Green War: An Assessment of the Environmental Law of International Armed Conflict

Schmitt, Michael N.

doi:10.1007/978-90-6704-740-1_8

Michael N. Schmitt²

1796 Accesses
3 Citations

Abstract

During the First Gulf War of 1990–1991, Iraqi forces engaged in activities, including dumping oil into the Persian Gulf and igniting Kuwaiti oil wells, which drew global attention to the environmental consequences of warfare. This chapter identifies and assesses the international legal regime governing the environmental impact of armed conflict. It begins with an examination of the historical record of environmental damage during warfare. The prescriptive norms—including peacetime, customary and treaty prescriptions—governing such damage are next catalogued and analyzed. Concluding that the existing law fails to adequately address environmental consequences that result from hostilities, the author suggests how the international community should respond to its shortcomings.

Victory smiles upon those who anticipate the changes in the character of war, not upon those who wait to adapt themselves after they occur.

Previously published in 22 Yale Journal of International Law 1 (1997)

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Notes

1.
Office of Air Force History 1983 (quotation attributed to Air Marshall Guilio Douhet)
2.
For an interesting discussion of what constitutes a “revolution in military affairs,” see Krepinievich 1995. Throughout this chapter, the terms “armed conflict” and “war” will be used interchangeably. Some scholars draw a distinction between the two, reserving the term “war” for those situations in which a formal declaration has been made. This distinction serves little purpose given the scope and scale of post-World War II conflicts and the lack of a declaration of war in the vast majority of them.
3.
For a basic description of MOOTW, see Joint Chiefs of Staff 1995a, ch. V.
4.
Information warfare has generated a flurry of activity in the Department of Defense. For an introduction to the subject, see Libiclo 1995, at 1; see also Joint Chiefs of Staff 1995b.
5.
I first addressed this topic in tentative form in a comment. See Schmitt 1996. Though parts of this chapter draw directly on the previous piece, it builds on my initial thoughts and expands the focus of consideration beyond core jus in bello substantive prescriptions.
6.
This contextuality is apparent in the growing willingness of the international community to subordinate sovereignty to humanitarian interests in the post-Cold War, post-bipolar environment. The humanitarian operations in Somalia, Iraq, or Bosnia would not have been possible had the Cold War continued. On contextuality and the use of force, see Schmitt 1994, pp. 110–115.
7.
An excellent example of this evolution of law is the erosion of neutral (as opposed to belligerent) interests in the law of naval warfare. The erosion has resulted from both technological advances in the means of warfare and the increasing interdependency of the international economy.
8.
See infra Sect. 8.3.3.3 (discussing Protocol 1). For example, proportionality is a classic law of war principle intended to be codified in Protocol 1. See Protocol Additional to the Geneva Conventions Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, U.N. Doc. A/32/144, 16 I.L.M. 1391 [hereinafter Protocol I]. Thus, its customary law meaning can be invoked in exploring the Protocol I restatement of the concept. On the other hand, the United States has not ratified Protocol I, but considers many of its provisions to be declarative of customary international law. See infra note 318 and accompanying text. Therefore, it remains a useful source for clarification of customary law principles. Furthermore, conventions are often drafted narrowly. Consider the Protocol I prohibitions on attacking dams, dikes, and nuclear power generating stations. See Protocol I, supra, article 56. Its drafters debated whether this list is illustrative or exhaustive, ultimately deciding on the latter. However, this does not mean that other types of targets are fair game in article 56 situations. Customary principles such as proportionality and necessity will continue to govern such attacks. Moreover, the various types of law may intersect in terms of quantum of damage or nature of the target. This is particularly true in the environmental context, for some of the relevant conventional law has been criticized as setting an excessively high threshold for damage before a proscription applies. Protocol I is an excellent example. See infra note 353 and accompanying text.
9.
Many of these treaties bear on the relationship between war and the environment because they limit or prohibit environmentally destructive weapons. See, e.g., Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, article IV, 18 U.S.T. 2410, 610 U.N.T.S. 205 (banning placement in orbit of nuclear weapons or weapons of mass destruction); Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space and Under Water, Aug. 5, 1963, article 1, 14 U.S.T. 1313, 480 U.N.T.S. 43; Antarctic Treaty, June 23, 1961, article I, para I, 12 U.S.T. 794, 402 U.N.T.S. 71 (prohibiting any weapons testing in Antarctica).
10.
The distinction between international and noninternational armed conflicts is not always clear. Protocol II Additional to the Geneva Conventions defines noninternational armed conflict “as armed conflicts… which take place in the territory of a [party to the Convention] between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations”. Additional Protocol II, article 1, para 1, U.N. Doc. A/32/144, Annex 11 (1977), reprinted in 16 I.L.M. 1442, 1443 [hereinafter Protocol II]. International armed conflict is that which arises between states (or other subjects of international law). See, e.g., Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, article 2, 6 U.S.T. 3114, 75 U.N.T.S. 31 (“[T]he present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if a state of war is not recognized by one of them.”); Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, Aug. 12, 1949, article 2, 6 U.S.T. 3217, 75 U.N.T.S. 85 (same); Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, article 2, 6 U.S.T. 3316, 75 U.N.T.S. 135 (same); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, article 2, 6 U.S.T. 3516, 75 U.N.T.S. 287 (same) [hereinafter Geneva Convention IV]. Additional Protocol I, which supplements the Geneva Conventions with regard to international armed conflict, simply refers back to the common article 2 of the Geneva Conventions. See Protocol I, supra note 8, article 1, para 3. In a somewhat controversial provision, Protocol I includes as international armed conflicts “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination.” Id. article 1, para 4. Note that “internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature” are not armed conflict—either international or non-international. See Protocol II, supra, article 1, para 2.
11.
Article 2(4) of the U.N. Charter provides that “[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” U.N. Charter article 2, para 4. The Charter does authorize the use of force when pursuant to a Security Council determination that it is “necessary to maintain or restore international peace and security,” id. article 42, or required in individual or collective self-defense, see id. article 51.
12.
For instance, the question is not whether the Iraqis violated the law of armed conflict, but rather what law governs the types of activities in which they engaged.
13.
The most notable example is Wil Verwey, Chairman of the National University of Groningen (Netherlands) Department of International and Constitutional Law. See, e.g., Verwey 1994, p. 49; Verwey 1995a, pp. 39–40; Verwey 1995b. The latter paper and all others presented at the Symposium on the Protection of the Environment During Armed Conflict and Operations Other Than War, were published in Grunawalt et al. 1996 [hereinafter NWC Symposium Papers 2005].
14.
For an interesting discussion of these two approaches, see Drucker 1989, pp. 136–140.
15.
Peacetime international environmental law is much more politicized. For instance, lesser developed states often oppose constraints on industrialization that might retard development. See infra note 215 and accompanying text.
16.
An extensive discussion of the history of the environmental effects of warfare can be found in Westing 1980. In particular, refer to Table 1.2, which gives a selection of “ecologically disruptive wars.” Id. at 14–19 tbl.1.2.
17.
The foregoing events are described in many sources. Of particular note is their inclusion in the ICRC Commentary to article 56 of Protocol I. See International Comm. of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, at 667 (Yves Sandoz et al. 1987) [hereinafter ICRC Commentary]. The raid on the Mohne dam was poignantly described by Wing Commander Guy Penrose Gibson of the RAF:

As Gibson flew his Lancaster up and down the dam, he saw the water of the dammed lake rising “like stirred porridge in the moonlight, rushing through a great breach.” A few minutes later, he reported: “The valley was beginning to fill with fog and… we saw cars speeding along the roads in front of this great wave of water which was chasing them… I saw their headlights burning and I saw water overtake them, wave by wave, and then the color of the headlights underneath the water changing from light blue to green, from green to dark purple until there was no longer anything except the water bouncing up and down.”

McCullough 1966, at 418.
18.
See Roberts 1996, manuscript at 5 (citing Cruitwell 1934, at 297–298).
19.
One eyewitness of the explosion in Hiroshima described the destruction:

Within a few seconds the thousands of people in the streets and the gardens in the center of the town were scorched by a wave of searing heat. Many were killed instantly, others lay writhing on the ground, screaming in agony from the intolerable pain of their burns. Everything standing upright in the way of the blast, walls, houses, factories, and other buildings, was annihilated… Horses, dogs, and cattle suffered the same fate as human beings. Every living thing was petrified in an attitude of indescribable suffering. Even the vegetation did not escape. Trees went up in flames, the rice plants lost their greenness, the grass burned on the ground.

McCullough 1966, at 616.
20.
See Best 1988, pp. 18–20.
21.
Probably the best account of the war’s environmental impact is in Westing 1976.
22.
Perhaps the best known of the attempted remedies was the failed Strategic Hamlet Program, an effort to deny the enemy sanctuary in villages throughout the South by securing the allegiance of the local villagers. Ultimately, this effort failed, in no small part due to the corruption and lack of commitment of the United States’ South Vietnamese allies. An interesting description of the counterinsurgency effort in South Vietnam from the perspective of senior South Vietnamese officers can be found in Vien and Khuyen 1980, pp. 1–84.
23.
See Westing 1976, at 27. Three types of herbicides were used: Agents Orange and White operated to interfere with plant metabolism, while Agent Blue dehydrated plants. The agents were generally dispersed from the air by C-123 aircraft. However, helicopters and even truck-and boat-mounted sprayers were also used. See id. at 24–27.
24.
Approximately 2% of Indochina was sprayed, though most such operations were limited to South Vietnam. In the South, the bulk of the defoliation efforts were centered in Military Region Ill, which surrounded Saigon. Some 30% of this area was sprayed at least once. See id. at 28.
25.
See Carruthers 1993, p. 40. Arthur Westing points out that the spraying affected not only the autotrophic aspect of the ecosystem, but also the heterotrophic links (i.e., those beyond the first link in the food chain). In great part, this occurred because much animal activity takes place in the upper reaches of vegetation, which were most severely affected by the spraying. See Westing 1976, at 32. Westing describes the destruction resulting from the spraying, see id. at 28–40, and from the plowing, see id. at 47–49. He also gives a general discussion of the overall damage. See id. at 63–82.
26.
On March 20, 1974, the Department of Defense conducted a top secret briefing before a Senate Subcommittee in which the Department described the program. This briefing, since declassified, is reprinted in Environmental Modification Treaty: Hearings on the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques Before the Senate Comm. on Foreign Relations, 95th Congo 101 (1978) [hereinafter TS Brief].
27.
See id. at 102.
28.
Although this intent was not described in the TS Brief, it was noted by Seymour Hersch. He cited an unidentified U.S. government source as stating that a method of treating clouds with an acid chemical that would foil the operation of North Vietnamese radars had been developed. Other purposes of the rainmaking included, according to the Hersch report, providing “cover for infiltration of South Vietnamese commando and intelligence teams”; “serving as a ‘spoiler’ for North Vietnamese attacks and raids”; “altering or tailoring the rain patterns over North Vietnam and Laos to aid United States bombing missions”; and “diverting North Vietnamese men and material from military operations to keep muddied roads and lines of communication in operation.” Hersch 1972, at A1.
29.
The Air Force asserted that rainfall increased by 30% in some locations, see TS Brief, supra note 26, at 115, but admitted that “[w]hile this program had an effect on the primitive road conditions in these areas, the results were certainly limited and unverifiable.” Id. at 120. Arthur Westing noted that “[a]lthough the military seemed satisfied with the level of success of its weather-modification operations in Indochina, a dispassionate arbiter would be hard put to recognize a basis for this optimism.” Westing 1976, at 56 (citation omitted).
30.
See Aldrich 1991, p. 14.
31.
For instance, the use of Agent Orange continued to be characterized as an issue of primarily tort, rather than environmental, law. This point was noted in the U.S. Army’s post-Desert Storm/Shield legal report. See Legal Serv. Agency, U.S. Army, the Desert Storm Assessment Team’s Report to the Judge Advocate General of the Army pt. G, at 1 (1992) [hereinafter Army Assessment].
32.
S. Res. 71, 93d Congo (1973).
33.
Id.
34.
See Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, Dec. 10, 1976, 31 U.S.T. 333, 1108 U.N.T.S. 152 [hereinafter ENMOD].
35.
See Proposed International Convention on the Crime of Ecocide, reprinted in Falk 1973, app. I at 93–95 [hereinafter Proposed International Convention on the Crime of Ecocide].
36.
Id. article I, at 93.
37.
See id. article 2, at 93.
38.
See id. article 4, at 93.
39.
See id. article 6, at 93–94.
40.
See id. article 9, at 94.
41.
“The Security Council shall determine the existence of any threat to the peace, breach of peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.” U.N. Charter article 39. “The Security Council may decide what measures not involving the use of force are to be employed to give effect to its decisions…” Id. article 41. “Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proven to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.” Id. article 42.
42.
Draft Protocol on Environmental Warfare, reprinted in Falk 1973, app. 11 at 95–96 [hereinafter Draft Protocol on Environmental Warfare].
43.
Id. at 95.
44.
Id.
45.
See id. For Professor Falk’s views on ecocide and environmental warfare (as well as reprints of both proposed documents). See Falk 1976; see also Falk 1973.
46.
ENMOD, supra note 34, article I, para 1.
47.
Protocol I, supra note 8; Protocol II, supra note 10.
48.
Protocol I, supra note 8, article 35, para 3.
49.
Id. article 55.
50.
For articles bearing on the debate over ratification, see Aldrich 1986, 1991; Bagley 1989; Gasser 1987; Matheson 1987; Roberts 1985; Schmidt 1984; Sofaer 1988.
51.
In 1984 alone, over two million tons of oil were spilled into the Gulf. See Antoine 1992, at 517, 530. Mr. Antoine asserts that the damage caused during the tanker war rose to the level of “widespread, long-term and severe,” though neither Iran nor Iraq was party to Protocol I. See id.
52.
See 29 Kessing’s Contemp. Archives 32, 594–595 (1983); see also Okorodudu-Fubara 1991, 129–131; Walker 1996, manuscript at 2–3.
53.
On September 23, 1990, the Iraqis released a statement following the joint meeting of the Iraqi Revolution Command Council and the regional command of the Arab Socialist Baath Party, chaired by Saddam Hussein. It proclaimed:

