, most essentially, for the environmental damage caused as a result.Footnote 14
Through an examination of the practice of the UNCC, the overarching purpose of this paper is to draw attention to some problematic dimensions of the compensation regime for the environmental impact of the 1990–91 Gulf War, and thus raise questions on its capacity to influence future responses to environmental damage in the context of contemporary armed conflicts. Conflict-related environmental issues have been rarely addressed in judicial and non-judicial settings.Footnote 15 The precedent of the UNCC is a notable exception and generally hailed as a success story. However, as is often the case, the devil is in the details. By challenging the predominant narrative, this paper will shed light on some controversial dimensions of the UNCC’s approach vis-à-vis conflict-related environmental damage. The argument made here is that the successful outcome of the UNCC in terms of environmental reparation cannot be separated from its exceptional application of international rules and principles. From its creation to the enforcement of compensation awards, the UNCC has been characterized by a “logic of exception”, which makes its precedential value problematic at least. Eventually, as the international community becomes aware of the importance of safeguarding scarce and critical environmental resources, the time has come to move away from this “logic of exception” and imagine alternatives that are more attentive to the dynamics of present-day armed conflicts and their multiple environmental impacts.
The remainder of the paper proceeds as follows: Part I provides a brief background on the 1990–91 Gulf War and the establishment of the UNCC. Part II draws attention to the unique UNCC’s institutional framework and decision-making process, and how these facilitated compensation for environmental damage. Part III interrogates the legacy of the UNCC as an institutional response to conflict-related environmental issues by focusing on three controversial aspects of its work: the normative framework relied upon by the Commission (jus ad bellum v. jus in bello); its application of the law of state responsibility, notably in the matters of causation and remedies; and the enforcement of environmental compensation awards, including problems with the punitive or biased nature of UNSC Resolution 687. Part IV concludes.
I. THE ENVIRONMENTAL IMPACT OF THE 1990–91 GULF WAR AND THE CREATION OF THE UNCC
The Gulf War began on 2 August 1990 with the invasion and subsequent annexation of Kuwait. At the time, Saddam Hussein’s decision to invade Kuwait appeared as a blatant challenge to the international regime created by the UN Charter, in particular to the prohibition of the use of force as envisaged in Article 2(4).Footnote 16 The reaction of the international community was immediate: the UNSC was able to adopt multiple binding resolutions, which condemned the invasion,Footnote 17 imposed economic sanctions on Iraq,Footnote 18 and authorized the use of force against Iraq by a Coalition of States.Footnote 19
After the Coalition Air Force led by the US attacked Iraq on 16 January 1991, Iraq released millions of gallons of Kuwaiti crude oil into the Persian Gulf.Footnote 20 Further, some of the major Kuwaiti oil refineries were targeted;Footnote 21 it was at the end of February 1991 that the Iraqi army, retreating from Kuwait, started hundreds of fires in oil wells.Footnote 22 Other actions that contributed to environmental degradation in the region included the release by Iraq of 150 barrels of crude oil into the desert, which generated oil lakes,Footnote 23 as well as the mass use of mines and booby traps by both the Coalition Forces and Iraq.Footnote 24 Evidence collected by the United Nations Environment Programme [UNEP] shows that the environmental impact of Iraq’s military campaign was severe.Footnote 25 The oil spill in the Persian Gulf damaged a fragile marine habitat, already affected by pollution caused by the oil industry.Footnote 26 Animal species, such as migratory birds (the image of “oiled birds” was broadcast in all media), marine turtles, whales, and dolphins, as well as their ecosystems, such as coral reef and mangroves, were seriously impacted.Footnote 27 The explosion of oil wells released a number of pollutants into the atmosphereFootnote 28 and created thick smoke clouds, the transboundary effects of which, in terms of air pollution, were not limited to the Gulf States, but similarly affected India and Pakistan.Footnote 29 As a consequence, reduced daylight, acid rain, and a drop in temperature of up to ten degrees Celsius were reported throughout the region.Footnote 30 The release of the oil in the desert damaged the soil and plants, and further contaminated the underground aquifers.Footnote 31
The war formally ended on 6 April 1991, when Iraq accepted the peace terms set forth by UNSC Resolution 687.Footnote 32 The UNSC “reaffirmed” that Iraq was “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 results of Iraq’s unlawful invasion and occupation of Kuwait”.Footnote 33 The same resolution created a fund to pay compensation for claims that fell within the above categories of damage, with the UNCC to administer the fund.Footnote 34 Following the report issued by the UN Secretary General pursuant to paragraph 19 of Resolution 687, the UNCC and its Governing Council were established, with the duty to decide, inter alia, the “requirement for Iraqi contributions” to the fund, “with respect to all Iraqi petroleum and petroleum products exported from Iraq after 3 April 1991, as well as such petroleum and petroleum products exported earlier but not delivered or not paid for as a specific result of the prohibitions contained in resolution 661 (1990)”.Footnote 35
