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Edited by 
Richard J. Grunawalt, John E. King and Ronald S. McClain 

Volume 69 


Library of Congress Cataloging-in-Publication Data 

Protection of the environment during armed conflict / edited by 
Richard J. Grunawalt, John E. King and Ronald S. McClain. 
p. 720 cm. — (International law studies; v. 69) 
Includes index. 

1. War (International law) — Environmental aspects. 
2. Environmental law, International. I. Grunawalt, Richard J., 1934— 
II. King, John E., 1949- . III. McClain, Ronald S., 1959- 
IV. Series. 
JX1295.U4 vol.69 
363.7— dc20 



This book is dedicated to the memory of Dr. John H. McNeill - patriot, 
scholar, counselor, and friend. 

Contents vii 







Rear Admiral James R. Stark, U.S. Navy 

and Professor Richard J. Grunawalt 3 


The Honorable Conrad Harper 8 


Rear Admiral Carlson M. LeGrand, JAGC, U.S. Navy ... 23 



Rear Admiral William H. Wright, IV, US. Navy 35 

Brigadier General Joseph G. Garrett, U.S. Army 42 

Major General Robert E. Linhard, U.S. Air Force 57 




viii Contents 


Dr. Ronald A. DeMarco and 

Commander John P. Quinn, J AGC, U.S. Navy 87 


Colonel Frank R. Finch, U.S. Army 99 

Mr. William M. Arkin 116 


Dr. Arthur G. Gaines, Jr 136 



Professor George K. Walker 185 

Professor Adam Roberts 222 


Professor Paul C. Szasz 278 


MOOTW) 313 

Contents ix 


Rear Admiral Bruce A. Harlow, JAGC, U.S. Navy (Ret.) and 
Commander Michael E. McGregor, JAGC, U.S. Navy ... 315 

Colonel James A. Burger, JAGC, U.S. Army 333 


Dr. Raul E. Vinuesa 346 


Professor Theodor Meron 353 




Mr. Gary Vest 383 



Professor Christopher Greenwood 397 

Professor Leslie C. Green 416 


Dr. Glen Plant '. 440 



x Contents 

Professor Michael Bothe 473 

Dr. Gerard J. Tanja 479 


Professor Howard S. Levie 491 



Dr. Hans-Peter Gasser 521 

Dr. Dieter Fleck 529 

Dr. John H McNeill 536 


Professor Ivan Shearer 546 


Captain J. Ashley Roach, JAGC, U.S. Navy (Ret.) 556 


Professor WilD. Verwey 559 

Contents xi 


Professor Bernard H. Oxman 576 




Professor John Norton Moore 629 




INDEX 657 


The International Law Studies "Blue Book" series was initiated by the Naval 
War College in 1901 to publish essays, treatises and articles that contribute to the 
broader understanding of international law. This, the sixty-ninth volume of the 
series, consists of papers written for and presented at a recent Naval War College 
Symposium on the Law of Naval Warfare: The Protection of the Environment During 
Armed Conflict and Other Military Operations, and includes the proceedings of that 

Participants in the Symposium represented a broad range of expertise in the 
increasingly important field of environmental protection during armed conflict 
and other military operations. Included were government officials, operational 
commanders, environmental scientists, international law scholars, military and 
civilian lawyers and environmental advocates. Representatives from Argentina, 
Australia, Canada, Germany, the Netherlands, Switzerland, the United Kingdom 
and the United States contributed to the Symposium and to this volume. The 
result is a thorough and well-balanced discussion of the compelling necessity to 
protect the natural environment, to the fullest extent possible, from the ravages of 
war and other military operations, and of the adequacy of existing international 
law to accomplish that purpose. While the opinions expressed in this volume are 
those of the individual participants and not necessarily those of the United States 
Navy or the Naval War College, they collectively provide a valuable contribution 
to the study and development of the law of naval warfare. On behalf of the Secretary 
of the Navy, the Chief of Naval Operations and the Commandant of the Marine 
Corps, I extend to the editors and the contributing authors of this informative and 
provocative work our gratitude and thanks. I also extend our special thanks to the 
Honorable Walter B. Slocombe, Under Secretary of Defense for Policy, for 
providing the means to allow the Naval War College to conduct the Symposium 
and to publish this volume. 

Rear Admiral, U.S. Navy 
President, Naval War College 


In September 1995, the Naval War College, with the encouragement and support 
of the Under Secretary of Defense for Policy, hosted a Law of Naval Warfare 
Symposium on The Protection of the Environment During Armed Conflict and 
Other Military Operations. This volume comprises the proceedings and the papers 
of that Symposium. 

International outrage at the environmental depredations visited upon Kuwait 
and upon the waters of the Persian Gulf during the Gulf War drew renewed 
attention to the ongoing debate among environmentalists, scientists, lawyers, 
policy-makers and military officials over the adequacy of international law 
designed to protect our natural heritage. This subject rapidly became a source of 
sharp controversy as those who advocated a stronger role for environmental 
protection measures during armed conflict were challenged to acknowledge the 
realities of warfare. Similarly, those responsible for the national security of their 
respective nations, and for the effective utilization of modern weapons and 
weapons systems in the defense of their vital national interests, were being 
admonished that they must be cognizant of the very real danger to the environment 
that combat operations inescapably entail. Unfortunately, much of that debate 
tended to polarize, rather than mediate these often disparate positions. The 
principal purpose of the Naval War College Symposium was to provide a forum 
for U.S. and foreign experts representing the breadth of that spectrum to enlighten 
one another. To that end, forty eminent government officials, legal scholars, 
scientists, environmentalists and operational commanders from the United States, 
the United Kingdom, Australia, Argentina, Canada, Germany, Switzerland and 
the Netherlands assembled in Newport to engage in a broad ranging investigation 
of these issues. The product of that endeavor, as reflected in this volume, has been 
a marshaling of views that will further the development of an international 
consensus along rational and effective lines. 

The Symposium looked first at the strategic imperatives of international armed 
conflict and of non-international military operations involving the use of force, 
that of necessity may impact adversely on the natural environment. This was 
followed by an appraisal of the nature and relative severity of that impact. The 
Symposium next examined the existing framework of international law and its 
effectiveness in providing an acceptable level of protection for the environment. 
Finally, the Symposium assessed the need for new international accords to 
establish additional norms for protection of the environment across the spectrum 
of operations involving armed conflict or to provide enhanced means of 
enforcement for existing measures. 

This volume is comprised of 39 Chapters organized into ten Parts. Part One, 
entitled Introduction, consists of welcoming remarks by Rear Admiral James R. 