The oil, its areas, and Israel will be transformed into something different from what they are now. Thus will be the deluge… The oil areas in Saudi Arabia and in other parts of the states of the region and all the oil installations will be rendered incapable of responding to the needs of those who came to us as occupiers in order to usurp our sovereignty, dignity and wealth.

Partial Text of Statement by Iraq’s Revolution Command Council, Reuters, Sept. 23, 1990, available in LEXIS, News Library, Allnws File; see also Boustany 1990, at A1.
54.
Young 1990.
55.
Arkin 1996 (manuscript at 6, on file with The Yale Journal of International Law).
56.
King Hussein warned of an “environmental catastrophe.” Gulf War Threatens Environment, Jordan King Warns 1990, at A2.
57.
Scientists Warn of Environmental Disaster from a Gulf War 1991; see also Experts Warn of Global Fallout from Warfare: Environment; Scientists Say that Smoke from Blazing Kuwait Oil Fields Could Affect the Climate 1991, at A8.
58.
Roberts 1996, manuscript at 31.
59.
In his words, “[n]ew environmental threats and public environmental concerns strengthened the case for having a clear statement about how environmental destruction ran counter to older as well as newer agreements on the laws of war.” Id. at 33. Along these lines, Professor Roberts made a very good point:

The failure to prevent damage to the environment in the 1991 Gulf War was in marked contrast to a degree of success in preventing the conflict from getting out of hand in some other respects: many hostages, seized in the early weeks of the Iraqi occupation of Kuwait, were released before war broke out; Iraq was kept isolated; the war was kept within geographical limits and was brought to a swift conclusion; and gas, bacteriological and nuclear weapons were not used. Why was there so conspicuous a failure over matters relating to the environment?

Id. at 4.
60.
Text of Bush Letter to Saddam Hussein, UPI, Jan. 12, 1991, available in LEXIS, News Library, UPI File. Additionally, destruction of the Kuwaiti oil resources was one of the three “unconscionable acts” for which the Iraqi leadership would be held personally responsible—the others being use of chemical/biological weapons and terrorism. See Arkin 1996, manuscript at 2–3 (citing National Security Directive (NSD) 54, Jan. 15, 1991). NSD 54 remains classified, but is described generally in Simpson 1995, 947. NSD 54 authorized offensive operations against Iraqi forces. Id.
61.
ICRC 1990, reprinted in Int’l Rev. Red Cross, Jan.–Feb. 1991 [hereinafter ICRC Note Verbale].
62.
S.C. Res. 678, U.N. SCOR, 45th Sess., 2963d mtg., U.N. Doc. S/RES/678 (1990). On this resolution, see Weston 1991.
63.
S.C. Res. 660, U.N. SCOR, 45th Sess., 2932d mtg., U.N. Doc. S/RES/660 (1990).
64.
See S.C. Res. 678, supra note 62, para 2.
65.
See ICRC Note Verbale, supra note 61, at 22–26.
66.
ICRC, Appeal (Jan. 17, 1991), reprinted in Int’l Rev. Red Cross, Jan.–Feb. 1991, at 26.
67.
ICRC, Appeal (Feb. 1, 1991), reprinted in Int’l Rev. Red Cross, Jan.–Feb. 1991, at 27.
68.
See Ford 1991, at 1.
69.
See U.S. Dep’t of Defense, Conduct of the Persian Gulf War: Final Report to Congress, at O-26 (1992) [hereinafter DOD Report]. A Greenpeace study cites similar figures, but notes that smaller quantities of oil continued to leak into the Gulf until May or early June of 1991. See Arkin et al. 1991, pp. 63–64. The size of the spill also is discussed in Kuwait Env’t Protection Council 1991, pp. 29–33.
70.
See Sharp 1992, p. 41.
71.
See Arkin 1996, manuscript at 7–8. Mr. Arkin has noted: “What the public heard during the war was that around 19 January, Iraq opened valves at the Sea Island terminal, pumping oil directly into the Gulf.” Id. at 8. In fact, the Coalition contribution to the spill was reported. For instance, on February 21, 1991, the Associated Press reported that Coalition bombing missions may have been responsible for 30% of the oil spilled. See Marris 1991, at 2.
72.
See Arkin 1996, manuscript at 6–7.
73.
See DOD Report, supra note 69, at O-26. Estimates of the number of wells damaged or destroyed by the Iraqis differ. Walter Sharp reports the figure as 732, with 650 catching fire. See Sharp 1992, at 40–41. The Kuwaiti government reported that, after February 28, 1991, 613 wells were set on fire, 76 were gushing, and 99 were damaged. See Kuwait Env’t Protection Council 1991, at 1 and Fig. 2.
74.
See EarIe 1992, at 122.
75.
See Roberts 1992, at 538, 549.
76.
See Moore 1992, p. 80.
77.
The United Nations Environment Programme (UNEP) reported in May 1992 that the oil well fires did not affect the global climate and that the pollution they caused was not severe enough to result in major human health problems. See State of the Environment: Updated Scientific Report on the Environmental Effects of the Conflict Between Iraq and Kuwait, Governing Council of the U.N. Environment Programme, 17th Sess., at 12–13, U.N. Doc. UNEP/GC.17/Inf.9 (1993).
78.
On the impact of the spills generally, see Report on the UN Inter-Agency Plan of Action for the ROPME Region, U.N. Environment Programme, Oct. 12, 1991 [hereinafter UNEP Report], reprinted in Weller 1991, 339.
79.
See DOD Report, supra note 69, at O-27.
80.
See id.
81.
Address Before a Joint Session of the Congress on the State of the Union, 1 Pub. Papers 74, 79 (1991). Some have suggested that a possible motive was “ecological terrorism in retaliation for the bombing. See, e.g., McFadden 1991, at 4. A more remote possibility is that the motive was economic: Iraq hoped to devastate a competitor, drive up the price of oil, or create an incentive for the removal of sanctions on its own oil exports.
82.
See DOD Report, supra note 69, at O-27.
83.
See id. Iraq also damaged all 26 gathering centers used to separate oil, gas, and water. This process is integral to oil production. Additionally, the Iraqis destroyed the wells’ technical specifications. See Sharp 1992, at 45. If the purpose was military, what would have justified such acts? One possibility is that the Iraqis wanted to prevent the use of the oil wells by the Coalition forces and Kuwait. However, the DOD Report has the better argument.
84.
See Arkin et al. 1991, at 141.
85.
See id.
86.
See id.
87.
See Kane 1992, at 42.
88.
For discussion of the customary international law concepts of military necessity and proportionality, see infra Sect. 8.3.2.
89.
See Horowitz 1992, at 1. The report noted that in the year following the war, more than 1250 civilians were killed or wounded by explosive ordnance and five demolition specialists had died. See id.
90.
For instance, in one case, a unit collected hazardous waste in barrels so as not to dump it improperly, but failed to mark the barrels. As a result, the contents had to be tested prior to disposal, an extremely costly and time-consuming process. See Army Assessment, supra note 31, pt. G, para 1, at 2.
91.
The Army Assessment noted that

[i]n general, there was an environmental awareness in the U.S. Army that caused us to consider the environmental consequences of military actions and kept us in concert with the law… This environmental awareness was carefully balanced against the often conflicting needs of waging war. In SWA [Southwest Asia], this translated to: Army policy is to adhere to United States environmental requirements if possible. As a result, environmental law issues were a SJA [Staff Judge Advocate] concern in theater as well as in the United States.

Id. pt. G, at 1–2. There were problems, however, with environmental issues during deployment. The Army Assessment noted that “[c]ommanders [wanted] to do the right thing, but [had] a low tolerance for the impractical.” Id. pt. G, para 3, at 3. Quoting an attorney from the Army’s Operations and Law Division, the Assessment provides a clear indication of the mindset:

Our attitude at the time was that, you know, we’ve got a deployment going on. To the extent that we can respect the environment, that’s fine, but it’s not our job… We’ve got other things to do and essentially, I don’t know if you call it what we did, ‘stonewalling,’ but essentially, the environmental issues, as far as we saw, went away for the long term.