Although the 1990–91 Gulf War was neither the first armed conflict that resulted in severe environmental harm,Footnote 36 nor will it be the last,Footnote 37 the reaction of the international community to the reckless conduct of the Iraqi Armed Forces was unprecedented. For the first time, the UNSC referred to “environmental damage and depletion of natural resources” in the context of war reparations, and put in place an institutional mechanism to award compensation. Yet, one cannot accurately appreciate the legacy of the UNCC in the environmental field without drawing attention to the exceptional circumstances of its creation, which in turned influenced its institutional framework, legal practice, and outcome.Footnote 38
II. INSTITUTIONAL FRAMEWORK AND ENVIRONMENTAL AWARDS
A. The Unique Structure of the UNCC
A point to be immediately noted is the unique institutional framework of the UNCC. International claims and compensation commissions are institutions established by an agreement between two or more states, or by an international organization, to settle interstate claims (or private claims against the respondent state) that, in the majority of cases, arise out of armed conflict, episodes of domestic disturbance, or revolutionary events.Footnote 39 They are considered by some scholars as a subcategory of international arbitral institutions.Footnote 40 More precisely, international claims/compensation commissions have been described as “an arbitration (1) established by agreement of two or more States, (2) to adjust a class of claims within a specified competence, (3) brought or espoused by nationals of the parties, and which (4) actually rendered an award on some or all of those claims”.Footnote 41 The UNCC departs in several ways from this definition of international claims and compensation commissions.
The UNCC was created by the UNSC acting under Chapter VII of the UN Charter and, from the beginning, it was intended as a “subsidiary organ” of the Council with the task of performing a variety of administrative, financial, legal, and policy functions.Footnote 42 The main organ of the UNCC was its 15-member Governing Council, comprising representatives of the members of the UNSC at a given time, whose fundamental functions were to establish guidelines on the major issues (e.g. categories of claims, definition of “direct loss”, requirements for the presentation of claims, procedures to settle disputed claims)Footnote 43 and take the final decision on the claims brought before them.Footnote 44
The Governing Council was assisted by a number of commissioners, nominated by the UN Secretary General and appointed by the Governing Council, having expertise in strategic areas, such as law, finance, accountancy, and environmental damage assessment.Footnote 45 The commissioners worked in three-member Panels, each dealing with a particular category of claims. The task of the Panels was to review the evidence provided by the claimants, evaluate the validity of the claims, quantify the loss or injury in monetary terms, and issue recommendations for the Governing Council on the amount of compensation to be paid.Footnote 46
Not only did the UNSC play a central role in the administration of the institution, but, contrary to the rule that each party in an arbitral proceeding is entitled to appoint an arbitrator, Iraq was not represented in the Governing Council, nor were Iraqi nationals appointed as Commissioners. It will be seen how these features had an impact on the compensation of conflict-related environmental damage.
B. The Legal Basis for Iraq’s Liability and Impact on Compensation for Environmental Damage
The legal basis for Iraq’s liability is spelled out in UNSC Resolution 687, which “reaffirms” the country’s liability under international law for environmental damage and depletion of natural resources resulting from Iraq’s invasion and occupation of Kuwait. Whilst the text of the resolution refers generally to liability “under international law”,Footnote 47 scholars contend that the wrongful act in Resolution 687 that gives rise to Iraq’s liability is a violation of the jus ad bellum (i.e. the unlawful invasion and occupation of Kuwait).Footnote 48 Interestingly, there is no express reference to any violation of IHL in Resolution 687, albeit in a number of previous resolutions the UNSC stressed that Iraq was bound by the Fourth Geneva Convention of 1949 and was responsible for any breaches of that instrument.Footnote 49
This interpretation is supported by subsequent decisions of the Governing Council. With Decision 7, the Governing Council held that “payments are available with respect to any direct loss, damage, or injury to governments or international organizations as a result of Iraq’s unlawful invasion and occupation of Kuwait”.Footnote 50 Although the Governing Council was silent on the applicability of the laws of armed conflict, it specifically allowed for compensation of any losses and damage arising out of military operations or threat of military actions “by either side”.Footnote 51 As a consequence, Iraq had to pay compensation even if the Iraqi forces did not violate any IHL norms in the specific case, and even if the damage was caused by the Coalition.Footnote 52 By holding Iraq liable also for the damage caused by the Coalition Forces, the Governing Council indirectly confirmed that Iraq was in breach of Article 2(4) of the UN Charter and that such violation of the jus ad bellum constituted the legal basis of its international liability.