Stark, President of the Naval War College and by Professor Jack Grunawalt, Director, 
Oceans Law and Policy Department of the College and Symposium host. The 
Opening Address, presented by the Legal Advisor to the U.S. Department of State, 
Mr. Conrad Harper, provides an overview of U.S. policy regarding protection of the 
environment during armed conflict. Part One concludes with an address by Rear 
Admiral Carlson LeGrand, J AGC, U.S. Navy, the Deputy Judge Advocate General of 
the Navy. Rear Admiral LeGrand's presentation, "Framing the Issues", provided the 
conferees with an outline of the matters that were to be addressed and set exactly the 
right tone for the subsequent proceedings. 

Parts Two through Five and Seven through Nine report the proceedings and 
papers of the seven Symposium panels. Each of those Parts devotes a separate 
chapter to the papers of the individual panelists while the final chapter reports 
verbatim the proceedings of that panel. This reporting methodology ensures a full, 
albeit somewhat redundant, accounting of the work of each panel. 

Part Two reflects the proceedings of the first panel - The Strategic Imperative, 
moderated by Brigadier General Walter Huffman, JAGC, U.S. Army. Panel I 
sought to determine what impact on the environment must the military be allowed 
in order to win across the spectrum of conflict. Panelists were Rear Admiral 
William Wright, IV, U.S. Navy; Brigadier General Joseph G. Garrett, U.S. Army; 
and Major General Robert E. Linhard, U.S. Air Force. Each panelist provided an 
operational commander's analysis from the perspective of his service. 

Part Three addresses the Environmental Threat of Military Operations. Vice 
Admiral James Doyle, Jr., U.S. Navy (Ret.), served as moderator. Dr. Ronald A. 
DeMarco, Director of Environmental Programs in the Office of Naval Research, 
and Colonel Frank R. Finch, U.S. Army, Director of Army Environmental 
Programs, discussed, respectively, the impact on the marine and land environment 
of both combat and non-combat operations. Mr. William Arkin, long associated 
with the environmental movement and an internationally recognized voice on the 
military-environmental human rights nexus, assessed the impact of the Gulf War 
on Kuwait, Iraq and the waters of the Gulf. Dr. Arthur Gaines, Jr., of the Marine 
Policy Center at Woods Hole Oceanographic Institute, served as commentator for 
the panel. Dr. Gaines focused principally on the extent that environmental 
protection concepts can reasonably be applied to military operations and the harm 
to the environment caused by such operations relative to harm caused by natural 
disaster phenomena. 

The Existing Legal Framework - Protecting the Environment During 
International Armed Conflict, was the topic of Panel III and is reported in Part 
Four. Dr. Myron Nordquist, Professor Of International Law at the Air Force 
Academy and the 1995-96 Stockton Professor of International Law at the Naval 
War College, served as moderator. Professor George Walker, Professor of Law at 
Wake Forest University, and Professor Adam Roberts, Montague Burton 


Professor on International Relations at Oxford University, presented the principal 
papers for Panel III. Professor Paul Szasz, former Principal Legal Officer and 
Deputy to the Legal Counsel of the United Nations, was the commentator for the 
panel. Professors Walker, Adams and Szasz outlined the development and current 
status of the international legal order pertaining to environmental protection 
during armed conflict. Their presentations, and the lively discussions that 
followed, provide a comprehensive assessment of existing international customs 
and conventions that apply directly or derivatively to the environment in time of 

Part Five continues the analysis of current international law but does so with 
respect to the use of force below the threshold of international armed conflict. 
Panel IV, The Existing Legal Framework - Protecting the Environment During 
Non-International Armed Conflict Operations Involving the Use of Force (i.e. 
Military Operations Other Than War - MOOTW), was moderated by Rear 
Admiral Horace B. Robertson, JAGC, U.S. Navy (Ret.), and Professor Emeritus 
of Law at Duke University School of Law. Panelist were Rear Admiral Bruce A. 
Harlow, JAGC, U.S. Navy (Ret.), former Assistant Judge Advocate General of the 
Navy; and Colonel James A. Burger, JAGC, U.S. Army, Staff Judge Advocate, 
Allied Forces Europe/Headquarters AFSOUTH; both of whom presented 
principal papers. Dr. Raul Vinuesa, Professor of International Law and Human 
Rights at the University of Buenos Aires; and Professor Theodor Meron, Professor 
of International Law at New York University School of Law, served as 
commentators. Panel IV examined that body of international environmental law 
that pertains to internal conflicts as well as to the utilization of the military for 
such peacetime purposes as humanitarian intervention, peacekeeping, non- 
combatant evacuation operations and disaster assistance. The elusive concept of 
"MOOTW" was also addressed in this context. Colonel Burger's report on the 
manner in which NATO forces in Bosnia are incorporating environmental 
protection considerations into operational planning and rules of engagement was 
particularly timely and germane. 

Mr. Gary Vest, Principal Assistant to the Deputy Under Secretary of Defense 
for Environmental Security, addressed the conferees at a luncheon on the second 
day of the Symposium. Mr. Vest's remarks and the ensuing questions and answers 
are set forth in Part Six of this volume. The extraordinarily robust environmental 
protection program of the U.S. Department of Defense, currently funded at an 
annual rate in excess of five billion U.S. dollars, coupled with a well-developed 
environmental ethic within U.S. armed forces generally, led Mr. Vest to conclude 
that protection of the environment throughout the spectrum of military operations 
is a high priority for the United States. 

Part Seven addresses the issue of State responsibility and civil reparation for 
environmental damage arising during armed conflict. The moderator for Panel V, 


which undertook this effort, was Mr. Todd Buchwald, the Assistant Legal Adviser 
for Political Military Affairs in the U.S. Department of State. Panelists were 
Professor Christopher Greenwood at Magdalene College, University of Cambridge 
in the United Kingdom, and Professor Leslie C. Green, University Professor 
Emeritus and Honorary Professor of Law at the University of Alberta, Canada. 
Dr. Glen Plant, Director of the Centre for Environmental Law and Policy at the 
London School of Economics was the commentator for this panel. (The aptness 
of the names of the panelists - Greenwood, Green and Plant - was noted by Mr. 
Buchwald to the delight of the conferees). All three panelists stressed that while 
States are legally responsible for environmental damage that they cause which 
impacts beyond their own borders, the reality is that there have been very few 
instances where States have consented to arbitral or judicial resolution of claims 
brought against them. Absent a Security Council-mandated resolution (such as 
the U.N. Compensation Commision for Iraq), mechanisms for international 
enforcement of State responsibility for environmental damage are essentially 

Part Eight of this volume examines criminal responsibility for environmental 
damage, particularly during armed conflict. Dr. Anne Hollick, U.S. Department 
of State, served as moderator for Panel VI. Panelists were Professor Michael Bothe 
of Johann Wolfgang Goethe University in Frankfurt, Germany, and Dr. Gerard 
Tanja, General Director of the T.M.C. Asser Institute for International Law in 
The Hague, the Netherlands. Professor Howard S. Levie, Professor Emeritus of 
Law at Saint Louis University, was the panel commentator. This group of eminent 
scholars focused on criminal responsibility for environmental damage under the 
existing law of armed conflict. Once again the conclusion was reached by the 
panelists that although the current framework of the law on this issue is not as 
well-developed as it might be, particularly as it applies to non-international armed 
conflict, the principal failure is in the arena of enforcement. 