Id. The Assessment characterized this statement not as “callousness to environmental concerns,” but instead as “the frustration of trying to deal with environmental laws drafted without regard for military necessity.” Id.
92.
See Terry 1992, pp. 61, 65.
93.
G.A. Res. 16/11, U.N. GAOR, 16th Sess., Supp. No. 25, at 48, U.N. Doc. A/46/25 (1992).
94.
Plant 1992a, pp. 43–61.
95.
Id. at 46.
96.
See The Gulf War: Environment as a Weapon 1991, 220 (remarks of Sebia Hawkins).
97.
The proceedings of the conference are published in Plant 1992b, at 65–150.
98.
See Gasser 1995, p. 639; see also infra Sect. 8.3.1.1.
99.
Terry 1992, at 65.
100.
See International Council of Envtl. Law 1991, at 1.
101.
Id. para 2.
102.
See id. para 10.
103.
Id. para 13(a).
104.
See id. para 13(b).
105.
See id. para 16.
106.
Protocol I, supra note 8, article 56, para 1.
107.
See infra Sect. 8.3.3.3.
108.
See International Council of Envtl. Law 1991, para 16.
109.
See id.
110.
Id.
111.
Id. para 18.
112.
See U.N. Charter article 39.
113.
See International Council of Envtl. Law 1991, para 17.
114.
Rio Declaration on Environment and Development, princ. 24, U.N. Doc. A/CONF. 151/Rev. 1 (1992) [hereinafter Rio Declaration], reprinted in 31 I.L.M. B74.
115.
See Note Verbale Dated 5 July 1991 from the Charge D’affaires of the Permanent Mission to Jordan to the United Nations Secretary General, U.N. GAOR, 46th Sess., Annex, para 2, U.N. Doc. A/46/141 (1991).
116.
See id. para 3.
117.
See Summary Record of the 18th Meeting, U.N. GAOR 6th Comm., 46th Sess., 18th mtg., at 3, U.N. Doc. A/C.6/46/SR.18 (1991).
118.
See Summary Record of the 19th Meeting, U.N. GAOR 6th Comm., 47th Sess., 19th mtg., at 5, U.N. Doc. A/C.6/47/SR.19 (1992).
119.
See id. at 8–9.
120.
S.C. Res. 687, U.N. SCOR, 45th Sess., 2981st mtg., para 16, U.N. Doc. S/RES/687 (1991).
121.
See infra Sect. 8.3.4.
122.
For discussion of the relevant sections of the Geneva Convention IV, see infra Sect. 8.3.3.2.
123.
See Summary Record of the 18th Meeting, supra note 117, at 2–12.
124.
See id. at 9.
125.
See id. at 2–12. On this and the issue of the basis for unlawfulness of the Iraqi actions, see Morris 1993, 777–779.
126.
The cancellation was required due to a dispute over the attendance of a Palestinian representative. See Verwey 1995a, at 12.
127.
See G.A. Res. 417, U.N. GAOR, 46th Sess., Supp. No. 49, at 319, U.N. Doc. A/46/49 (1991).
128.
See Protection of the Environment in Times of Armed Conflict: Report of the Secretary General, U.N. GAOR, 47th Sess., para 40, U.N. Doc. A/47/328 (1992) [hereinafter 1992 Secretary General Report].
129.
129. See id.
130.
Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 205 Consol. T.S. 277 [hereinafter Hague IV].
131.
Geneva Convention lV, supra note 10.
132.
Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, June 17, 1925, 26 U.S.T. 571, 14 I.L.M. 49 (1975) [hereinafter Gas Protocol]. The Gas Protocol entered into force for the United States in 1975.
133.
Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, Apr. 10, 1972, 26 U.S.T. 583, 11 I.L.M. 310 [hereinafter Biological Weapons Convention].
134.
Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed To Be Excessively Injurious or To Have Indiscriminate Effects, Oct. 10, 1980, 19 I.L.M. 1524 [hereinafter Conventional Weapons Convention]. The United States ratified this convention in March 1995. Interestingly, there has been relatively little attention paid to the Convention’s preamble: “[I]t is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.” Id. pmbl. In a reservation, France noted that the provision only applies to countries that have ratified Protocol I Additional, which contains identical language. Protocol III of the Conventional Weapons Convention governs incendiary weapons. See Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III), 19 I.L.M. 1534 (1980) [hereinafter Protocol III]. Its restrictions cover attacks on “forests or other kinds of plant cover… except when such natural elements are used to cover, conceal or camouflage combatants or other military objectives or are themselves military objectives.” Id. article 2, para 4. The United States did not ratify Protocol III. See discussion infra Sect. 8.3.3.3.
135.
Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, Jan. 13, 1993, 32 I.L.M. 800 [hereinafter Chemical Weapons Convention]. This convention was transmitted to the Senate in November 1993, but at the time this Essay [chapter] was written, had not yet been ratified. See http://www.un.org/Depts/Treaty.
136.
See 1992 Secretary General Report, supra note 128, para 56. The experts compared international environmental law with human rights law. As in the latter, certain provisions of the former were to be inapplicable during armed conflict. Nevertheless, the core provisions, analogized to “hard core” provisions in human rights law, remain in effect. See id. The participants recommended that any new treaty dealing with international environmental law specifically address the issue of applicability during armed conflict. See id.
137.
See id. para 43.
138.
Protection of the Environment in Times of Armed Conflict, Letter from the Permanent Missions of the Hashemite Kingdom of Jordon and of the United States of America to the Chairman of the Sixth Committee (Sept. 28, 1992), U.N. GAOR 6th Comm., 47th Sess., Agenda Item 136, U.N. Doc. A/C.6/47/3 (1992).
139.
See id. at 2–3.
140.
United Nations Decade of International Law: Report of the Secretary-General on the Protection of the Environment in Times of Armed Conflict, U.N. GAOR, 45th Sess., Provisional Agenda Item 144, paras 14–15, U.N. Doc. A/4S/269 (1993) [hereinafter 1993 Secretary General Report]. The Sixth Committee debates produced many suggestions for improving the legal regime. They addressed the need for harmonization of interpretation and clarification of the norms, the possibility of new law in the field, and potential improvements to the implementation and enforcement regimes, such as fact-finding committees or an international criminal court. See Summary Record of the 19th Meeting, supra note 118; Summary Record of the 9th Meeting, U.N. GAOR 6th Comm. 47th Sess., 9th mtg., U.N. Doc. A/C.6/47/SR.9 (1992); Summary Record of the 8th Meeting, U.N. GAOR 6th Comm., 47th Sess., Sth mtg., U.N. Doc. A/C.6/47/SR.S (1992).
141.
See 1993 Secretary General Report, supra note 140, para 15.
142.
See G.A. Res. 47/37, U.N. GAOR 6th Comm., 47th Sess., Agenda Item 136, U.N. Doc. A/RES/47/37 (1993).
143.
Id. at 2.
144.
See id. On the issues of military necessity and wantonness, see infra Sect. 8.3.2.1.
145.
McNeill 1993, p. 77.
146.
See Gasser 1995, at 640.
147.
See 1993 Secretary General Report, supra note 140.
148.
See G.A. Res. 48/30, U.N. GAOR, 48th Sess., at 2, U.N. Doc. A/RES/48/30 (1993). The draft resolutions are U.N. GAOR, 47th Sess., U.N. Doc. A/C.6/47/L.2 (1992); U.N. GAOR, 47th Sess., U.N. Doc. A/C.6/47/L.2/Rev. 1 (1992).
149.
See G.A. Res. 49/50, U.N. GAOR, 49th Sess., U.N. Doc. A/RES/49/50 (1995). The Guidelines are reprinted in U.N. GAOR, 49th Sess., Annex, Agenda Item 139, at 49–53, U.N. Doc. A/49/323 (1994) [hereinafter ICRC Guidelines]; Gasser 1995, at 641–643.
150.
ICRC Guidelines, supra note 149, para 1.
151.
As of November 30, 1996, there were 145 parties to Protocol I. See http://gvalnexl.icrc.org. Among the parties with whom the United States has close military ties are Australia, Canada, Egypt, Germany, Greece, Korea, and the Netherlands. The Russian Federation is also a party. See id.
152.
Convention Relative to the Laying of Automatic Submarine Contact Mines, 36 Stat. 2332 (1907) [hereinafter Hague VIII].
153.
Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 240 [hereinafter Convention for the Protection of Cultural Property], reprinted in Schindler and Toman 1988.
154.
For example: [T]he general principles of international law applicable in armed conflict—such as the principle of distinction and the principle of proportionality—provide protection to the environment. In particular, only military objectives may be attacked and no methods or means of warfare which cause excessive damage shall he employed. ICRC Guidelines, supra note 149, para 4.
155.
See id. para 5.
156.
The clause is named after the Russian representative who proposed it at the Hague Conference of 1899.
157.
ICRC Guidelines, supra note 149, para 7.
158.
See id. para 8 (citing Hague IV, supra note 130, article 23(g); Geneva Convention IV, supra note 10, articles 53, 147; Protocol I, supra note 8, articles 35, para 3, 55); see also infra Sect. 8.3.3.3.
159.
See ICRC Guidelines, supra note 149, para 9(a) (citing Conventional Weapons Convention, supra note 134; Protocol III, supra note 134).
160.
See id. para 9(h) (citing Protocol I, supra note 8, article 54).
161.
See id. para 9(d) (citing Convention for the Protection of Cultural Property, supra note 153; Protocol I, supra note 8, article 53).
162.
See id. para 9(c) (citing Protocol I, supra note 8, article 56). Note that the United States is opposed to this provision in Protocol I. See infra Sect. 8.3.3.3.
163.
The Guidelines state:

The indiscriminate laying of landmines is prohibited. The location of all pre-planned minefields must be recorded. Any unrecorded laying of remotely delivered, non-self neutralizing land mines is prohibited. Special rules limit the emplacement and use of naval mines.

ICRC Guidelines, supra note 149, para 10 (citing Conventional Weapons Convention, supra note 134, article 3; Protocol I, supra note 8, article 51, paras 4–5; Hague VIII, supra note 152).
164.
The ICRC Guidelines provide: “Care shall be taken in warfare to protect and preserve the natural environment. It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment and thereby prejudice the health or survival of the population”.
ICRC Guidelines, supra note 149, para 11. Note that the ICRC has elected to include the anthropocentrically based prescription found in article 55 of Protocol I, rather than the more heavily intrinsic value prohibition of article 35(3). For discussion of this distinction, see infra Sect. 8.3.3.3.
165.
See id. para 13 (citing Protocol I, supra note 8, article 55, para 2).
166.
Id. para 20.
167.
Id. para 20 (citing Geneva Convention IV, supra note 10, articles 146–147; Protocol I, supra note 8, articles 86–87).
168.
Federal Ministry of Defence of the F.R.G., Humanitarian Law in Armed Conflicts: Manual (1992) [hereinafter German Manual].
169.
Id. para 401.
170.
Id. para 403.
171.
International lnst. of Humanitarian Law, San Remo Manual on International Law Applicable to Armed Conflicts at Sea (Louise Doswald-Beck 1995) [hereinafter San Remo]. The group assembled to draft the manual included Professor Salah El-Din Amer, Louise Doswald-Beck, Vice Admiral (ret.) James H. Doyle, Jr., Commander William J. Fenrick, Christopher Greenwood, Professor Horace B. Robertson, Jr., Gert-Jan F. Van Hegelsom, and Dr. Wolff Heintschel von Heinegg.
172.
See United Nations Convention on the Law of the Sea, Dec. 10, 1982, U.N. Doc. A/CONF.62/122, 21 I.L.M. 1261 [hereinafter LOS Convention]. For instance, article 58(3) provides that “[i]n exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State.” Id. article 58, para 3.
173.
San Remo, supra note 171, para 44.
174.
On the applicability of Protocol I to naval warfare, see infra Sect. 8.3.3.3. At the meeting there was significant debate over whether to use a “due regard” or “respect for” standard. According to the Rapporteur, some of the participants wanted to use the latter to maximize protection of the environment. See San Remo, supra note 171, para 44.9. However, the “due regard” standard was eventually agreed upon because it was already in use in the LOS Convention and because it “more appropriately expressed the balance that must exist between the right of the States involved in naval conflict at sea to use lawful methods and means of warfare on the one hand, and the duty of such States to protect the marine environment on the other.” Id.
175.
See Department of the Air Force, International Law—The Conduct of Armed Conflict and Air Operations (pamphlet No. 110–131, 1976) [hereinafter AFP 110–131]; Department of the Army, the Law of Land Warfare (Field Manual 27-10, 1956) [hereinafter AFM 27-10].
176.
Department of the Navy 1989.
177.
Note that both the Marine Corps and the Coast Guard have agreed to the new manual’s use in a multiservice format.
178.
Department of the Navy, Commander’s Handbook on the Law of Naval Operations, para 8.13 (Naval Warfare Publication 1–14 M, 1996) [hereinafter NWP 1–14 M].
179.
See International & Operational Law Dep’t, U.S. Army, Operational Law Handbook (1995) [hereinafter Operational Law Handbook]. The Handbook provides:

Protecting the environment has become steadily more important during the past several decades. The international community is increasingly vigilant in its oversight of the environmental consequences of military operations…. Failure to comply with environmental law can jeopardize current and future operations, generate domestic and international criticism, produce costly litigation, and even result in personal liability of both the leader and the individual soldier.