The impact of Resolution 687 and Governing Council’s Decision 7 on compensation for environmental damage should not be underestimated. The claimants were absolved from demonstrating that the acts of the Iraqi military were in breach of the jus in bello and that the specific environmental damage was a direct consequence of this violation.Footnote 53 Notably, the claimants did not have to prove that the threshold(s) of environmental damage established under the laws of armed conflict had been reached, nor was Iraq allowed to invoke defences under the jus in bello (e.g. military necessity). Relying on UNSC Resolution 687 and the Governing Council’s decision, the Panel in charge of environmental claims considered the issue of Iraq’s liability to be outside its mandate, and focused exclusively on the evaluation of the claims and determination of the compensation to be paid.Footnote 54
C. Review of Environmental Claims and Awards
The claims were divided into six categories: categories A, B, C, and D for claims by individuals, category E for claims by corporations, and category F for claims by governments and international organizations. Environmental claims were part of category F, more precisely F4. The Panel in charge of environmental claims began its work in 2000, almost ten years after UNSC Resolution 687 was adopted, and completed the review process in 2005. Some scholars observe that the significant lapse in time, as well as the inclusion of environmental claims into the F category evince the low priority of environmental claims in the overall process.Footnote 55 Undoubtedly, environmental claims represented a small fraction of the total number of claims reviewed by the UNCC.Footnote 56 Yet, it is the inclusion of environmental claims in the process that makes the approach of the UNCC unprecedented.
Being the first time that conflict-related environmental issues were addressed by a compensation commission, a difficult question to be answered concerns the definition of actionable harm. What types of losses or injuries should be made compensable as “direct environmental damage and [the] depletion of natural resources”? The answer was provided by the Governing Council with Decision 7:
a) abatement and prevention of environmental damage; b) reasonable measures already taken to clean and restore the environment or future measures which can be documented as reasonably necessary to clean and restore the environment; c) reasonable monitoring and assessment of the environmental damage for the purpose of evaluation and abating the harm and restoring the environment; d) reasonable monitoring of public health and performing medical screenings; and e) depletion of or damage to natural resources.Footnote 57
This list includes both economic losses incurred by states to monitor, assess, mitigate, and restore environmental damage and its health consequences, as well as category (e) which, as we will see, has been interpreted to cover losses of environmental resources without a commercial value (i.e. pure environmental damage). In its first report, the F4 Panel dealt with claims for monitoring and assessing the effects of the Gulf War on the environment and on public health in neighbouring countries; it awarded US$243 million to Saudi Arabia, Kuwait, Iran, Jordan, and Syria.Footnote 58 In its second report, the Panel focused on claims from countries that provided technical assistance to the Gulf States in responding to and mitigating the environmental impact of the conflict (so-called “environmental solidarity costs”).Footnote 59 The Panel found that neither UNSC Resolution 687, nor Governing Council decisions, limited compensation to loss or expenses incurred by the Gulf States, and that costs resulting from third countries’ assistance to the states in the region could be claimed as well. These countries, including Australia, Canada, Germany, the US, the UK, and the Netherlands, were awarded a total of US$8.4 million.
The final three reports dealt with claims for remediation of environmental damage and depletion of natural resources. In addition to the costs for restoring damaged environmental resources, in an unprecedented move the F4 Panel recognized that “pure environmental damage” was also compensable.Footnote 60 On the one side, some claimants contended that the temporary loss of the use of natural resources ought to be compensated; Iraq, on the other side, argued that only financially assessable losses are subject to compensation under the law of state responsibility, hence interim loss of non-commercial natural resources had to be rejected.Footnote 61 The Panel had to solve the issue of whether “claimants who suffer[ed] damage to natural resources that have no commercial value are entitled to compensation beyond reimbursement of expenses incurred or to be incurred to remediate or restore the damaged resources”.Footnote 62 It maintained that nothing in the texts of Resolution 687 and Governing Council decisions restricted compensation to damage to natural resources that have a commercial value.Footnote 63 The Panel went even further and affirmed that its statement was not inconsistent “with any principle or rule of general international law”. It observed that the fact that some conventions on civil liability exclude compensation for pure environmental damage is a not a “valid basis for asserting that international law, in general, prohibits compensation for such damage in all cases, even where the damage results from an internationally wrongful act”.Footnote 64 Examples of “pure environmental damage” awarded by the F4 Panel include upholding Jordan’s claim for loss of its wildlife habitat (US$160.3 million) and Saudi Arabia’s allegations of damage to its costal shorelines (US$46.1 million).Footnote 65
These cases demonstrate that the F4 Panel was able to take innovative approaches on many controversial issues, notably compensation of “environmental solidarity costs” and “pure environmental damage”. Yet, arguably, such developments would have been more difficult to achieve without the support of the Governing Council decisions recalled above and the authority of UNSC Resolution 687.