Part Nine reports the papers and proceedings of Panel VII: The Debate to 
Access the Need for New International Accords. The moderator for Panel VII was 
Colonel James Terry, USMC (Ret.), formerly the Legal Advisor to the Chairman 
of the Joint Chiefs of Staff and now with the U.S. Department of the Interior. 
Panelists were Dr. Hans-Peter Gasser of the International Committee of the Red 
Cross, Dr. Dieter Fleck of the German Ministry of Defence, Dr. John H. McNeill, 
Principal Deputy General Counsel of the U.S. Department of Defense; and 
Professor Ivan Shearer of the University of Sydney, Australia. Commentators were 
Captain J. Ashley Roach, JAGC, USN (Ret.), and now of the U.S. Department of 
State; and Professor Bernard H. Oxman of the University of Miami School of Law. 
The third commentator for Panel VII, Professor Wil D. Verwey of the University 
of Groningen, the Netherlands, was unable to attend the Symposium. Professor 
Verwey's provocative paper was nonetheless presented to the conferees by Captain 


A. Ralph Thomas, JAGC, U.S. Navy, Deputy Director of the Oceans Law and 
Policy Department at the Naval War College. The strong, albeit not unanimous, 
conclusion of the panelists and commentators of Panel VII was that although a 
good deal of work remains to be done to further develop the framework of 
international law protecting the environment during armed conflict and other 
military operations involving the use of force, pressing for additional international 
accords at the current time would likely be counter-productive. There was, 
however, general consensus that it is the failure of enforcement of existing norms 
rather than the lack of standards for protection of the environment that is the 
principal deficiency of this area of international law generally, and of the law of 
armed conflict in particular. 

Part Ten, Conclusion, consists of the Concluding Remarks of Professor John 
Norton Moore of the University of Virginia. Professor Moore's remarks provided 
a powerful and articulate capstone to the Symposium. Professor Moore noted that 
there is nothing inherent in modern warfare that compels environmental 
destruction of the magnitude visited on Kuwait and the Persian Gulf by Saddam 
Hussein during the Gulf War. Professor Moore agreed with the overwhelming 
majority of speakers before him that the existing legal framework provides the 
necessary basis for protection of the environment from wanton destruction during 
armed conflict. The principal task in enhancing the rule of law is not "tweaking 
the normative system" but ensuring "compliance with the existing legal regime." 
Professor Moore concluded by noting that the core concept for enhancing the rule 
of law is controlling governmental actions and that it is the leadership of "rogue" 
totalitarian regimes that is the fundamental problem. The importance of effective 
deterrence under the rule of law is the key to controlling the behavior of that 
criminal elite. 

The purpose of this volume is to faithfully report the extraordinary breadth of 
operational experience, scientific expertise, legal acumen and public policy 
sagacity represented by the papers, presentations and discussion at the Naval War 
College Symposium on Protection of the Environment During Armed Conflict 
and Other Military Operations. The editors would like to add their collective 
voices to that of the President of the Naval War College in thanking all of the 
participants for their role in ensuring the success of the Symposium and for their 
contribution to this volume and to the study of the Law of Naval Warfare. The 
views represented in this work will indeed further the development of an 
international consensus to facilitate more effective protection of the natural 
environment across the spectrum of conflict. 

Richard J. Grunawalt John E. King Ronald S. McClain 

Professor of Law Colonel, JAGC Major 

U.S. Army U.S. Marine Corps 



Chapter I 
Welcoming Remarks 

Rear Admiral James R. Stark, U.S. Navy 

President, Naval War College 


Professor R.J. Grunawalt 

Director, Oceans Law and Policy Department, Naval War College 

Professor Grunawalt: Good Morning. Let me be the first to unofficially welcome 
you to Newport. I will leave the formal welcome to the President of the Naval War 
College, Rear Admiral Jim Stark, in just a moment. In looking out at all of you 
folks here this morning, there are so many of you that are old friends, and now so 
many new friends. As a matter of fact, Bruce Harlow and I were reminiscing last 
night that we first began to work together 30 years ago. And others of course, we 
have just met for the first time this morning. So old friends and new, and folks 
from far and near. Welcome! Ivan Shearer takes the prize for coming the longest 
distance, from Australia. Raul Vinuesa, I guess you're second, from Argentina. 
Howard Levie, a Newporter, came the shortest distance to be with us today. But 
anyway, welcome one and all. You will see a fairly large contingent of Stockton 
Chairholders, old and new, and hopefully future, amongst us as well. With us are 
former Chairholders Howard Levie, Robbie Robertson, Jack McNeill, George 
Walker, and myself. Myron Nordquist, the current holder of the Chair is with us 
as well. Others who contributed a paper, and Bob Turner, with a prior commitment 
down at Virginia, could not be with us today. And I am sorry to report that the 
Mallisons could not join us. I received a letter from Tom and Sally that I would 
like to share with you. 

Dear Jack, I'm sure you know how disappointed we are not to be at the Naval War 
College Symposium. Sally and I send warm best wishes to you and your colleagues. 
Please convey our best wishes to the participants in the Symposium including many 
good friends of ours and former students. We know that the Symposium and ensuing 
Blue Book will be iminently successful. 

Tom and Sally Mallison 
So we pretty well have most of the Stockton waterfront covered. 

4 Protection of the Environment During Armed Conflict 

The genesis of this conference actually came about two years ago at a Naval War 
College Operational Law Board of Advisors Meeting right here in this room. The 
concept of having such a conference was proposed by Captain Harvey Dalton. We 
have finally brought it to fruition with the assistance of the Under Secretary of 
Defense (Policy), who is our sponsor. Admiral Biff Legrand will tell us a little later 
this morning about the task ahead in his Framing of the Issues presentation. So we 
anticipate a spirited two and a half days of discussion. 