Id. at 5-1.
180.
Id. at 5-4.
181.
This initiative is described in Fleck 1996 (manuscript at 7–8, on file with The Yale Journal of International Law).
182.
However, it was not the unanimous consensus; some participants called for new law. See id. at 5.
183.
AI-Khasaweh 1992, at 111 (statement of Hans-Peter Gasser).
184.
The matter was addressed in both the ICRC and Munich Conference reports, whose specific conclusions are nearly interchangeable. The ICRC experts opined that environmental law remained largely applicable during hostilities and that core environmental treaties needed to be analyzed to assess applicability. See 1992 Secretary General Report, supra note 128, para 56. The Munich Conference went slightly further by noting that environmental law remained in force as between belligerents and nonbelligerents, but that the rules concerning its effect vis-à-vis opposing belligerents needed to be clarified. See International Council of Envtl. Law 1991, para 6. The consensus view is that while some peacetime environmental law may certainly remain in effect during hostilities, no ready-made catalogue of applicable law exists, nor are the rules for applicability well defined.
185.
See Leibler 1992, pp. 69–70.
186.
See, e.g., International Convention for the Prevention of Pollution of the Sea by Oil, May 12, 1954, article 19, 12 U.S.T. 2989, 327 U.N.T.S. 3 (“In case of war or other hostilities [a party may] suspend the operation of the whole or any part of the present convention…”).
187.
In his excellent article, Anthony Leibler notes that “to the extent that these laws apply to the negligent or careless pollution, it is logical to assume that they must certainly apply to deliberate pollution.” Leibler 1992, at 70. While it may in fact be logical, such a conclusion does not hold as a matter of international law. As will be discussed below, the existence of a state of armed conflict has much play on the issue.
188.
128 N.E. 185 (N.Y.), cert. denied, 254 U.S. 643 (1920).
189.
Id. at 191.
190.
For an excellent discussion on which much of this analysis builds, see Delbrück 1982.
191.
For example, one prominent scholar has noted that “[a]s a rule, bilateral treaties are terminated or suspended by the outbreak of a war unless they were concluded with the war in mind. The effects of multilateral treaties are also suspended between the adversaries unless they were concluded specifically with a view to the state of war.” Bothe 1991, p. 59. He goes on to acknowledge, however, that “modern opinion… favors the non-suspension of certain types of obligations even between belligerents. It would appear that some basic rules relating to the environment might be counted among the latter obligations.” Id.
192.
See, e.g., Verwey 1995b, manuscript at 11.
193.
Vienna Convention on the Law of Treaties, May 23, 1969, article 73, 1155 U.N.T.S. 331, 8 I.L.M. 679 [hereinafter Vienna Convention]. The Vienna Convention came into force in 1980, but, as of the date of this Article [chapter], has not been ratified by the United States. Nevertheless, most of its provisions are declaratory of customary international law.
194.
For example, mutual safeguarding of straddling stocks of fish pursuant to article 63 of the Law of the Sea Convention benefits both sides by preserving a mutually important natural resource. See LOS Convention, supra note 172, article 63.
195.
See, e.g., General Act of the Berlin Conference Respecting the Congo, Feb. 26, 1885, 65 Consol. T.S. 485 (providing for freedom of navigation on Congo and Niger rivers); Convention Relating to the Non-fortification and Neutralization of the Aaland Islands, Oct. 20, 1921, 9 L.N.T.S. 211.
196.
See, e.g., International Convention for the Prevention of Pollution of the Sea by Oil, supra note 186 (permitting parties to suspend operation of treaty either in whole or in part in event of war or other hostilities).
197.
See, e.g., Convention on International Civil Aviation, Dec. 7, 1944, 61 Stat. 1180, 15 U.N.T.S. 295 (setting forth rules of air for nongovernmental aircraft).
198.
Consider the case of the Kuwait Regional Convention for Cooperation on the Protection of the Marine Environment from Pollution, Apr. 24, 1978, 17 I.L.M. 511. This treaty, to which Bahrain, Iran, Iraq, Kuwait, Oman, Qatar, Saudi Arabia, and the United Arab Emirates are parties, provided for the establishment of the Regional Organization for the Protection of the Marine Environment (ROPME), headquartered in Kuwait. ROPME continued to operate during the Gulf War, with the participation of both Kuwait and Iraq, even though its staff elements did leave Kuwait during the Iraqi occupation. Furthermore, the organization was instrumental in the post-hostilities cleanup effort.
199.
Vienna Convention, supra note 193, article 62, para 1. It is a contextual standard. Consider the Convention on International Trade in Endangered Species of Wild Fauna and Flora, July 1, 1975, 27 U.S.T. 1087, 12 I.L.M. 1085, an agreement which appears to have little relationship to armed conflict of the case of an extremely poor (failing) state engaged in an armed struggle for survival? If endangered species were one of the state’s few sources of funds, would that state be required to comply with the denunciation provisions set forth in the treaty, or would the conflict represent changed circumstances radically transforming the state’s obligations?
200.
See Vienna Convention, supra note 193, article 62, para 2.
201.
For instance, in the Treaty of Peace Between the United States and Great Britain, the United States is acknowledged to be a free state. The provision binds all the King’s successors. Treaty of Peace, Sept. 3, 1783, U.S.-Gr. Brit., article 2, 8 Stat. 80.
202.
On the grounds for invalidity of treaties, see Vienna Convention, supra note 193, articles 46–53.
203.
United Nations Conference on the Human Environment, Stockholm Declaration on the Human Environment, June 16, 1972, U.N. Doc. A/CONF.48/14 (1972), revised by U.N. Doc. A/CONF.48/14/Corr.l (1972), reprinted in 11 I.L.M. 1416 [hereinafter Stockholm Declaration]. The Declaration sets forth 26 guiding principles for crafting international environmental prescriptions. It asserts that there is a “fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being.”—Id. princ. 1. This right contains the corollary duty to “protect and preserve the environment for present and future generations.” Id. Other principles address such manners as the relationship between underdevelopment and the environment, and liability and compensation. See id. princs. 9, 22.
204.
United Nations Conference on the Human Environment, Action Plan for the Human Environment, U.N. Doc. A/CONF.48/14 (1972), reprinted in 11 I.L.M. 1421 (adopting 109 recommendations on such manners as management of global environment and environmental assessment).
205.
Stockholm Declaration, supra note 203, princ. 21.
206.
The conference sped establishment of the United Nations Environment Programme (UNEP). Created in 1973, UNEP is responsible for coordinating U.N. activities involving the environment. It is also charged with pursuing agreement on international environmental treaties such as the Vienna Convention for the Protection of the Ozone Layer, Mar. 22, 1985, T.I.A.S. No. 11,097, 26 I.L.M. 1529 [hereinafter Ozone Convention].
207.
Stephanie Simonds argues that principle 21 does not apply during warfare. See Simonds 1992, p. 192.
208.
Stockholm Declaration, supra note 203, princ. 26.
209.
See G.A. Res. 3717, U.N. GAOR, 37th Sess., Supp. No. 51, at 21, U.N. Doc. A/RES/3717; World Charter for Nature, U.N. Doc. A/37/L.4 & Add.l (1982). In the General Assembly vote, 17 nations abstained, while one, the United States, voted against the resolution. The U.S. vote was not based on the provisions concerning warfare. See 1981 U.N.Y.B. 1026.
210.
In the General Assembly resolution, those principles of conservation intended to serve as “the common standard by which all human conduct affecting nature is to be guided and judged” are set forth. World Charter for Nature, supra note 209, pmbI.
211.
The first four of these principles urge against disruption of the “essential processes” of nature, assert the need to safeguard habitats to prevent extinction, encourage protective regimes for unique areas, and argue for an ecosystem approach to maintenance of environmental well-being. Id. princs. 1–4.
212.
Id. princ. 5.
213.
Id. princ. 20.
214.
As might be expected, the Charter was a predominantly anthropocentric product. This is particularly apparent in the seven principles related to “responsibilities” of parties. For instance, the section begins with the statement that “[i]n the decision-making process it shall be recognized that man’s needs can be met only by ensuring the proper functioning of the natural systems.” Id. princ. 6. Similarly, in assessing whether to proceed with activities that pose a significant risk to nature, proponents are required to “demonstrate that expected benefits outweigh potential damage to nature.” Id. princ. 11(b). While not purely anthropocentric (because the risk calculation need not be measured in terms of the contribution nature’s damaged aspect makes to man), the mere fact that balancing occurs suggests an anthropocentric perspective.
215.
Principle 2 of the Rio Declaration provides:

States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

Rio Declaration, supra note 114, princ. 2 (emphasis added). The next two principles cement the theme: “The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.” Id. princ. 3. “In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.” Id. princ. 4.
216.
Id. princ. 24.
217.
Id. princ. 13.
218.
International Law Commission Draft Articles on State Responsibility, [1980] 2 Y.B. Int’l L. Comm’N 26, U.N. Doc. A/35/10. In 1947 the U.N. General Assembly established the ILC for the purpose of conducting international law research and drafting conventions. Its membership includes internationally recognized scholars and practitioners of international law.
219.
Id. article 19, para 3(d).
220.
Note that this article is referring to state crimes, not individual crimes under international law. Professor Greenwood has placed this in appropriate perspective:

Whether the Commission’s attempt to create a concept of State crimes separate from other breaches by states of their international obligations will prove acceptable and whether it will actually make any difference to the substantive law (as opposed to such issues as the standing to bring a claim) is debatable. What matters for present purposes is the clear recognition that a State incurs responsibility under international law for the breach of its environmental obligations.

Greenwood 1996 (manuscript at 2).
221.
Trail Smelter (U.S. v. Can.), 3 R.I.A.A. 1911 (1941). For an interesting revisionist view of the case, see Mickelson 1993.
222.
See Trail Smelter, 3 R.I.A.A. at 1965. The arbitral tribunal stated:

[U]nder the principles of international law, as well as of the law of the United States, no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.