III. A CRITIQUE OF THE UNCC AS AN INSTITUTIONAL RESPONSE TO CONFLICT-RELATED ENVIRONMENTAL CONCERNS
Accounts of the legacy of the UNCC in the area of compensation for conflict-related environmental damage are, unsurprisingly, positive. By June 2005, the F4 Panel had reviewed 168 environmental claims and recommended awards totalling US$5.26 billion, of which US$4.97 billion had actually been paid by January 2011; this sum represents the largest amount of compensation for environmental damage in international law.Footnote 66 Further, as observed above, the UNCC dealt with a variety of technical issues and elaborated principles that may inform future environmental litigation. In terms of actionable harm, with Decision 7 the Governing Council identified a list of categories of losses which constituted “direct environmental damage and depletion of natural resources”, later clarified by the F4 Panel. Additionally, the F4 Panel applied innovative methods borrowed from environmental disciplines to define criteria for the evaluation and monetary compensation of “pure environmental damage” (e.g. the Habitat Equivalency Analysis).Footnote 67
Yet, any assessment of the UNCC as an institutional response to the environmental impact of armed conflict cannot focus exclusively on the work of the F4 Panel with regard to environmental claims, but equally requires a look at the bigger picture. In what follows, I question of the legacy of the UNCC by focusing on three critical issues: the normative framework applied by the Commission; its application of the law of state responsibility (notably, the rules on causation and remedies); and the enforcement of international liability, including the punitive and biased character of UNSC Resolution 687 and, indirectly, the Commission.
A. Liability for Environmental Damage Under the Jus ad Bellum: Some Unintended Consequences
As noted above, UNSC Resolution 687 referred in general terms to Iraq’s liability under international law, without specifying which laws, treaties, or customs Iraq had breached.Footnote 68 Decision 7 of the Governing Council clarified that the legal basis of Iraq’s liability (including for environmental damage) should be found in the international prohibition on the use of force (the jus ad bellum).Footnote 69 The F4 Panel followed up and, in its decision-making process did not refer to any additional rules of international law (e.g. the jus in bello or international environmental law) to further demarcate the scope of Iraq’s liability for environmental damage.
It should be noted that the UNCC was not conceived as a judicial body, but as a fact-finding/administrative organ in charge of resolving and processing claims, with limited “quasi-judicial functions”.Footnote 70 Nonetheless, Article 31 of the Provisional Rules for Claim Procedure provided that the Commissioners shall apply, in addition to UNSC’s resolutions and Governing Council’s decisions, “other relevant rules of international law”, where necessary.Footnote 71 The F4 Panel, however, interpreted “necessary” quite narrowly, as referring to situations “where the Security Council resolutions and the decisions of the Governing Council do not provide sufficient guidance for the review of particular claim”.Footnote 72 In other words, although in principle the Commissioners were not precluded from referring to the jus in bello or other international legal frameworks (e.g. international environmental law) while adjudicating environmental claims, such a possibility was not considered.
What are the implications (if any) of framing Iraq’s liability for environmental damage as a violation of the jus ad bellum?
It can be argued that the UNCC contributed to the development of the law on environmental protection in times of armed conflict, as it recognized the jus ad bellum as a complementary framework to address wartime environmental wrongs.Footnote 73 If one considers the flaws and high threshold of damage under the provisions of the laws of war, the jus ad bellum offers an easy escape route to hold a state accountable for all environmental damage ensuing from the initial breach (i.e. the illegal use of force).
The intense scholarly debate surrounding the legality of Iraq’s conduct under the laws of armed conflict seems to confirm the advantages of relying on the jus ad bellum. With regard to the provisions offering direct protection to the environment in wartime (i.e. the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques [ENMOD] and Articles 35(3) and 55 of Additional Protocol I), commentators observe that Iraq was not party to Additional Protocol I or the ENMOD Convention, and that the two treaties did not reflect customary law at that time.Footnote 74 Had the two treaties been binding, the majority of commentators contend that the environmental damage caused by Iraqi forces did not reach the threshold set in Articles 35(3) and 55 of Additional Protocol I, particularly the long-term requirement. Scholars also maintain that the actions of the Iraqi forces could not strictly qualify as an “environmental modification technique” pursuant to the ENMOD Convention.Footnote 75 Concerning the provisions offering indirect protection to the environment, some scholars claim that Iraq was in breach of the prohibition of unnecessary destruction of enemy property, as the military rationale behind the oil fires was questionable at the very least,Footnote 76 and arguably were not “imperatively demanded by the necessities of war”.Footnote 77 Further, it has been noted that whilst oil refineries may be regarded as military objectives, the oil wells destroyed by Iraq “were mining crude oil, not refining it”,Footnote 78 a difference that may change their nature as legitimate military targets. Other commentators, however, have more nuanced views and argue that the defence of military necessity may have justified some of the actions carried out by the Iraqi military in Kuwait, including some of the oil fires and spill, because they slowed down the operation of the Coalition air and ground forces, thus offering some military advantage to Iraq.Footnote 79
Although, at first sight, reference to the jus ad bellum may offer a clear advantage in establishing that a state has breached an international obligation, the pitfalls of an expansion of the jus ad bellum so as to include liability for wartime environmental damage must also be considered.