We have a whole bunch of different folks with us. We have environmentalists, 
warriors, academics, policy makers, lawyers, engineers, and scientists. We have the 
entire spectrum of interests here. Hopefully, we can learn from one another and 
perhaps bring a little harmony to what is often times a contentious issue. We are 
certainly looking forward to your participation during the next two and a half days. 

I would also like to introduce you to my staffand those who will be of assistance 
to you throughout the Symposium. First of all, Captain Ralph Thomas, U.S. Navy. 
In addition to being Deputy of the Department, Ralph is responsible for those 
matters dealing with naval warfare. Colonel John King, U.S. Army, who I think 
you all have been talking to quite a bit. John, in addition to being responsible for 
land warfare issues within the Department, is the coordinator for our Symposium. 
And we will be hearing a lot from John. Captain-Select Pete Mitchell, U.S. Coast 
Guard, is our maritime law enforcement guru. Major Ron McClain, U.S. Marine 
Corps, is our amphibious warfare specialist. And just so you appreciate that we are 
truly "purple," we will have an Air Force officer, Lieutenant Colonel Mike 
Schmitt, joining my staff next spring. Mike will bring an Air Force dimension to 
our department as well. In addition, most of you have met our secretary, Ms. Ginny 
Lautieri. Ginny is the one who really runs things out in front, so please call upon 
Ginny to help as well. I also very briefly want to mention our reserve contingent 
that is here to assist us; Commander Lenny Henson, Commander Don Hill, 
Commander Pete Gazda, and Lieutenant Commander Bill Reilly. We are all at 
your disposal. Please call upon us to help and assist in any manner that we can. 

Next, I would like to introduce Rear Admiral James Stark, U.S. Navy, who will 
extend a formal welcome to you all. Not too long ago, Professor John Haddendorf, 
principal author of the centennial history of the Naval War College, decided that 
he would entitle his book, "Sailors & Scholars". We have been very fortunate over 
the years here at the Naval War College to be led by sailors and scholars, dating 
back to Luce, Mahan, Stockton, and more recently, Stockdale. Most certainly 
Admiral Jim Stark falls into that mold. Naval Academy class of 1965, Ensign Stark 
went to sea duty in the destroyer Brownson. Here you see the cycle begin, 
sea-to-scholar, sea-to-scholar. As a Fullbright Scholar, he went to the University 
of Vienna. Then back to sea again with destroyers Wilkinson, Jenkins and Higby. 
Next, it was on to graduate studies in foreign policy at the Fletcher School of Law 
and Diplomacy at Tufts University where he earned his doctorate in Political 

Welcoming Remarks 5 

Science. Then Commander Stark went back to sea as Executive Officer in the 
destroyer Miles Fox and the cruiser Richar d Turner. Captain Stark commanded the 
frigate Jules A. Furer, and the cruiser, Leahy. Shore assignments along the way were 
obviously very important to him as well. He served on the OPNAV Staff, on the 
National Security Council Staff, and as the Executive Director of the CNO 
Executive Panel. Selected for flag rank in 1991, Admiral Stark assumed command 
of Training Command, Pacific Fleet. Most recently, before coming here to 
Newport, he was Commander of the NATO Standing Naval Force Atlantic. He 
assumed command here at the Naval War College last June. Again, a true 
sailor-scholar and, more importantly, my boss, Admiral Jim Stark. 

Rear Admiral Stark: Good morning. I would like to welcome all of you here to 
Newport and to the Naval War College for what promises to be a very interesting 
and important conference. As I look outside I see that the environment may or 
may not be smiling on us today; it may rain. Just a few years ago, maybe six or 
seven years ago, if you had asked an operational naval officer, and I consider myself 
more of an operator than anything else; if you had asked an operational naval 
officer about the impact of our operations on the environment and vice versa, he 
probably would have responded with a litany of complaints. He might have 
complained that because of environmental concerns he had to stack trash and 
garbage on the stern of his ship rather than throwing it overboard as he had done 
for many, many years. And, in a culture which judges the smartness and 
professionalism of a ship and its captain by the cleanliness and good looks of that 
ship, this was a hard pill for many of us to swallow. But over time, and despite 
complaints, those sorts of accommodations for the environment have come to be 
second nature. And, more encouraging, the Navy has now fielded a number of 
initiatives which make the normal housekeeping functions of warships much more 
environmentally acceptable. But those things are really ancillary to the topic that 
we are addressing today. And, I would say that over that six or seven year period, 
two things have changed our view about the importance of the environment on 
military operations. 

The first of those is the fact that the Soviet Union went away. Back in the bad 
old days of the cold war, we in the Navy spent most of our time worrying about, 
and planning for, how we were going to cross thousands of miles of open ocean in 
the North Atlantic and Northern Pacific against a very, very dangerous threat. 
Because of that, we had what most people considered an open ocean strategy. And 
yet the real job that we were trying to do was to get close to the enemy's coast so 
that we could project power ashore, either through air strikes, missile strikes or 
gunfire support, to be able to make our influence felt on the battlefield where things 
were going to be decided. So when the Soviet Union went away, it meant that we 
were now able to cross those thousands of miles of open ocean and get to within 

6 Protection of the Environment During Armed Conflict 

20 or 50 miles of anybody's coast. And, we could come right up against their 
territorial waters. But, that is a much more complex environment and the things 
that we would be doing there, in shallow waters close to the coastline, were 
obviously going to have a much greater effect upon the local environment. And, 
it heightened our sensitivity to that concern. 

