War's Unwitting Victim
The effects of war on the environment, whether as an unintentional byproduct of conventional warfare or a deliberate act to gain strategic advantage, are both catastrophic and well-catalogued. In 146 B.C., the Romans salted the fields of Carthage to make the land useless for agricultural production. The United States’ use of atomic bombs on the Japanese cities of Hiroshima and Nagasaki at the end of World War II produced widespread environmental devastation and exposed the environment to high levels of radiation. In the Vietnam War, the United States employed substances such as Agent Orange, which resulted in deforestation.
The growth of the environmental movement in the late 1960s and early 1970s expanded public consciousness of the environmental effects of warfare. Despite this new awareness, war has continued to have disastrous effects on the environment.
In 1991, Iraq, under the control of Saddam Hussein, invaded neighboring Kuwait, beginning the Persian Gulf War and a series of environmental catastrophes. Iraq pumped up to four million barrels of oil into the Persian Gulf. It 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 has been estimated at $79 billion.
There is concern that the Iraq War, commenced in 2003, 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 by US forces could result in widespread environmental contamination. At the beginning of the Iraq War, a group of lawyers and scholars from fiftyone nations sent a letter to the UN, warning of the possibility of “massive . . . environmental destruction.” Former UN Chief Weapons Inspector Hans Blix said of the impending Iraq War: “To me, the question of the environment is more ominous than that of peace and war.”
Although there are many international law mechanisms that govern the conduct of war, such as the Hague Convention and Geneva Convention, there exists a gap between the growing international concern for the environment and the mechanisms that can actually curtail environmental damage caused by war. The gap exists for practical reasons, such as the lack of clearly defined violations and methods of enforcement, as well as political reasons, such as the reluctance of some nations to consent to jurisdiction of international courts.
Closing this gap requires the development of a mechanism that clearly defines wartime environmental damage and has the ability to enforce its judgments, both to offer civil compensation to rehabilitate the environment after war and to serve as a deterrent from future unnecessary environmental degradation.
A model for such a civil enforcement mechanism is the United Nations Compensation Commission (UNCC), which was established by the UN to compensate victims of the 1991 Persian Gulf War. The UNCC is not a court but rather an administrative body that processes claims and determines proper payment amounts from its fund. The UNCC represents a novel and potentially powerful tool for civil liability, because unlike other international courts, the UNCC can operate without consent from the sanctioned party. As such, the UNCC could be adapted to future conflicts to recoup the cost of environmental damage and create a deterrent to any environmentally destructive action because of potential civil liability.
There has been extensive critical commentary in this area, discussing the strengths and weaknesses of the UNCC as a mechanism for civil compensation for wartime environmental damage. In order to address the weaknesses and adapt the UNCC for long-term use as an enforcement mechanism for civil liability for wartime environmental damage, several changes to the body must be implemented.
First, the priority of environmental damage claims must be increased, as processing priority for environmental damage claims was among the lowest in the current UNCC. Next, the UNCC must become a permanently funded body. It is currently funded by the seized wealth of the sanctioned nation. The funding, therefore, can be interrupted if the sanctioned nation is uncooperative. Further, the UNCC must establish a clear definition of environmental damage that is sufficiently broad to ensure that everyone who experiences environmental loss will be compensated. Finally, following a war, claimants should have a longer period of time for submitting claims for environmental damage than is currently available under the UNCC. Often, environmental damage is latent and requires a long period of time to become apparent. Extending the time to submit claims will help ensure that all deserving claimants are compensated.
The documented and potential damage to Iraq’s environment as a result of the Iraq War is widespread and hard to dispute. Given the grim financial situation in Iraq and the low priority often given to environmental damage, it is likely there will not be adequate funding for environmental rehabilitation in postwar Iraq. Holding Coalition nations civilly liable through an adapted UNCC will force the wealthier nations who engaged in military activity—without the imprimatur of the UN—that resulted in environmental degradation to repay Iraqi citizens for that damage.
—Keith P. McManus ’06
This article is adapted from Civil Liability for Wartime Environmental Damage: Adapting the United Nations Compensation Commission for the Iraq War, 33 B.C. Env. Aff. L. Rev. 417 (2006).