First, the jus ad bellum and the jus in bello are complementary, but separate, bodies of law, with different rationales, beneficiaries, and sanctions.Footnote 80 The jus ad bellum is, in general terms, a more rudimentary framework than the jus in bello. The scope of the jus ad bellum is to regulate and restrain the international use of force, not to identify the rules of behaviour to which belligerents must comply. Thus, the jus ad bellum does not and cannot provide clear guidance on what level of environmental damage is permitted and what proscribed in the conduct of hostilities, and what procedural obligations belligerents must observe to ensure adequate protection of the environment.
Related to this point is the critique that the UNCC’s preference for the jus ad bellum resulted in an insignificant contribution to the clarification of the provisions relevant for the protection of the environment in wartime (e.g. the jus in bello, international environmental law).Footnote 81 In an area where international practice is almost absent, the creation of an institution explicitly mandated to address conflict-related environmental damage offered a unique opportunity to apply scattered, vague legal concepts and obligations to concrete cases. Such an opportunity was missed.
Second, a distinction ought to be made between the liability arising out of a violation of the jus ad bellum as opposed to the jus in bello. The approach of the Eritrea-Ethiopia Claims Commission in this regard seems to better reflect the different rationales of the jus ad bellum and the jus in bello. The Commission took the view that Eritrea (the aggressor) could not bear the “sole legal responsibility for all that happened throughout the two years of the conflict”.Footnote 82 In more general terms, the Commission maintained that “[a] breach of the jus ad bellum by a State does not create liability for all that comes after”.Footnote 83 On the basis of the two criteria of proximity and foreseeability, a benchmark was established, against which the Eritrea-Ethiopia Claims Commission assessed whether or not a specific injury or loss was a result of the initial breach of the jus ad bellum.
The distinction does not concern only the scope of liability but, according to the Eritrea-Ethiopia Claims Commission, it has some bearing on the amount of compensation as well. In addition to considering claims for violations of the jus in bello and the jus ad bellum in separate headings, the Commission maintained that “while appropriate compensation to a claiming State is required to reflect the severity of damage caused to that State by the violation of the jus ad bellum, it is not the same as that required for violations of the jus in bello”.Footnote 84 In particular, in instances where the Commission awarded compensation for violations of the jus ad bellum, the amount was lower than what would have been recognised in a case of violation of the jus in bello.Footnote 85 If one follows the Eritrea-Ethiopia Claims Commission’s line of argument, compensation for environmental damage caused by a breach of the jus ad bellum will be lower than if the same damage was a result of a violation of the jus in bello. Considering that significant amounts of money are often required to remedy environmental damage, the consequence of relying on the jus ad bellum would be paradoxical in practical terms.
Third, there is a more subtle risk in the decision to ground a state’s liability for environmental damage in a breach of the jus ad bellum. According to classical deterrence theories, a way to reinforce the protection of the environment during armed conflict, and to strengthen compliance with international obligations, is to hold a transgressor state liable for its breach(es). The decision to link Iraq’s liability to the illegal use of force against Kuwait may have a positive effect on compliance with the jus ad bellum, as it reinforces the mandatory nature of the prohibition in Article 2(4) of the UN Charter. The same cannot be said with regard to the obligations under the jus in bello, most notably those pertaining (directly or indirectly) to the protection of the environment. Indeed, these obligations are weakened by the lack of any reference to IHL in the practice of the UNCC. The impression one may get is that environmental damage becomes a serious concern of the international community (and its institutions) only when it arises out of an unlawful use of the force, whereas what happens after the “first fatal blow” is without any legal consequence.