The second thing that happened obviously was the Persian Gulf War. I think 
two things in that war really brought awareness of the environment home for us 
in the Navy. The first was the fact that the Iraqis at one point dumped hundreds 
of thousands of gallons of crude oil into the waters of the Northern Persian Gulf. 
As a result, there was tremendous damage to marine life; there was damage to the 
coastline, and it also had some very serious implications on the way we were able 
to operate our ships. If you bring a ship into water that is heavily contaminated 
with crude oil, it is going to foul your pipes. It is going to particularly foul your 
condensers and you will not be able to operate. The other thing was that the Iraqis 
intentionally detonated hundreds of oil wells in Kuwait. It was the sight of those 
flames and the heavy black smoke, day-in and day-out, for months, polluting the 
entire northern Gulf area that brought home to many of us just what a tragedy war 
can be for the natural environment. From a personal level, and as Jack has 
mentioned, I was the Commander of the Standing Naval Force Atlantic, and what 
happened to me was that we got "lost" and ended up in the Adriatic for a year. 
While I was there I operated with Admiral Bill Wright who was embarked on the 
carrier Saratoga at the time. My task in the Adriatic was enforcing Operation Sharp 
Guard, which is the United Nations and NATO embargo of the former Yugoslavia. 
When one thinks of that job, one normally thinks of us going aboard ships and 
searching for arms or tanks, mortars, shells, AK 47s, whatever. But, a major 
concern was oil -the importation of crude oil and fuel oil to Serbia through its ports 
on the Montenagran coast. As a matter of fact, just sixteen months ago there was 
one instance where a 65,000 ton Russian ship, the Ledo II, tried to break the 
embargo. Fortunately, and thanks to the professionalism and bravery of a small 
group of British and Dutch Marines, we were able to conduct a fast rope assault 
from helicopters on to the Ledo II, and at gunpoint take control of the ship and 
turn it around just a few miles from Yugoslavian territorial waters. However, I 
would point out that there are things that a ship can do to make it impossible for 
you to get those marines on board. And, if you can't land the people by helicopter 
it becomes very, very difficult to stop a determined Master who wants to break 
that embargo. A 65,000 ton ship tends to be difficult to stop for a 5,000 ton 
destroyer. We call it the law of gross tonnage and it has nothing to do with the 
juridical law; its more of a physical law. What it means is that for a Master who is 
willing to risk some damage to his ship and some casualties to his crew, if he puts 
his ship at 18 knots and heads straight for the coast, there's very, very little you 
can do to stop him unless you shoot at him. Now I don't think we would use high 

Welcoming Remarks 7 

explosive shells. First off, I don't think that warning shots against a determined 
Master are going to deter him. And, even some shots into the superstructure 
probably will not. What happens when you put high explosive shells into a cargo 
of crude oil? Some people believe it will cause the ship to explode. I happen to 
think that will not be the case. You will just put some holes in the side. But, 
whatever you do, you are going to get some leakage of oil into the water. And, for 
me, I felt very strongly that I was willing to do whatever was necessary to stop any 
type of ship from getting through. It certainly raised the possibility, the very 
disagreeable possibility, that there would be serious environmental 
contamination. That was a major concern for the Italian government at the time 
just as it was for the operational commanders enforcing the embargo. 

We, the commanders, were particularly concerned after we talked to the shore 
establishment, the supporting staffs about it and they said it was our decision and 
our responsibility, so good luck. We felt that was a somewhat cavalier attitude and 
that there was more we could do about it. I am very pleased to relate to you that 
we were able to get the staffs to make arrangements to ensure that there would be 
procedures and assets, i.e., tugs, and oil containment booms, that could be brought 
out at very short notice so that we could minimize whatever environmental impact 
that might result from our operations. But, it certainly brought home to me the 
fact that military operations and the environment are today closely interconnected. 
So you have a very current, a very relevant, and a very important topic before you. 
I look forward with a great deal of interest to the deliberations of this Symposium. 
So, once again, I would like to welcome you to the Naval War College. We are very 
proud to be able to host you for this very important endeavor and I look forward 
to seeing more of you. Thank you again. 

Chapter II 
Opening Address 

The Honorable Conrad Harper 

Professor Gruna wait's Introduction of the Honorable Mr. Conrad Harper 

Professor Gruna wait: We are very fortunate indeed to have with us this morning 
as our keynote speaker, Mr. Conrad Harper, the Legal Adviser of the 
Department of State. If there is a testament to the importance of the work we 
are doing, it is that Mr. Harper has found the time to break away from the State 
Department to join us this morning. Mr. Harper, we are just absolutely delighted 
that you are, in fact, here and able to join us. 

Mr. Harper did his undergraduate work at Howard University and earned his 
law degree from Harvard. He was engaged in the private practice of law from 1971 
to 1993, with the New York City law firm of Simpson, Thatcher and Bartlett. His 
specialization was in commercial litigation, but he did many other things along 
the way, for example, visiting lecturer at Yale Law School, consultant at the 
Department of Health, Education and Welfare, and working many years in various 
capacities with the NAACP and it's Legal Defense and Education Fund. He is a 
member of various Councils, including the council of the American Law Institute, 
a Fellow at the American Academy of Arts and Sciences, a member of the Council 
of Foreign Relations, and a Trustee of the Nelson Cromwell Foundation. Mr. 
Harper assumed his duties in the Clinton Administration on the 24th of May, 

I had occasion to meet Mr. Harper a little more than a year ago. I had been given 
the unenviable task of briefing Mr. Harper and his staff with respect to the 
Vincennes incident and the destruction of Iran AirBus Flight #655. At that time, 
Mr. Harper and his staff were preparing for the Iran AirBus case before the 
International Court of Justice. Now I had occasion any number of times to talk 
about the Vincennes, in the context of rules of engagement, to a variety of audiences, 
national and international. But, this was the first time I was subjected to cross 
examination and let me tell you, it was a very interesting evolution. But, I learned 
something from Mr. Harper at that time and I can attest certainly this morning 
that our speaker is indeed a quick study and an insightful, precise, and 
consummate lawyer and a great gentleman. Ladies and Gentlemen, I give you our 
keynote speaker, Mr. Conrad Harper. 

Harper 9 
The Honorable Mr. Conrad Harper, Legal Adviser, U.S. State Department 

Mr. Harper: Thank you very much Professor Grunawalt for that more than 
pleasant introduction. It is always delightful to hear oneself described in such a 
way that applause would emanate at least from one's mother if not from anyone 
else. I am particularly pleased to be in this room because before we came in this 
morning for this session I went around the entire room and looked at the titles of 
the many volumes on the shelves that line these walls. Although it is an 
extraordinary collection in its own right, I know it is just the leavings, if you will, 
of a major library here at the War College. But nonetheless, it's an extraordinary 
group of volumes gathered over the last hundred years dealing with history and 
political science and warfare. And, many of them are in dust jackets of the 1890's 
and early 1900's. So to some of us who have a little touch of bibliomania, it was 
just extraordinary to see what has been placed here to grace this historic conference 
facility. I am grateful for this particular environment. 

I am particularly glad to be with our distinguished colleagues in the armed 
forces, government, the academy, and the sciences for what promises to be a most 
stimulating conference on the protection of the environment during armed 
conflict and other military operations. The knowledge and scholarship and 
experience that the group assembled here brings to the subject is impressive. And, 
I am grateful to Rear Admiral Stark and Dean Wood for the gracious invitation to 
take part in these proceedings. 

The U.S. Government has long taken a very serious interest in this subject. The 
Departments of State and Defense have, for some time now, participated actively 
in international discussions regarding protection of the environment during 
military operations. Consensus, as we all know, is not easy to forge, but I believe 
that our efforts in recent years have been productive, and have beneficially raised 
the profile of this issue in the international community. 