Id. Interestingly, in addition to international law, the arbitral tribunal looked to domestic law, including such U.S. Supreme Court cases as Missouri v. Illinois, 200 U.S. 496 (1906) (water pollution) and Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907) (air pollution). See Trail Smelter, 3 R.I.A.A. at 1964–1965.
223.
See, e.g., LOS Convention, supra note 172, article 194, para 2 (“States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights…”); see also Convention on Long-Range Transboundary Air Pollution, Nov. 13, 1979, pmbl., 18 I.L.M. 1442 [hereinafter Air Pollution Convention]. For examples of national cases, see Antoine 1992, at 519 n.4 (citing cases decided in Strasbourg and Rotterdam).
224.
Though no other international cases involve environmental damage as a core issue, others bear more generally upon uses of a state’s territory that cause damage beyond its borders. See, e.g., Corfu Channel (UK v. Alb.), 1949 I.C.J. 4 (Apr. 9). Corfu Channel involved two British warships that were damaged in 1946 when the vessels hit German mines in Albanian waters in the Straits of Corfu. Several sailors were killed. On the issue of state responsibility, the ICJ ruled in the United Kingdom’s favor, finding that Albania must have known of the mines’ presence, and did nothing to warn the ships despite its duty to do so. As it bears on the environment, Corfu Channel stands for the principle that a state is obligated to refrain from allowing its territory to be used in a fashion that causes harm to others. See id. at 22; see also Lake Lanoux Arbitration (Fr. v. Spain), 12 R.I.A.A. 281 (1957) (holding that although Spain cannot preclude France from using upstream water as it sees fit, as matter of equity, France should consider Spain’s counterproposals for use).
225.
Nuclear Tests (Austl. v. Fr.), 1974 I.C.J. 253 (Dec. 20); Nuclear Tests (N.Z. v. Fr.), 1974 I.C.J. 457 (Dec. 20).
226.
See Nuclear Tests (Austl. v. Fr.), 1974 I.C.J. at 271–272; Nuclear Tests (N.Z. v. Fr.), 1974 I.C.J. at 477–478.
227.
See Nuclear Tests (Austl. v. Fr.), 1973 I.C.J. 99 (Interim Protection Order of June 22); Nuclear Tests (N.Z. v. Fr.), 1973 I.C.J. 135 (Interim Protection Order of June 22).
228.
Restatement (Third) of Foreign Relations Law of the United States, § 601 (1987) [hereinafter Restatement (Third)].
229.
Id. Professor Walker has argued that the Restatement may not be very helpful when law of armed conflict issues interact with the law of the sea and environmental law. See Walker 1996, manuscript at 192.
230.
See Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, Oct. 18, 1907, article I, 36 Stat. 2310; see also AFM 27-10, supra note 175, ch. 9 (land warfare); Convention Concerning the Rights and Duties of Neutral Powers in Naval War, Oct. 18, 1907, 36 Stat. 2415.
231.
On the purposes underlying the law of neutrality, see Norton 1976; Williams 1980.
232.
The remedy for a breach is set forth in Sect. 602(1) of the Third Restatement: “A state responsible to another state for violation of Sect. 601 is subject to general interstate remedies to prevent, reduce or terminate the activity threatening or causing the violation, and to pay reparations for the injury caused.” Restatement (Third), supra note 228, § 602(1).
233.
See Schmitt 1991, 24–33.
234.
LOS Convention, supra note 172.
235.
Ozone Convention, supra note 206.
236.
Air Pollution Convention, supra note 223.
237.
See LOS Convention, supra note 172. One of its precursors, the 1958 Convention on the High Seas, addressed marine pollution in only two provisions. Article 24 required state regulation of marine pollution by oil discharges from vessels, pipelines, or deep seabed activities, and article 25 called upon parties to prevent pollution of the seas from radioactive materials. See Convention on the High Seas, Apr. 29, 1958, articles 24–25, 13 U.S.T. 2312, 450 U.N.T.S. 82. The nonbinding Stockholm Declaration exhorted states to take “all possible steps” to prevent marine pollution. Stockholm Declaration, supra note 203, princ. 7.
238.
LOS Convention, supra note 172, article 194, para 1. The LOS Convention defines pollution of the marine environment as

the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities.

Id. article 1, para 1(4).
239.
See id. article 194, para 2 (“[s]tates shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other states and their environment.”).
240.
See id. article 236 (“The provisions of this Convention regarding the protection and preservation of the marine environment do not apply to any warship, naval auxiliary, other vessels or aircraft owned or operated by a State and used, for the time being, only on government non-commercial service.”).
241.
Though not on point at this juncture, the Convention contains two provisions relevant to the issue of the jus ad bellum. In article 88, it provides that “[t]he high seas shall be reserved for peaceful purposes,” whereas in article 301 it states that

[i]n exercising their rights and performing their duties under this Convention, States Parties shall refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations.

Id. article 301. Of course, neither article would preclude a state’s exercise of appropriate collective or individual self-defense under article 51 of the U.N. Charter.
242.
Iraq ratified the LOS Convention in 1985.
243.
LOS Convention, supra note 172, article 194, para 3(a).
244.
Id. article 194, para 3(d).
245.
See id. articles 207–208, 212.
246.
Ozone Convention, supra note 206.
247.
Id. article 2, para 1. Adverse effects are defined as “changes in the physical environment or biota, including changes in climate, which have significant deleterious effects on human health or on the composition, resilience and productivity of natural and managed ecosystems, or on materials useful to mankind.” Id. article 1, para 2.
248.
See id. article 11.
249.
Air Pollution Convention, supra note 223.
250.
Id. article 12.
251.
See id. article 1.
252.
Id. article 13.
253.
An in-depth analysis is beyond the scope of this chapter. For two excellent studies of the topic, see Green 1996; Greenwood 1996.
254.
Numerous law of war treaties provide for such responsibility. See, e.g., Hague IV, supra note 130, article 3 (“A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.”). A nearly identical provision is found in Protocol I, supra note 8, article 91.
255.
The concept of erga omnes appears in the Barcelona Traction Case. There, the ICJ held that

an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State… By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes. Such obligations derive, for example, in the contemporary international law, from outlawing acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination.

Barcelona Traction, Light & Power Co. (2d Phase) (Belg. v. Spain), 1970 I.C.I. 3, 32 (Feb. 5). The court did not indicate how obligations erga omnes were to be enforced.
256.
See International Law Commission Draft Articles on State Responsibility, supra note 218, articles 32–33; see also Leibler 1992, at 76–77.
257.
That custom can form the basis for war crimes charges was acknowledged by the International Military Tribunal at Nuremberg. The indictment specifically noted that “[a]ll the defendants committed War Crimes… [pursuant to] a Common Plan or Conspiracy… This plan involved… the practice of ‘total war’ including methods of combat and of military occupation in direct conflict with the laws and customs of war.” Indictment, International Military Tribunal, Nuremberg, 1 T.M.W.C. 27, 42–43 (1947) (emphasis added). Today, this premise is accepted as a principle of customary international law.
258.
The Statute of the International Court of Justice provides that the court shall apply custom as “evidence of a general practice accepted as law.” Statute of the International Court of Justice, June 26, 1977, article 38, para 1(b). The Third Restatement notes that custom “results from a general and consistent practice of states followed by them from a sense of legal obligation.” Restatement (Third), supra note 228, § 102(2); see also The Paquete Habana, 175 U.S. 677 (1900); Right of Passage Over Indian Territory (Port. v. India), 1960 I.C.J. 6 (Apr. 12); Asylum (Colom. v. Peru), 1950 I.C.J. 266 (Nov. 20); S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7).
259.
See, e.g., Hague IV, supra note 130, article 22; Protocol I, supra note 8, article 35, para 1. The principle was first recognized in the Declaration of St. Petersburg, 1868, reprinted in 1 Am. J. Int’l L. 95 (Supp. 1907).
260.
Unfortunately, though the substance of these principles is subject to little debate, the form in which they are expressed varies. For instance, the Air Force employs the categories of military necessity, humanity, and chivalry, with proportionality folded into necessity, whereas the Navy uses necessity, proportionality and chivalry. Compare AFP 110-31, supra note 175, at 1-5 to 1-6, with NWP 1–14 M, supra note 178, at 5-1. In substance and application, though, the principles are identical across the military services.
261.
Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Powers and Charter of the International Military Tribunal, Aug. 8, 1945, article 6(b), 59 Stat. 1544, 82 U.N.T.S. 279.
262.
Hostage (U.S. v. List), 11 T.W.C. 759, 1253–1254 (1950).
263.
See Pictet 1958, p. 302. The set of four ICRC Commentaries edited by Jean Pictet is the definitive source on interpretation of the Geneva Conventions of 1949.
264.
DOD Report, supra note 69, at O-27.
265.
Falk 1989, p. 168.
266.
The difficulty in applying the concept was recognized in the Greenpeace Study, as was the imprecision of definition:

It is in the interpretation of military action, and specifically the concept of “military necessity” (the anticipated military value of one’s own action), that there is significant international disagreement as to proper conduct during war. Military necessity is not defined anywhere in the laws of war, but it is intertwined with proportionality and discrimination, the central principles of the “just war” tradition.

Arkin et al. 1991, at 115.
267.
The concept often is confused with a principle of war, economy of force. Economy of force is a common sense warfighter’s rule of thumb: It does not make sense to apply more force than is necessary to attain the objective. The legal concept of proportionality, in contrast, measures advantage against damage caused.
268.
Generally, though, proportionality regarding legitimate targets is more easily dealt with as a military necessity issue.
269.
For a discussion of proportionality in the context of attacks on electrical targets, see William Arkln, Target Iraq: a Documentary History of the Air War (manuscript at ch. 9, on file with author). Mr. Arkin, a human rights activist who specializes in military affairs, puts an interesting, albeit unconventional, spin on how to make proportionality decisions in difficult cases.
270.
See Bothe 1991, at 56.
271.
As Wil Verwey has written:

Subjecting principles of customary law to a modern, liberal interpretation, i.e. a time-related interpretation which takes account of changing and emerging values cherished by society, may be less objectionable than it would be in the case of treaty law. In the former case, state parties cannot claim so easily that they have accepted a precise obligation as formulated in text, and that “that’s it.”

Verwey 1995b, manuscript at 8–9.
272.
See ARKIN, supra note 269, at ch. 9.
273.
See generally Gleick 1987, 9–31 (discussing use of Lorenz (or Butterfly) Effect in chaos theory).
274.
One distinguished international law scholar suggested during the Gulf War that “[t]he enormous devastation that did result from the massive aerial attacks suggests that the legal standards of distinction and proportionality did not have much practical effect.” Schachter 1991, p. 466. This is a minority opinion. Most commentators characterize the air campaign as well within the bounds of legality. See, e.g., Roberts 1996, manuscript at 41.
275.
Among the first formal expressions of the principle was the St. Petersburg Declaration of 1868. The Declaration provided:

Considering that the progress of civilization should have the effect of alleviating, as much as possible the calamities of war; That the only legitimate object which states should endeavor to accomplish during war is to weaken the military force of the enemy;

That for this purpose, it is sufficient to disable the greatest possible number of men;