Whilst the proverbial “stick” approach is important to secure compliance with international obligations, the “carrot” approach also has a role to play. As the Eritrea-Ethiopia Claims Commission puts it, “[i]mposing extensive liability for conduct that does not violate the jus in bello risks eroding the weight and authority of that law and incentive to comply with it, to the injury of those it aims to protect”.Footnote 86 To put it differently, why should an unlawful aggressor respect the laws of war, if after the conflict it will not be allowed to invoke compliance with such law to mitigate its liability?Footnote 87
Ultimately, maintaining a distinction between liability ensuing from violations of the jus ad bellum and of the jus in bello serves a more fundamental goal, that is, to ensure that belligerent parties respect IHL regardless of the legality of their use of force. Otherwise, an armed conflict is transformed into “a struggle which may be subject to no regulation at all”.Footnote 88 In that case, the environmental and human toll of unrestrained conduct of warfare would be dramatic, leaving a post-conflict country with no hope for a future of sustainable peace and development.
In sum, although relying on the jus ad bellum to impose liability for wartime environmental damage may appear to offer some advantage, there are several risks associated with giving precedence to such body of law at the expense of the jus in bello, which must be exposed as well.
B. The UNCC and the Law of State Responsibility: Causation and Remedies
Iraq’s obligation to provide compensation for the damage (including environmental damage) caused by the illegal use of force against Kuwait is often seen as an application of the law of state responsibility. It has been argued that “[t]he Commission is a concrete manifestation of the international community’s commitment to the principles of state responsibility”.Footnote 89 Pursuant to the law of state responsibility, as codified by the International Law Commission [ILC], “every internationally wrongful act of a State entails the international responsibility of that State”.Footnote 90 Two elements are required to give rise to state responsibility: conduct attributable to the state and the breach of a legal obligation binding upon that state.Footnote 91
A state responsible for an internationally wrongful act has an obligation to make “full reparation” for the injury caused by its action or omission.Footnote 92 The concept of “injury” is defined by the ILC as including “any damage, whether material or moral, caused by the internationally wrongful act of a State”; Article 31(2) makes it clear that there must be a causal link between the internationally wrongful act and the damage. Briefly, state responsibility requires a violation of an international obligation; the consequential duty to provide reparation arises only in relation to damage that is causally linked to the violation.
This section focuses on the requirement of a causal link between the wrongful act and the injury to the environment, and examines how the UNCC dealt with this aspect. Then, the approach of the UNCC with regard to the question of remedies, and in particular compensation for “pure environmental damage” (or “non-use values”), will be discussed.
The ILC Commentary maintains that the injury should not be “too remote” or “consequential” to be the subject of reparation, although it is recognized that the “requirement of a causal link is not necessarily the same in relation to every breach of an international obligation”.Footnote 93 As reaffirmed recently by the International Court of Justice [ICJ], establishing a causal connection between a certain conduct and the injury to the environment is particularly problematic.Footnote 94 Difficulties arise from the very nature of environmental damage and include the following factors: the geographical distance between the source of pollution and the damage; the time lapse between the conduct and the effects of the conduct on the environment; and, most significantly, the multifactorial origin of harms to the environment.Footnote 95 Similarly, the Eritrea-Ethiopia Claims Commission raised questions about attribution and co-causation of environmental damage when rejecting Ethiopia’s environmental claims.Footnote 96 As such, the Commission noted that “[t]he Damages Memorial did not address the possibility that Ethiopian forces or civilians may have played some role in environmental degradation during the war”.Footnote 97
The UNCC took a different approach. First, it avoided the problem of co-causation, as Iraq was deemed to bear the sole responsibility for all episodes of environmental damage which had occurred during the conflict. Second, to demarcate the scope of Iraq’s responsibility, the Governing Council held that only “direct environmental damage” ensuing from Iraq’s invasion of Kuwait was to be compensated. Scholars, however, have criticized the terminology used by the Governing Council (i.e. “direct damage”) for being confusing and unclear.Footnote 98 In any event, by listing the categories of environmental damage that were deemed a “direct” consequence of Iraq’s wrongful act, Decision 7 of the Governing Council provided clear guidance to the F4 Panel and made the subsequent task of establishing a causal correlation between a particular environmental loss or expense and the war (or better, Iraq’s aggression) much easier.