Since Rear Admiral LeGrand will soon follow me to frame the issues to be 
discussed in the coming days, I thought I might address in more selective fashion 
the events of the Gulf War, which in recent years, have tended to dominate 
discussions in this field. Specifically, I would like to share with you what lessons 
I am and am not inclined to draw from Iraq's wanton damage of the environment 
during the Gulf War, and the international community's response to Iraq's 

The facts are not in dispute. Iraqi forces deliberately exploded more than 700 
oil wells in occupied Kuwait, and released more than one million tons of crude oil 
into the Persian Gulf. We have yet to completely fathom the consequences of this 
massive, reckless poisoning of the environment. The Gulfs ecosystem has been 
disrupted for years to come, for as long as twenty years according to some experts. 

10 Protection of the Environment During Armed Conflict 

The oil fires lighted by Iraqi forces produced a torrent of pollutants which cast a 
toxic pall over Kuwait and soiled the skies of other Gulf States as well. 

This tragedy fueled an already existing debate among lawyers, scientists, policy 
makers and military officials over the adequacy of the international legal regime 
which is intended to protect the environment from unjustified damage during 
times of armed conflict. 

On one side of the debate are those who believe that the legal regime requires 
substantive modification. Some suggest the need for the wholesale creation of new 
international instruments. Others advocate a range of smaller-scale changes which 
would ostensibly clarify and expand the reach and effect of existing laws. Among 
the changes suggested are expansion of the scope of Additional Protocol I to the 
1949 Geneva Conventions and the 1977 Environmental Modification Convention 
(ENMOD). Additional Protocol I, to which the United States is not a party, 
prohibits the use of methods of warfare which are intended, or may be expected, 
to cause widespread, long-term and severe damage to the natural environment. 
Parties to the ENMOD Convention undertake not to use environmental 
modification techniques having widespread, long-lasting or severe effects as a 
means of destruction or injury to another party. 

In addition to expanding the scope of Additional Protocol I and the ENMOD 
Convention, it has also been suggested that their terms be clarified and 
harmonized. It has been said that the terms "widespread, long-term and severe" on 
the one hand, and "widespread, long-lasting, or severe" on the other are vague and 

Others have proposed modifying the proscription against destruction of 
property not justified by military necessity and the related principle of 
proportionality to include explicit references to environmental damage among the 
categories of damage to be weighed in the law of war calculus. It has been suggested 
that these legal principles are currently formulated in a way that tips the scales in 
the favor of military action at the expense of damage to the environment. 

The other side of this debate takes the view that the existing legal regime is 
substantively adequate and sufficiently protective. From this perspective, existing 
laws properly balance the need to protect the environment against the legitimate 
prerogative to engage in armed conflict under certain circumstances. It is the view 
of individuals in this camp that further development of the legal regime to protect 
the environment in times of armed conflict should focus on collective efforts to 
appreciate the not-insignificant scope and reach of existing laws, to disseminate 
and internalize these norms and to enforce them vigorously and remedy their 

Interestingly, the events of environmental consequence that occurred during 
the Gulf War have been cited as instructive examples both by those who believe 
that substantive changes in the legal order are necessary and by those who do not. 

Harper 1 1 

I must say that I belong to the latter camp. In my view, the crying need to enforce 
current norms far outweighs the need to modify or expand the existing legal 
regime. We should distinguish between two distinct legal imperatives which 
inform this discussion: The imperative to establish and articulate rights where 
appropriate, and the imperative to enforce those rights and to remedy, when 
necessary, their violation. 

History suggests that lawmakers, whether judges or legislators, are 
understandably more inclined to embrace discussions of rights than to confront 
sticky, practical, and often times seemingly intractable questions embedded in 
issues of compliance and remedies. 

One of our challenges, I think, is to resist this inclination, for rights divorced 
from a commitment to enforce them and to remedy their violation are of limited 

The question of rights and liabilities is, in fact, not even always at issue. That 
Iraq violated international law by setting fire to oil platforms and dumping oil into 
the Gulf appears, in my view, beyond dispute. International law prohibits the 
destruction of property not justified by military necessity, prohibits military 
operations not directed against legitimate military targets, and prohibits military 
operations that cause incidental damage clearly excessive in relation to their direct 
military advantage. By any reasonable measure, Iraq's actions violated these 
proscriptions. Many observers have noted that the oil platform fires were ignited 
at a point when the conflict was essentially concluded, and therefore, not even a 
pretense of military justification existed for these Iraqi actions. 

Consequently, the environmental events of the Gulf War are principally a case 
study in the difficulties of fashioning remedies and giving meaning to those 
international legal norms that are intended to protect the environment. Let us 
then take a closer look at the reaction of the world community to Iraq's destruction 
of the environment and ask whether it is serious, whether it is sufficient, and what 
lessons it suggests for the future. 

U.N. Security Council Resolution 687 asserted Iraq's liability under 
international law for all direct loss or damage stemming from its unlawful invasion 
and occupation of Kuwait. The Resolution makes particular reference to 
"environmental damage and the depletion of natural resources" as if to emphasize 
that these elements of damage are not to be overlooked, and are to be treated 
together with more traditional indicia of damage and injury to persons, their 
livelihood and their property. 

The precedential value of this Resolution should not be overlooked. It is, 
arguably, the first time that the international community has formally recognized 
wartime environmental damage to be compensable. On the other hand, Resolution 
687 does not work any change in the law of war on environmental damage. And, 
it bears noting that under;w$ ad bellum, under international law relating to the use 

12 Protection of the Environment During Armed Conflict 

of force, Iraq is liable for environmental and all other damage directly caused by 
its invasion whether or not it violated the law of war. 

In accordance with Resolution 687, the U.N. Compensation Commission was 
established to administer the claims process and to make payments to claimants 
from a fund that was to be capitalized through a 30% levy on Iraqi oil exports. 
Unfortunately, these oil exports have not resumed because of Iraq's failure to 
comply with applicable U.N. Security Council resolutions; as a result, the 
Compensation Fund's balance is currently only about ten million dollars, which 
has been contributed by the United States and other countries (mostly from frozen 
Iraqi assets) to begin the claims process. I should note, for the sake of comparison, 
that we are estimating that approximately 200 billion dollars in claims will be filed 
with the Compensation Commission before the process is concluded. 

The claims have been divided into subgroups and given priority on the basis 
of urgency. In December 1993, the first panel of the Compensation Commission 
began working on cases involving claims of death and serious personal injury. 
Other panels are giving priority attention to the claims of hundreds of thousands 
of foreign workers who were compelled to leave Iraq and Kuwait at great personal 
loss. Individual claims of less serious personal injury and property damage have 
followed, as have commercial claims. To date, the Commission has approved some 
355,000 individual awards, totaling approximately 1.4 billion dollars. 
Environmental claims will be considered at a later point in the process, and the 
Commission has set a February 1997 deadline for their submission. 