That this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable; That the employment of such arms would, therefore, be contrary to the laws of humanity. Declaration of St. Petersburg, 1868, supra note 259, at 95.
276.
An indiscriminate technique insufficiently distinguishes protected persons (e.g., civilians) and objects from legitimate military objectives.
277.
See supra text accompanying note 17.
278.
These Declarations included a ban on launching projectiles or explosives from the air, a prohibition on the use of projectiles containing asphyxiating or deleterious gases, and a ban on bullets that expand or flatten in the body (Dum Dum bullets). See Final Act of the International Peace Conference, July 29, 1899, reprinted in 1 Am. J. Int’l L. 103 (Supp. 1907); Declaration Concerning Asphyxiating Gases, July 29, 1899, reprinted in 1 Am. J. Int’l L. 157 (Supp. 1907).
279.
See Hague IV, supra note 130.
280.
This status was recognized by the International Military Tribunal in 1939. See International Military Tribunal (Nuremberg), Judgment and Sentences, Oct. 1, 1946, excerpted in McDougal and Reisman 1981, p. 1050.
281.
Hague IV, supra note 130, article 22.
282.
For a pre-Gulf War argument along these lines, see Best 1988.
283.
Hague IV, supra note 130, article 23(e).
284.
This contention is not universally accepted. One commentator has argued by reference to the French text that article 23(e) “suffering” includes “property damage, environmental damage, or damage to anything.” Leibler 1992, at 100. This is an accurate characterization if the damage causes direct human suffering. However, an extension to property or environmental damage per se is not supportable. At any rate, such damage would likely be prohibited under article 23(g).
285.
Hague IV, supra note 130, article 23(g).
286.
See 2 Department of the Army, International Law 174 (pamphlet No. 27-161-2, 1962) [hereinafter ARP 27-161-2]; Pictet 1958, at 301.
287.
Treaty law may, of course, apply with different force than does customary law. As the ICJ has noted, “even if a treaty norm and a customary norm… were to have exactly the same content, this would not be a reason for the Court to take the view that the operation of the treaty process must necessarily deprive the customary norm of its separate applicability.” Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 4, 84 (June 27).
288.
See Leibler 1992, at 106 (citing U.N. War Crimes Commission, Case No. 7150469 (1948)).
289.
Hague lV, supra note 130, article 55.
290.
Id. pmbl.
291.
Protocol I, supra note 8, article 1, para 2.
292.
See ARP 27-161-2, supra note 286, at 15.
293.
Terry 1992, at 63; see also Bothe 1992, p. 104 (asserting that Iraqi actions violated unnecessary suffering provision of article 23(e)).
294.
See DOD Report, supra note 69, at O-22. Note that the Convention contains a general participation clause, i.e., a provision to the effect that the treaty applies only between parties, and then only if all belligerents are parties. See Hague IV, supra note 130, article 2. Iraq was not a party to Hague IV. In 1907 it was still a part of the Ottoman Empire. Twelve years later Iraq became a British mandate, but Great Britain never acceded to Hague IV on its behalf. Therefore, when Iraq gained its independence in 1932 it did not have to acknowledge party status. Of course, the fact that the treaty is recognized as customary international law makes this point somewhat irrelevant.
295.
Other Hague IV provisions that might bear on environmental damage in individual cases include the requirement to respect private property, see Hague IV, supra note 130, article 46, and the prohibition of pillage, see id. article 47.
296.
Geneva Convention IV, supra note 10.
297.
Id. article 53.
298.
See Pictet 1958, at 301.
299.
See Falk 1992, at 78, 88.
300.
See, e.g., Hostage (U.S. v. List), 11 T.W.C. 759 (1950) (acquitting general who had ordered destruction during German evacuation of Norway on basis that destruction was necessary due to general’s (mistaken) belief that Russians were pursuing his forces); see also High Command Case (U.S. v. Von Leeb), 11 T.W.C. 462 (1950) (involving destruction in Soviet Union).
301.
See Kutner and Nanda 1991, p. 93. In specification 10 of charge I, the Iraqis were charged with having “destroyed the real and personal property of protected persons and the State of Kuwait; this destruction was not absolutely necessary to military operations and occurred for the most part after military operations had ceased.” Id.
302.
See, e.g., DOD Report, supra note 69, at O-22; McNeill 1993, at 80; Roberts 1996, manuscript at 39. Additionally, Professor Roberts and Mr. McNeill would concur with Michael Bothe that the actions constituted grave breaches under article 147. See Bothe 1992, at 104.
303.
Geneva Convention IV, supra note 10, article 53.
304.
Pictet 1958, at 302.
305.
Id.
306.
Geneva Convention IV, supra note 10, article 147.
307.
See id. article 146.
308.
See id.
309.
See id.
310.
See DOD Report, supra note 69, at O-22.
311.
Geneva Convention IV, supra note 10, article 147.
312.
Id. article 4.
313.
See Pictet 1958, at 597.
314.
The reasoning behind such concerns is as follows:

The large number of nations which accept the Geneva Conventions, rather than evidencing a development of well-accepted custom, may actually obscure the degree to which the treaties have become customary law. As parties to the treaties, nations may be simply following their conventional obligations rather than forging new customary practices. Because of this possibility, the Geneva Conventions paradoxically may remain conventional law rather than having evolved into customary law. Presumably, customs cannot develop when widely subscribed to conventions already exist.

Caggiano 1993, 493 (footnotes omitted). However, recall that the International Military Tribunal found Hague IV to be customary law, see supra note 280, even though by its own terms, it is limited in application to parties, see Hague IV, supra note 130, article 2. I doubt whether there is an inverse relationship between accession to a treaty and the customary character of its provisions. See Meron 1987.
315.
See Vienna Convention, supra note 193, article 38 (“Nothing… precludes a rule set forth in a treaty from becoming binding upon a third State as a customary rule of international law, recognized as such.”); see also North Sea Continental Shelf (F.R.G. v. Den.) (F.R.G. v. Neth.), 1969 I.C.J. 4 (Feb. 20).
316.
See Agora: The U.S. Decision Not to Ratify Protocol I to the Geneva Conventions on the Protection of War Victims, 81 Am. J. Int’l L. 910, 916 (1987) [hereinafter Agora].
317.
Letter of Transmittal from President Ronald Reagan, Protocol II Additional to the 1949 Geneva Conventions, and Relating to the Protection of Victims of Non-International Armed Conflicts, S. Treaty Doc. No. 2, 100th Congo (1987), reprinted in Agora, supra note 316, at 911.
318.
See International and Operations Law Div., Office of the Judge Advocate Gen., Dep’t of the Air Force, Operations Law Deployment Deskbook tab 12 [hereinafter Deployment Deskbook] (summarizing Protocol I and stating U.S. position on key articles).
319.
The interesting question is whether all the parties can agree on which provisions are customary. For an analysis of the Protocol as customary law in the Gulf War, see Greenwood 1993.
320.
See ICRC Commentary, supra note 17, at 661.
321.
The proposal submitted by the experts of Czechoslovakia, the German Democratic Republic, and Hungary read: “It is forbidden to use weapons, projectiles or other means and methods which upset the balance of the natural living and environmental conditions.” International Comm. of the Red Cross 1972, p. 51. The proposal submitted by the experts of Poland forbade the use of “methods and means which destroy the natural human environment.” Id. at 52.
322.
See ICRC Commentary, supra note 17, para 2129, at 662.
323.
See id., para 2130, at 663; 15 Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts 220 [hereinafter O.R.].
324.
See 15 O.R., supra note 323, at 358–359.
325.
See 14 id. at 405–406.
326.
See 15 id. at 358–359.
327.
See 14 id. at 404.
328.
See supra text accompanying notes 48–49 (Quoting articles 35(3) and 55).
329.
Inclusion of both raised a few hackles. The United Kingdom, for example, went on record disapproving inclusion of article 35(3) in this section, and interpreted it as a mere repetition of article 55. It is particularly important that the United Kingdom viewed the provisions as protecting the environment in order to protect civilians living in it. See 6 O.R., supra note 323, at 118.
330.
See Protocol I, supra note 8, article 55, para 1. For purposes of clarity, it should be noted that article 55 falls under part IV, chapter III, entitled “Civilian Objects.” Therefore, it does not protect military objectives. In contrast, there is no such structural limitation with regard to article 35(3). Additionally, note that article 55 refers to the “population” without the adjective “civilian.” The official record makes clear that this omission was intentional—the goal was to extend the protection to the whole population, since the damage was to be long-term. See 15 O.R., supra note 323, at 360. Finally, “health” is used in the provision to provide protection beyond that needed for bare survival. Effects that would pose a serious blow to health—such as congenital defects or deformities—would, therefore, be encompassed within the meaning of the provision. See 15 id. at 281.
331.
ICRC Commentary, supra note 17, para 1441, at 410.
332.
See 15 O.R., supra note 323, at 268.
333.
See id. at 269.
334.
According to the ICRC Commentary, “[i]t appeared to be a widely shared assumption that battlefield damage incidental to conventional warfare would not normally be proscribed by this provision.” ICRC Commentary, supra note 17, para 1454, at 417 (citations omitted).
335.
See Roberts and Guelff 1982, pp. 461–463 (reporting reservations to Protocol).
336.
German Manual, supra note 168, para 403. However, note that this definition complements a provision in the manual that was developed from both Protocol I and ENMOD.
337.
Operational Law Handbook, supra note 179, at 5–8. According to the handbook, most of the damage that occurred during World War II would not have met this threshold. See id.
338.
In fact, that appears to have been the intent. The ICRC Commentary explains that the English text originally read “calculated to cause,” whereas the French text used the phrase “de nature à.” The English iteration suggested that the mental state required was one of intent or deliberation, whereas the French was more restrictive. Therefore, the Conference discarded the “calculated to cause” phraseology, replacing it with “intended, or may be expected.” See ICRC Commentary, supra note 17, para 1458, at 418.
339.
See Roberts 1985, at 146–148. He argues that the “standards set forth in articles 35(3) and 55 are too ambiguous and subject to diverging interpretation to be workable. They could conceivably make military commanders and political leaders subject to prosecution for committing war crimes if they ‘should have known’ their actions would result in proscribed damage to the environment.” Id. at 148. This assertion confuses possibly valid criticism of substantive legal standards with issues of mens rea.
340.
See Joint Serv. Comm. on Military Justice, Manual for Courts-Martial, United States, § 16a(3)(b) (pt. IV 1995). The explanation to article 92 of the code indicates that dereliction of duty may be charged using this standard: “[a]ctual knowledge need not be shown if the individual reasonably should have known of the duties.” Id., § 16c(3)(b).
341.
The issue is not an “either-or” proposition—it is a question of balance. Even intrinsic value advocates would agree that environmental values can be outweighed by human ones. The precise balance depends on the circumstances.
342.
See Verwey 1995b, manuscript at 2.
343.
Bear in mind that proportionality and unnecessary suffering are principles of law, not war.
344.
See Vienna Convention, supra note 193, article 31, para 1 (“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”).
345.
See Bothe et al. 1982, pp. 345–346.
346.
Professor Verwey has observed that the ICRC has never claimed that the care standard of the first sentence was intended to extend the level of protection. See Verwey 1995b, manuscript at 3.
347.
See supra Sect. 8.3.2.3.
348.
Terry 1992, at 64–65.
349.
For discussions of this issue, see Deployment Deskbook, supra note 318, tab 12, para 1.7.1.4; Aldrich 1986, at 718–719; Kalshoven 1978, pp. 108–109.
350.
ICRC Commentary, supra note 17, at 668–669.
351.
Id. at 669.
352.
Matheson 1987, at 436. This contention is insupportable. Imagine a small state facing a large invasion force from the sea. Furthermore, assume that the human rights record of the aggressor force during occupation is dismal. If the small state could foil amphibious operations by dumping oil into the path of the oncoming fleet, would not such an action be both proportionate and militarily necessary even though the damage caused would reach Protocol I levels?
353.
See, e.g., Baker 1993, p. 368.
354.
DOD Report, supra note 69, at O-27.
355.
Gasser 1996 (manuscript at 10 n.4).
356.
A current listing of the parties is maintained by the ICRC at the net site (visited Oct. 23, 1996) http://www.icrc.ch/icrcnews.
357.
See, e.g., Moore 1992, at 78 (noting that articles 35(3) and 55 “may be declaratory of a rapidly developing customary international law”).
358.
For a discussion of operational codes and myth systems, see Reisman 1987, pp. 23–25; Reisman and Baker 1992, pp. 23–24.
359.
See 1993 Secretary General Report, supra note 140, at 5.
360.
See Protocol I, supra note 8, article 35, para 1 (“In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited.”).
361.
See id. article 35, para 2 (“It is prohibited to employ weapons, projectiles and Materials and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.”).
362.
See id. article 51, para 4. The article states that indiscriminate attacks are prohibited. Indiscriminate attacks are:
1. (a)
  those which are not directed at a specific military objective;
2. (b)
  those which employ a method or means of combat which cannot be directed at a specific military objective; or
3. (c)
  those which employ a method or means of combat which cannot be limited as required by this Protocol; and consequently, in each case, are of a nature to strike military objectives and civilians or civilian objects without distinction.
Id.
363.
See id. article 51, para 5 (“[A]n attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated” is one type of indiscriminate attack).
364.
See id. article 57, para 2(b) (“[A]n attack shall be cancelled or suspended if it becomes apparent that the objective is not a military one or is subject to special protection or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”).
365.
See id. article 48 (“In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”).
366.
See id. article 52, para 2. Article 52(2) provides: “Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”
Id.
367.
See id. article I, para 2 (“In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.”).
368.
See id. article 54, para 2.
369.
See id. article 54, paras 3, 5. Anthony Leibler has suggested that since the provision is limited to destruction intended to deny civilians sustenance, and other actions are not treated as prohibited, “at least from the perspective of environmental protection Article 54 is of negligible utility.” Leibler 1992, at 107. On the contrary, article 54 may limit efforts to foment unrest among a population, destroy sustenance available to an advancing force that lives largely off the land, or even foul desalination plants on which both civilians and the military rely.
370.
See Protocol I, supra note 8, article 54, para 2. For instance, altering weather or climate could severely affect food production.
371.
Protocol I, supra note 8, article 56, para 1.
372.
Id. article 56, para 2(a).
373.
Id. article 56, para 2(b).
374.
See id. article 56, para 5.
375.
See 15 O.R., supra note 323, para 326. See also Bothe et al. 1982, at 352. The Greenpeace Study’s statement that “[i]t is unclear whether oil wells constitute installations containing ‘dangerous forces.’ The examples given in Protocol I… are not meant to be exhaustive, and a liberal construction could say that the release of the force of the oil fires and spills is covered,” Arkin et al. 1991, at 140, is thus incorrect.
376.
ICRC Commentary, supra note 17, para 2154 (“[A]s so often in this chapter, this concept is a matter of common sense and it must be applied in good faith on the basis of objective elements such as proximity of inhabited areas, the density of population, the lie of the land, etc.”).
377.
See Protocol I, supra note 8, article 56, para 2(b). The issue of targeting nuclear facilities was raised at the 1990 Review Conference for the Nuclear Non-Proliferation Treaty. The Hungarian and Dutch delegates, with support from several other delegations, suggested an international agreement to address the topic. The U.S. delegation did not respond to the proposal. See Fischer and Müller 1991, p. 566.
378.
See 15 O.R., supra note 323, at 284.
379.
See ICRC Commentary, supra note 17, para 2162, at 671.
380.
Id.
381.
Id.
382.
See Deployment Deskbook, supra note 318, tab 12, para 1.8.7.1; ICRC Commentary, supra note 17, paras 2164–2166, at 671–672.
383.
Ambassador Aldrich, who negotiated Protocol I for the U.S., provides the core analysis supporting ratification. See Aldrich 1986, at 714–716.
384.
See Goldblat 1991, pp. 400–401. Professor Goldblat takes a fairly critical approach to the topic, using as an example the 1981 bombing of the Iraqi nuclear reactor by the Israelis.
385.
See Protocol I, supra note 8, article 85, para 3(a)–(c).
386.
See id. article 88.
387.
See id. article 49, para 3. Article 49(3) provides:

The provisions of this section [Civilian Population] apply to any land, air, or sea warfare which may affect the civilian population, individual civilians or civilian objects on land. They further apply to all attacks from the sea or from the air against objectives on land but do not otherwise affect the rules of international law applicable in armed conflict at sea or in the air.

Id. The exclusion resulted from a conscious effort by the delegates of the Diplomatic Conference to secure agreement where it was most likely to come—in the “well-established” body of law governing land warfare. Their concern was that naval warfare had fundamentally changed, thereby becoming unsettled, during and after the Second World War. In particular, differences of opinion over the state of the law governing issues such as visit and search, the legality of attacks on merchant vessels, and submarine warfare were felt likely to impede the process of updating the existing Geneva Conventions. See Bothe et al. 1982, at 290; ICRC Commentary, supra note 17, at 606. The Bothe commentary notes that this approach was ICRC-proposed and had the support of the states with the largest navies. These parties believed it would be counterproductive to pursue revision of the law of naval warfare at the time, particularly as the preparatory work of the experts had not focused on the subject. See Bothe et al. 1982, at 290.
Similarly, the laws of aerial warfare are not formally codified, and the customary law that addresses the topic is ambiguous. Therefore, the delegates decided to make Protocol I inapplicable at sea or in the air unless the attack in question targeted land objectives. See Protocol I, supra note 8, article 49, para 3. It has been suggested that one additional exception is the extension of applicability to attacks from the sea or air against targets in the territorial sea. See Walker 1996, manuscript at 122. This reasonable approach is based on the Protocol’s use of “territory” and “national territory,” terms which in their legal context include the territorial sea.
388.
See supra notes 323–331 and accompanying text.
389.
See Hearings to Hear Testimony on the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques Before the Senate Comm. on Foreign Relations, 96th Congo (1979); Environmental Modification Treaty: Hearings on the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques Before the Senate Comm. on Foreign Relations, 95th Cong. (1978).
390.
See Schindler and Toman 1988, at 163. In 1974 the Soviet Union submitted a draft convention to the General Assembly, which in turn referred it to the Conference of the Committee on Disarmament. At that point the United States and the Soviet Union provided the Conference with identical drafts of a proposed convention. The text was revised in committee and submitted to the General Assembly, which approved it on December 10, 1976. The Convention was then opened for signature. It entered into force on October 5, 1978. See id.
391.
See Terry 1992, at 64. Also recall the sense of the Senate Resolution. See supra notes 32–33 and accompanying text.
392.
A list of current parties is maintained at net site: http://www.un.org/Depts/Treaty. Note that a state that has signed but not ratified a convention is obligated not to take actions contrary to the object and purpose of the agreement, at least until it has made clear its intent not to become a party. See Vienna Convention, supra note 193, article 18.
393.
This distinction motivated the name change in the Jordanian Note Verbale. See supra notes 115–116 and accompanying text.
394.
ENMOD, supra note 34, article 1.
395.
Understanding Relating to Article I, Report of the Conference of the Committee on Disarmament, U.N.GAOR, 31st Sess., Supp. No. 27, at 91–92, U.N. Doc. A/31/27 (1976), reprinted in Schindler and Toman 1988, at 168. There were four Understandings which, though not part of the Convention, were included in the report transmitted by the Conference of the Committee on Disarmament to the United Nations General Assembly.
396.
Turkey, however, filed an interpretive understanding stating that in its opinion the “terms ‘widespread,’ ‘long-lasting’ and ‘severe effects’… need to be clarified. So long as this clarification is not made the Government of Turkey will be compelled to interpret itself the terms in question and consequently it reserves the right to do so as and when required.” Turkish Interpretive Statement Filed at Time of Signature, May 18, 1977, reprinted in Multilateral Treaties Deposited with the Secretary General (visited Oct. 23, 1996) http://www.un.org/Depts/Treaty.
397.
See Goldblat 1984, 55.
398.
Carruthers 1993, at 47.
399.
ENMOD, supra note 34, article II.
400.
See Understanding Relating to Article II, Report of the Conference of the Committee on Disarmament, U.N. GAOR, 31st Sess., Supp. No. 27, at 91–92, U.N. Doc. A/31/27 (1976), reprinted in Schindler and Toman 1988, at 168. The Understanding reads as follows:

It is further understood that all the phenomena listed above, when produced by military or any other hostile use of environmental modification techniques, would result, or could reasonably be expected to result, in widespread, longlasting or severe destruction, damage or injury. Thus, military or any other hostile use of environmental modification techniques as defined in article II, so as to cause those phenomena as a means of destruction, damage or injury to another State Party, would be prohibited.

It is recognized, moreover, that the list of examples set out above is not exhaustive. Other phenomena which could result from the use of environmental modification techniques as defined in article II could also be appropriately included. The absence of such phenomena from the list does not in any way imply that the undertaking contained in article I would not be applicable to those phenomena, provided the criteria set out in that article were met.

Id.
401.
The DOD report cited with approval the conclusions of the Ottawa Conference on this point. See DOD Report, supra note 69, at O-26 to O-27. However, the Commission for International Due Process of Law, in its draft indictment of Saddam Hussein and his advisers, did allege an ENMOD violation. See Kutner and Nanda 1991, at 95.
402.
See ENMOD, supra note 34, article v.
403.
See id. article I, para 1 (“Each State Party to this Convention undertakes 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.”) (emphasis added).
404.
The ENMOD Convention provided for review conferences to assess the provisions and compliance therewith. See ENMOD, supra note 34, article VIII. Neither the first conference in 1984 nor the second in 1992 was able to arrive at a consensus on anything significant. The second, however, did reaffirm the need to conduct further reviews. See Fleck 1993.
405.
One such concept involves melting the Arctic ice cover in order to raise the level of the sea and thereby flood coastal areas. See Blix 1984, p. 709.
406.
See, e.g., German Manual, supra note 168, para 403 (distinguishing Protocol I from ENMOD damage).
407.
Gas Protocol, supra note 132.
408.
Chemical Weapons Convention, supra note 135.
409.
Conventional Weapons Convention, supra note 134.
410.
Three other conventions cited in the 1993 Secretary General Report that also have some marginal environmental effect are the Biological Weapons Convention, supra note 133; the Convention for the Protection of Cultural Property, supra note 153; and the Convention for the Protection of the World Cultural and Natural Heritage, Nov. 16, 1972, 1037 U.N.T.S. 151.
411.
Gas Protocol, supra note 132, pmbl.
412.
The “Protocol shall cease to be binding on the government of the United States with respect to the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids, materials, or devices, in regard to an enemy State if such State or any of its allies fails to respect the prohibitions laid down in the Protocol.” Reservation Made on Ratification, reprinted in Schindler and Toman 1988, at 126.
413.
See Exec. Order No. 11,850, 40 Fed. Reg. 16,187 (1975).
414.
See id.
415.
These include France, Iraq, Israel, Libya, the former Soviet Union, and the United Kingdom. For the text of the reservations, see Schindler & Toman 1988, at 121–127.
416.
Reisman and Antoniou 1994, p. 58.
417.
G.A. Res. 2603, U.N. GAOR, 24th Sess., Supp. No. 30, at 16, U.N. Doc. A/7630 (1969).
418.
For example, Professor Verwey has noted:

The better view appears to be… that this Protocol was never intended to protect the environment, and that even the employment of herbicides and defoliant agents of the types used during the Vietnam War would only be prohibited to the extent that they can be proven to be toxic to human beings and to actually cause human casualties.