If state responsibility is enforced before a court or arbitral tribunal, evidence of the causal link between the environmental damage and a particular conduct that violates international law must be provided, according to the relevant standards of proof and rules of procedure. This task may be difficult to accomplish, as the case of the Eritrea-Ethiopia Claim Commission suggests. The Commission dismissed Ethiopia’s claims for environmental damage, inter alia, for “lack of supporting evidence” and for Ethiopia’s failure to exclude the possible contribution of its military or civilians to the environmental damage claimed.Footnote 99
The UNCC Governing Council adopted a flexible approach in terms of admission of evidence and its evaluation, as it required that claims “must be supported by documentary and other appropriate evidence sufficient to demonstrate the circumstances and the amount of the claimed loss”,Footnote 100 without specifying any standard of proof. According to the “Provisional Rules for Claims Procedure” formulated by the Governing Council, it was up to each Panel to determine “the admissibility, relevance, materiality and weight of any documents and any other evidence submitted”.Footnote 101 For instance, with regard to claims for the monitoring and assessment of environmental damage (i.e. First Instalment Claims), the Panel maintained that conclusive proof of causation was not “a prerequisite for a monitoring and assessment activity to be compensable”.Footnote 102 It is not argued here that the F4 Panel awarded compensation for damage that was speculative or without a documented link to the invasion and occupation of Kuwait. In different instances the Panel rejected the claims because of insufficient proof of damage or causation.Footnote 103 The point is that the more flexible evidentiary requirements reflect the sui generis, or exceptional nature of the UNCC.
A further problem with state responsibility for environmental damage concerns the nature of remedies. Whilst restitutio in integrum may be impossible in most of the cases, compensation requires calculation and monetarization of the damage, which may prove difficult for losses that go beyond clean-up costs and the devaluation of property. The UNCC had to confront this issue when Iraq claimed that only “financially assessable damage”Footnote 104 to natural resources could be compensated, meaning only losses to natural resources traded in markets.Footnote 105 The UNCC refused such an interpretation and held that the “financially assessable” requirement in the law of state responsibility does not exclude compensation of “pure environmental damage”.Footnote 106
In order to quantify the compensation for “pure environmental damage”, in most of the cases the F4 Panel relied on the Habitat Equivalency Analysis [HEA] to estimate the loss of ecological services from the damaged natural resources. Pursuant to this method, the assessment of the damage is done on the basis of the cost of environmental projects to replace ecological services that were provided in the past and that cannot be provided any more due to the irremediable damage to the natural resources.Footnote 107 Whilst the recognition that “pure environmental damage” (e.g. loss in biodiversity) can be compensated is a welcome development, the F4 Panel acknowledged that attributing an economic value to non-traded natural resources is a difficult exercise.Footnote 108 Likewise, in a recent case, the ICJ maintained that a certain degree of flexibility and approximation is necessary to evaluate in economic terms environmental damage,Footnote 109 and rather than attributing values to specific categories of environmental goods and services, it decided to adopt an “overall assessment of the impairment or loss of environmental goods and services prior to recovery”.Footnote 110
Eventually, a closer look at the UNCC’s practice suggests that a departure from a strict reading of the law of state responsibility, particularly on causation and remedies, was essential to ensure compensation for certain categories of conflict-related environmental damage. Undoubtedly, the exceptional institutional nature of the UNCC (not bound by rigid rules of procedure and evidence, as a judicial body) and its political and historical origins helped to achieve this result.
C. Problems with the Enforcement of International Liability and the Spectre of “Victor’s Justice”
Even if all requirements in the law of state responsibility are satisfied, reparation orders need to be enforced and money collected. And here we face what has been called “the eternal problem of scarce credibility of international law in the matters of the guarantees, or better, the sanctions”.Footnote 111 For the UNCC to be replicated in other contexts, the compensating country “must have some form of wealth that has a high degree of liquidity, that was not destroyed during the conflict, that is easily accessible to the UN, and that is not privately owned”.Footnote 112 In the case of Iraq these conditions were exceptionally met. The financial resources for compensation were made available from the country’s oil revenues;Footnote 113 further, a fundamental condition for the establishment of the UNCC was Iraq’s acceptance of its liability for all damage caused by the illegal invasion of Kuwait, as spelled out in the UNSC Resolution. As such, Resolution 687 stated that “upon notification by Iraq to the Secretary General and to the Security Council of its acceptance of the provisions above, a formal cease-fire is effective between Iraq and Kuwait and the member States cooperating with Kuwait in accordance with resolution 678 (1990)”.Footnote 114 The ceasefire was thus subordinated to Iraq’s consent to the terms and conditions set forth in Resolution 687.