The reason for the long horizon for environmental claims is that it will take 
some time to assess accurately the long-term environmental consequences of Iraq's 
actions, and that until such assessments are concluded, effective, comprehensive 
consideration of environmental claims cannot occur. Of course, so long as the 
Compensation Commission's financial resources are not sufficient to cover the 
awards it issues, decisions will have to be made regarding the allocation of available 
funds, and the first priority will probably be to compensate individuals for direct 
personal loss rather than governments, which would likely be the principal 
claimants for environmental damage. 

Let me hasten to add that there are limitations in the Gulf War example which 
affect the extent to which it may be considered a paradigm. 

The Gulf War presents none of the shades of gray one would expect to find in 
a typical scenario implicating international legal protection for the environment 
during armed conflict. Iraq's actions reflect complete vindictiveness; unlike the 
typical case where there may be debate over the question of military necessity and 
justification, Iraq's conduct was, essentially, without any pretense of justification. 

The Gulf War example is also atypical in that the perpetrator of the 
environmental damage was militarily defeated and, save for the operation of 

Harper 13 

multilateral sanctions, has substantial resources that can be used to satisfy claims 
arising from its conduct. 

In short, the Gulf War example does not speak to the more difficult, more subtle 
cases where the intent of the party doing damage to the environment is less clear 
than it was in the case of Iraq. It is these cases that peculiarly challenge the 
international legal order: cases where the environment is not deliberately targeted 
for destruction; cases where environmental damage is incidental to achieving a 
military objective. 

Changes to the law, to the existing legal order, will not, in my view, make such 
hard cases any easier, because their difficulty ultimately inheres in the nature of 
their circumstances. To the extent that widespread agreement on new laws and 
standards could be reached, and I have my doubts, the resulting agreement might 
likely resemble a lowest common denominator, decidedly unhelpful in dealing 
with hard cases. 

Or, in order to garner consensus, a new agreement might well be a model of 
ambiguity, the value of which could also fairly be questioned. In this regard, I note 
the debate that has occurred in the wake of the Gulf War over whether Iraq's 
damage of the environment constituted "widespread, long-term and severe" 
damage in violation of Article 35(3) of Additional Protocol I. Although Additional 
Protocol I has received considerable support in the international community, what 
exactly constitutes "widespread, long-term and severe damage" is a question that 
continues to perplex commentators and to defy shared understanding. One might 
therefore be wary of a process that could very well generate new rules, new 
standards whose meaning would remain fundamentally in doubt. 

In sum, I am unconvinced that new laws would help us answer difficult 
questions; the more likely outcome is that they would merely inspire continued 
debate on somewhat different terms. 

To this point I have made reference only to civil remedies. Criminal sanctions 
are, of course, another tool, a potentially powerful tool, to enforce international 
norms. Whether the international community will one day elect to bring to bear 
the force of criminal sanctions against those who perpetrate gross and unjustified 
environmental damage in warfare remains to be seen. In my view, we have not yet 
arrived at the point where the international community is willing to put its 
credibility, commitment, and the full force of its conscience behind prosecutions 
for environmental crimes in much the same way that it has demanded 
accountability in the context of Rwanda and Bosnia. The absence of the necessary 
consensus is to some extent reflected in the continuing international discussions, 
and disagreements, about the appropriate subject matter jurisdiction of a possible 
International Criminal Court. 

These are only a few of the issues to be addressed during our discussions which 
will no doubt enrich our understanding of this important subject. More than that, 

14 Protection of the Environment During Armed Conflict 

these discussions constitute an integral part of our commitment to enforce the 
norms governing the protection of the environment during military operations. 
Through the process of dissemination, by teaching what international law 
requires, the Naval War College is shaping the understanding of the men and 
women of the armed forces in whose hands the integrity of the environment rests 
during military operations as so graphically brought home by Rear Admiral Stark's 
comments this morning. 

Precautionary, ex ante efforts of this sort are crucial if we intend, as a practical 
matter, to protect the environment, and not simply debate liabilities, 
enforcement, and remedies after the fact. By engaging in discussions that may well 
help shape the legal regime, this institution ensures that the perspective of the 
armed forces and the realities of armed conflict are not lost or neglected in the 
process. Only through a commitment to dialogue, education, and consultation 
shall we succeed in building a reasoned measure of respect for the environment in 
the international community. 

And I thank you for this opportunity to share some of my thoughts. 

Professor Grunawalt: Mr.Harper has consented to respond to questions and I 
open up the floor to anybody who would like to begin. 

Colonel Charles Dunlap, U.S. Air Force, U.S. Strategic Command: I would like 
to challenge your assumption that the way the Iraqi's waged war was clearly a 
violation of international law. How is a third world nation supposed to oppose a 
high-tech power that is a high-tech power because it has an industrial base that is 
dumping unbelievable amounts of pollutants into the air? In other words, isn't the 
use of smoke to defeat satellite systems and precision weaponry a legitimate way 
for a third world less-developed nation to resist a high-tech power? 

Mr. Harper: I am glad you asked the question. First of all, I do not agree with your 
premise. More to the point, if Iraq's actions are not condemnable, there is nothing 
worth talking about during this conference. I took Iraq as the clearest possible 
case. I appreciate that by fouling the air and fouling the water it could be argued 
that Iraq was simply engaged in opposing the Coalition arrayed against it. But, 
this was a means so horrific, so disproportionate, so outrageous, that no one has 
come forward, and I understand you not to be doing this, to justify what Iraq did. 
This was an act or series of acts of desperation virtually at the last moment; at a 
time when it could not reasonably be argued that they would in fact slow the 
Coalition's victory over Iraq in the field. 

Harper 15 

Colonel Dunlap: Just a quick follow-up. Doesn't an armed force have the right to 
continue to resist as long as it has the means to resist? Or must it make an 
assessment as to whether or not it can be victorious? Isn't it legitimate to try to 
withdraw their forces from the area of combat? In other words, save what they 
could by obscuring the ability of the Coalition forces to identify their movements? 
In fact, during that period they launched an attack against the Marines. They were 
able to marshal their forces to launch an attack against the Marines advancing 
towards Kuwait City under the obscurant occasioned by the fires of the wells. As 
Admiral Stark said, the fouling of the waters posed a very real operational problem 
for Coalition naval forces. Looking at it from the third world's perspective, how 
can we condemn Iraq when we, as an industrialized nation, have these precision 
capabilities only because we have this infrastructure which is dumping pollutants 
into the atmosphere? 