Verwey 1995b, manuscript at 5. On the other hand, Professor Goldblat states that the Protocol “is widely interpreted as applying not only to humans and animals, but also to plants. This is now recognized also by the United States, which made extensive use of herbicides during the war in Vietnam.” Goldblat 1991, at 403. In fact, most states do see the Protocol as extending to plants, and though the United States does not, it has renounced the use of herbicides as a matter of policy except in certain circumstances. See supra notes 413–414 and accompanying text.
419.
Final Declaration of the Conference of the States Parties to the 1925 Geneva Protocol and Other Interested States on the Prohibition of Chemical Weapons, Jan. 11, 1989, 28 I.L.M. 1020.
420.
See id.
421.
See Multilateral Treaties Deposited with the Secretary General (visited Oct. 23, 1996) http://www.un.org/Depts/Treaty.
422.
See Chemical Weapons Convention, supra note 135, article XXI. For an excellent summary of the Convention, as well as the history leading up to its completion, see The Chemical Weapons Convention (visited Oct. 23, 1996) http://www.opcw.nl/guide.htm.
423.
Chemical Weapons Convention, supra note 135, article I, para 1(a). The Convention is not subject to reservation. See id. article XXII.
424.
See id. pmbl.
425.
See id. article II, para 2. The Convention defines “toxic chemical” as any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals. This includes all such chemicals, regardless of their origin or of their method of production, and regardless of whether they are produced in facilities, in munitions or elsewhere.
Id.
426.
For example, in setting forth uses of chemicals that are not prohibited, the Convention includes “[m]ilitary purposes not connected with the use of chemical weapons and not dependent on the use of the toxic properties of chemicals as a method of warfare.” Id. article n, para 9(c).
427.
Operational Law Handbook, supra note 179, at 5-5.
428.
While the Army’s approach makes sense, where does its outer limit lie? For instance, would Saddam Hussein’s actions against Iraqi Kurds be covered? That would depend on whether the operations were characterized as “armed conflict.” The best interpretation is that use is forbidden in situations amounting either to international (Protocol I) or noninternational (Protocol II) “armed conflict.” See supra note 10 (distinguishing between international and noninternational armed conflict).
429.
See Conventional Weapons Convention, supra note 134, pmbl. (“Basing themselves on the principle of international law that the right of the parties to an armed conflict to choose methods or means of warfare is not unlimited, and on the principle that prohibits the employment in armed conflicts of weapons, projectiles and materials and methods of warfare of a nature to cause superfluous injury or unnecessary suffering …”).
430.
See id. (“Also recalling that it is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment …”).
431.
The understandings and reservations appear at Multilateral Treaties Deposited with the Secretary General, supra note 421. The U.S. Understanding is as follows: “The United States considers that the fourth paragraph of the preamble to the convention, which refers to the substance of the provisos of article 35(3) and article 55(1) of Additional Protocol I to the Geneva Conventions for the Protection of War Victims of August 12, 1949, applies only to States which have accepted those provisions.” Id.
432.
Addition of a fourth protocol on blinding lasers was approved by the October 1995 Review Conference. See Additional Protocol on Blinding Laser Weapons (Protocol IV) to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Oct. 12, 1995, U.N. Doc. CCW/CONF.I/7 (1995).
433.
See Protocol on Non-Detectable Fragments (Protocol I), Conventional Weapons Convention, supra note 134.
434.
See Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II), Conventional Weapons Convention, supra note 134.
435.
See id. article 3, para 3(c) (prohibiting states from placing weapons “which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”).
436.
See id. articles 3, 5, 7.
437.
Protocol III, supra note 134, article 2, para 4.
438.
In 1973, the Secretary General of the United Nations noted that

[a]lthough there is a lack of knowledge of the effects of widespread fire in these circumstances, such attempts may lead to irreversible ecological changes having grave long-term consequences out of all proportion to the effects originally sought. This menace, though largely unpredictable in its gravity, is reason for expressing alarm concerning the massive employment of incendiaries against the rural environment.

United Nations Dep’t of Political and Sec. Council Affairs, Napalm and Other Incendiary Weapons and All Aspects of Their Possible Use, U.N. Doc. A/8803/Rev.l, U.N. Sales No. E.73.1.3 (1973).
439.
See Protocol III, supra note 134, article 2, para 4.
440.
Factory at Chorzów (Genu. v. Pol.), 1928 P.C.I.1. (ser. A) No. 17 (Sept. 13).
441.
Id. at 47.
442.
See Hague IV, supra note 130, article 3; Protocol I, supra note 8, article 91.
443.
See ENMOD, supra note 34.
444.
See Greenwood 1996, manuscript at 5 (citing decision of arbitral tribunal in United States-Mexican Mixed Claims Commission, Youmans, 4 R.I.A.A. 110 (1926).
445.
Id. at 8.
446.
S.C. Res. 674, U.N. SCOR, 45th Sess., 2951st mtg. para 8, U.N. Doc. S/RES/674 (1990), reprinted in 29 I.L.M. 1561, 1563.
447.
S.C. Res. 686, U.N. SCOR, 46th Sess., 2978th mtg. para 2(b), U.N. Doc. S/RES/686 (1991), reprinted in 30 I.L.M. 568, 569.
448.
See S.C. Res. 687, U.N. SCOR, 46th Sess., 2981st mtg. paras 16–19, U.N. Doc. S/RES/687 (1991), reprinted in 30 I.L.M. 847, 852.
449.
See S.C. Res. 692, U.N. SCOR, 46th Sess., 2987th mtg., U.N. Doc. S/RES/692 (1991), reprinted in 30 I.L.M. 864. On the work of the Commission, see Bettauer 1995; Crook 1993; Fox 1993, at 261; Harper 1996 (manuscript at 7–9). The current deadline for claims submission is February 1, 1997. See Compensation Commission, Governing Council Decision No. 12, U.N. Doc. S/AC.26/1992/12. The State Department ultimately expects approximately 200 billion dollars in claims to be filed. See Harper 1996, manuscript at 7.
450.
Included within the damage for which Iraq is responsible is that caused as a result of Coalition operations. This approach is premised on the theory that “but for” Iraq’s wrongful acts, Coalition operations would never have occurred. The relevant provision provides:

This [responsibility] will include any loss suffered as a result of: (a) Military operations or threat of military action by either side during the period 2 August 1990 to 2 March 1991… [and] (c) Actions by officials, employees or agents of the Government of Iraq or its controlled entities during that period in connection with the invasion or occupation.

Compensation Commission, Governing Council Decision No. 7, para 34, U.N. Doc. S/AC.26/1991/7IRev. 1, reprinted in United Nations, the United Nations and the Iraq–Kuwait Conflict, 1990–1996, at 429, 429 (1996). The actual damage for which the Iraqis will pay includes:

direct environmental damage and the depletion of natural resources as a result of Iraq’s, unlawful invasion and occupation of Kuwait. This will include losses or expenses resulting from: (a) Abatement and prevention of environmental damage, including expenses directly relating to fighting oil fires and stemming the flow of oil in coastal and international waters; (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 purposes of evaluating and abating the harm and restoring the environment; (d) Reasonable monitoring of public health and performing medical screenings for the purposes of investigation and combating increased health risks as a result of the environmental damage; and (e) Depletion of or damage to natural resources.

Id.
451.
Draft Code of Crimes Against the Peace and Security of Mankind, article 26, in Report of the International Law Commission on the Work of Its 43d Session, U.N. GAOR, 46th Sess., U.N. Doc. A/46/405, reprinted in 30 I.L.M. 1563, 1593 (1991).
452.
See War Crimes Documentation CTR., Office of the Judge Advocate Gen., U.S. Army, Report on Iraqi War Crimes (Desert Shield/Desert Storm) 45–48 (1992) (unclassified version on file at Naval War College Library, Newport, Rhode Island).
453.
See id. at 10–11.
454.
Id. at 13.
455.
See Letter Dated 19 March 1993 from the Deputy Permanent Representative of the United States of America to the United Nations Addressed to the President of the Security Council, U.N. Doc. S/25441 (1993).
456.
Harper 1996, manuscript at 10.
457.
As was the intent, for example, in the drafting of Protocol I vis-a-vis the Geneva Convention of 1949. See supra Sect. 8.3.3.3.
458.
Verwey 1995a, at 33.
459.
See id. at 38–40.
460.
Professor Verwey’s discussion of the principle includes the concept of per se protection. See id. at 36–37. Indeed, he speaks of the possibility of recognizing the environment as the common heritage of mankind, a particularly anthropocentric characterization. The mere fact that the environment is protected per se does not imply that it is not valued for its anthropocentric character. It simply means that it is considered an independent and unique entity. Whether it is valued intrinsically, anthropocentrically, or in both ways is a separate question.
461.
See The Gulf War: Environment as a Weapon 1991, at 220–223 (remarks of Sebia Hawkins of Greenpeace International).
462.
See supra text accompanying notes 94–95.
463.
Another obstacle is the fact that the United States is not a party to one of the ICRC Guidelines’ key reference points, Protocol I.
464.
This happened with the Law of the Sea Convention. The U.S. objected to the seabed mining provisions of the treaty. See LOS Convention, supra note 172, pt. XI. Another example is Protocol I, which was designed to update the Geneva Conventions. See Protocol I, supra note 8. While it has proven somewhat difficult to secure universal agreement on Protocol I, the process of securing consensus probably moves as quickly as the evolution of customary principles.
465.
Gasser 1996, manuscript at 5–6.
466.
Harper 1996, at 9.
467.
For an excellent analysis of the roles of military manuals, see Reisman and Leitzau 1991.
468.
The new Navy manual, NWP 1–14 M, supra note 178, is certain to be as widely adopted as its predecessor, NWP 9.
469.
Reisman and Leitzau 1991, at 1.
470.
The Army’s current position is that the 1993 Chemical Weapons Convention is not generally applicable to MOOTV. However, U.S. policy limiting the uses of chemicals to those set forth in Executive Order 11,850 for riot control agents would apply to MOOTW. See Operational Law Handbook, supra note 179, at 5-5; see also supra notes 427–428 and accompanying text.
471.
A caveat that peacetime law may be applicable to the extent it is consistent with the law of armed conflict could be included as a footnote if an annotated version is produced (as is being done with NWP 1–14 M, supra note 178). The ICRC Guidelines provide an example of how such a provision might read: “International environmental agreements and relevant rules of customary law may continue to be applicable in times of armed conflict to the extent that they are not inconsistent with the applicable law of armed conflict.” ICRC Guidelines, supra note 149, para 5.
472.
The ICRC Guidelines correctly state the standard: “Destruction of the environment not justified by military necessity violates international humanitarian law… The general prohibition to destroy civilian objects, unless such destruction is justified by military necessity, also protects the environment.” ICRC Guidelines, supra note 149, paras 8–9.
473.
The technique is considered a form of starvation. See Deployment Deskbook, supra note 318, tab 12, paras 1.8.5–1.8.5.1.
474.
The Protocol allows use in this circumstance. See Protocol III, supra note 134, article 2, para 3.
475.
See supra note 178.
476.
See supra note 171.
477.
See supra note 337 and accompanying text.
478.
See supra note 395 and accompanying text.

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Abbreviations

DOD: Department of Defense
ENMOD: Convention on the prohibition of military or any other hostile use of environmental modification techniques convention
ICEL: International Council of Environmental Law
ICRC: International Committee of the Red Cross
ILC: International Law Commission
LOS: Law of the Sea
MOOTW: Military operations other than war
NATO: North Atlantic treaty organization
NCA: National command authority
NSD: National Security Directive
OSD: Office of the Secretary of Defense
ROPME: Regional Organization for the Protection of the Marine Environment
SAM: Surface-to-air missiles
U.S.: United States of America
UNCED: United Nations Conference on the Environment and Development
UNEP: United Nations Environment Programme
UXO: Unexploded ordnance
WMD: Weapons of mass destruction

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Schmitt, M.N. (2011). Green War: An Assessment of the Environmental Law of International Armed Conflict. In: Essays on Law and War at the Fault Lines. T.M.C. Asser Press. https://doi.org/10.1007/978-90-6704-740-1_8

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