As noted in the literature, this aspect places the UNCC within the long tradition of international claims institutions established in the aftermath of international armed conflict, which generally excluded claims from citizens of the defeated party.Footnote 115 Likewise, Iraq was held liable not only for the injuries (including environmental losses) caused by its troops to Kuwait and other neighbouring countries, but also for those caused by the Coalition Forces. In contrast, environmental damage inflicted by the Coalition Forces through the bombing of power stations, oil refineries, and chemical plants in Iraq was not addressed.Footnote 116
Hence, criticisms have been made of the reparation regime created by the UNSC, labelled as “victor’s justice” and “punitive peace”.Footnote 117 In more general terms, drawing from the experience of the Gulf War, commentators claim that, when it comes to implementing the standards of environmental protection in a particular situation, the result is often influenced by power dynamics and realpolitik considerations, and enforcement is generally limited to the defeated party.Footnote 118 Among others, Richard Falk has strongly criticized the “arbitrary and ad hoc pattern of enforcement” of environmental protection in wartime.Footnote 119 The scholar compares the case of Iraq with the reaction of the international community vis-à-vis the environmental consequences of the Vietnam War and the NATO intervention in the former Yugoslavia, and concludes that “an impression of double standards is unavoidable”.Footnote 120
The following quote by Michael Schmitt raises concerns as to the capacity of international institutions to deter conflict-related environmental damage, if they are subordinated to the victor-defeated narrative. He cynically observes that
[e]ven if reparations were widely imposed, it is unlikely that they would be an effective deterrent to environmental destruction. States that resort to armed force are unlikely to decide to forgo an act because of the pecuniary risk, for the risk only becomes a reality if the state suffers a military defeat. The desire to avoid possible defeat would certainly outweigh any deterrent effect generated by the possibility that the loser might have to make reparations. After all, in the vast majority of cases, the likelihood of defeat will exceed the likelihood of having to pay reparations; states sometime lose without having to pay, but they never make reparations without having lost.Footnote 121
Whether the UNCC should be seen as a successful accountability storyFootnote 122 or biased justice, some considerations ensue from the enforcement of liability against Iraq. History shows that liability for damage caused by military operations is intertwined with political considerations, and is inevitably influenced by the results of the conflict, thus enforcement often results in unfair and partial responses to the consequences of war, including the adverse environmental consequences. This brings to the fore the tension between the international recognition of environmental protection as a “global goal” or “common concern of mankind”Footnote 123 and a partisan approach to environmental reparation, or an approach that differentiates between winners and losers. On the one hand, if environmental protection is made dependent upon the victor-defeated narrative, the importance assigned to the environment in the post-conflict phase is attached to who the victor is and how important the environment is for the victor. On the other hand, peace and conflict studies indicate that the environment should be a central component of post-conflict recovery and the transition to peace, and that when environmental degradation caused by warfare is not redressed, it may lead to further grievances, insecurity, and violence.Footnote 124
Building on these arguments, some hard questions arise. What are the implications of leaving the environment of the defeated party out of the remediation efforts? Considering the problems with the enforcement of international obligations, how helpful would be the idea of requiring belligerent states to clean up and restore the environment, even when they formally complied with the jus ad bellum and the jus in bello? Should a broader notion of international assistance or solidarity be embraced where common/global values are affected? Whilst answering these questions would prove difficult, and perhaps lie beyond the scope of this paper, they draw attention to some of the problems associated with biased responses to the environmental impact of armed conflict, of the kind implemented in Iraq. They also invite us to expand our thinking about the complex nature of the environmental problems considered here and the limitations of current approaches.
IV. CONCLUDING REMARKS
This paper questioned the legacy of the UNCC as an institutional response to establish accountability for conflict-related environmental damage. It drew attention to three critical dimensions of the UNCC’s practice: the legal basis for the international liability of Iraq and the applicable framework; the departure from a strict reading of the law of state responsibility (particularly in terms of causation and remedies); and the biased/partial enforcement of liability for conflict-related environmental damage. I claimed that exceptionality has been an essential feature of the UNCC’s work, from its creation to the successful enforcement of environmental awards. At the same time, it is precisely the exceptional application of international rules and principles that makes the precedent of the UNCC problematic. Yet, it seems impossible to separate what is often hailed as a “success story” from its unique political nature and institutional framework. As we move forward, more research is needed so that future approaches to environmental damage would be less driven by this “logic of exception”. In particular, more attention should be given to the dynamics of contemporary armed conflict, including the actors involved, and how these dynamics influence legal responses. It is evident that, in times when wars are no longer fought by the regular forces of two or more states, but by “loose and fluid networks of state and non-state actors that cross borders”,Footnote 125 the model of the UNCC, which follows a state-centric approach to reparation, may be of limited value. In exploring more creative approaches, it may also be good to expand our understanding of the nature of conflict-related environmental harms and why it is important that those wrongs are redressed in the post-conflict phase. Environmental losses or injuries cannot always be repaired or financially assessed, and the time lapse between the ecological harm and its human effects makes its victims less visible. The “slow violence” of conflict-related environmental issues, however, is not less harmful than other forms of violence.Footnote 126 It aggravates the vulnerability of ecosystems on which, as humans, we depend, and of individuals who are already at the margins of society (notably, peoples in war-torn countries in the Global South), and may fuel grievances that, in turn, could result in further conflict. Perhaps it is time to take a broader perspective and rethink how the discipline of international law treats environmental matters in times of peace and war.