Mr. Harper: As an abstract matter, of course, one could say that a losing force has 
the right to defend itself as long as possible; to conserve its resources as long as it 
may. But it is not simply the United States that has condemned what Iraq did. The 
world community has condemned it. The U.N. has condemned it. I think it is fair 
to say, and I also think of this when trying lawsuits, it may not be important what 
the truth is; truth is what the jury has decided what is true. And, the world jury 
has decided this issue in a way that is absolutely clear. 

Rear Admiral William H. Wright, IV, U.S. Navy: To my way of thinking, if 
Saddam Hussein had done exactly what he had done and the tide had changed and 
he had become the victor, there would be no jury. There would be no follow-up 
punishment. Isn't this essentially an example of "to the victor goes the spoils?" 
And when you, as the winner, want to find an excuse to continue to extract pain 
from the loser, you can do it. 

Mr. Harper: Again, I appreciate the challenge of your comment, but I don't accept 
either the premise or the conclusion that you advance. I think it's important when 
evaluating a conflict that we try to undertake a measure of justice. The same 
arguments that you put forth, of course, had been raised to challenge the war crimes 
trials in Nuremberg and in Tokyo. If we are not prepared to say, as of 1945-46-47, 
that customary international law already condemned aggression; and if we are not 
prepared to say today that customary international law and convention already 
condemns the wanton destruction of the environment; and if we are not prepared 
to apply the first set of principles to the Nazi's and to Tojo, or the second set of 
principles to Iraq today, then we may abandon any hope that any effort we make 
toward advancing the rule of law is worth a candle. 

16 Protection of the Environment During Armed Conflict 

Professor Leslie C. Green, University of Alberta: I want to follow-up on the 
suggestions that have just been made. If I remember rightly, two things are 
relevant. First, you said, sir, that the world community condemned the Iraqi 
actions as a breach of the law of war. If I remember correctly, the Environmental 
Law and Warfare Conference, held in Ottawa about three years ago, didn't 
condemn it. That was a conference of lawyers, not of politicians. As much as I 
respect the Security Council, it is not a body of lawyers. Second, Additional 
Protocol I, which produced the restrictions on damage to the environment, was 
not relevant. It was not in force during the Iraqi operation, and even if it were, I 
think it provides that an offense only occurs if the intention is to affect the 
environment. But, in a general way, can it not be argued that creating a smoke 
screen, setting fire to oil intentionally released into the water to prevent landings 
and that sort of thing, are all justifiable even though you may be losing and your 
purpose is to just cover your retreat? I suggest that it goes a little far to maintain 
automatically that this was clearly a breach of the law of war as it existed at that 

Mr. Harper: I like the fact that the first three speakers seem to be reading from, 
let us say, conjoined texts. Let me see if I can give yet a third answer. First, the 
fact that lawyers gathered in Ottawa did not see the matter as the Security Council 
and other components of the world community did, is to me, an interesting, but 
not dispositive fact. I do believe the Security Council is a body of law though not 
a court and not a group of lawyers as such. But, it is operating within the confines 
of a legal system under the Charter, and therefore, its statements with respect to 
this subject are entitled to a good deal of deference from us, at least to the extent 
of a clear recognition that what Iraq did was beyond the pale. Indeed, none of us 
can cite an example prior to 1991, that would at all be clearly relevant to what Iraq 
had done under the circumstances. 

Second, it seems to me that any person who is fighting any kind of war will want 
to argue that any action taken in regard to defense is justifiable. And to some extent, 
the discussion is rhetorical rather than substantive. There will always be somebody 
around who will make an argument of justification for an action deemed to be 
necessary under the circumstances. But, it is the function of reason under the 
circumstances that I think is decisive here. If we are not prepared to endorse the 
proposition that at some point the befoulment of those waters and the befoulment 
of that air was not legally beyond the pale, then we may as well decide that the 
enterprise in which we're all engaged, which is to bring a system of international 
law to bear on questions of armed conflict, is simply an irrelevant exercise only fit 
for discussion and not for implementation. 

Harper 17 

Vice Admiral James H. Doyle, Jr., U.S. Navy (Ret.): I never had the opportunity 
before to cross-examine the Legal Adviser of the State Department, so I better take 
it. I want to approach it from a little different perspective and get your views. I 
think what you are hearing from Admiral Wright and Colonel Dunlop is the 
dilemma which an operator is faced with when he has to make a decision in those 
shades of gray cases. Since, in this particular case, the standard of widespread, 
severe and long-term is not knowable and you mention that claims cannot even 
be approached or settled at this point, maybe we are asking the wrong question. 
Maybe the question should be more oriented toward military justification. You 
have got to have some standard there and the operator at sea is probably not going 
to get instructions other than "use your own best judgement." It is going to be up 
to him to make a decision, so what are your views on that? 

Mr. Harper: If I understand you correctly, you are inquiring whether military 
justification is the only screen through which we put this question, as opposed to 
considering a competing environmental objective. 

Vice Admiral Doyle: How can we consider the unknown competing 
environmental effects at this point? 

Mr. Harper: I think the situation is that we can consider what is unknowable in 
the sense that we may not know precisely its contours, but we know enough to 
know that it is a catastrophe. It is a little bit like having been hit both by a train 
and by a car and trying to sort out how much damage is attributable to one and 
how much by the other. The fact is that you were damaged and to some degree the 
damage was inextricable. But, you are able to say, in a rough way, that what 
happened was wrong. Well, clearly I think that was the situation here. It is not, to 
a precise extent, known to us to what degree the environment was harmed. But, 
there is no doubt that the harm was substantial. And, if that is the case, foreseeable 
environmental harm is a fair counter to put into the balance test as against military 
justification to see whether or not justification carries the day. 

Professor Michael Bothe, Johann Wolfgang Goethe University, Frankfurt, 
Germany: Just to assure you, I am not reading from the same paper as the previous 
speakers. Three comments. I was present at the meeting in Ottawa, mentioned by 
Leslie Green. I thought it was not the purpose of that meeting of experts to come 
to any conclusion condemning anything or anybody. If that were the purpose of 
the meeting, it was probably happening at the wrong meeting. But there are certain 
elements in the discussion of the Ottawa meeting which I strongly disliked. This 
was an attitude of benign neglect to what had happened in the field of 

18 Protection of the Environment During Armed Conflict 

environmental law during the last twenty years or so. In this respect I certainly 
disagree with my good friend Leslie Green. 

The second point pertains to the Security Council. What is the effect of 
Resolution 687? I think it is quite clear that the damage which has to be 
compensated by Iraq under that Resolution is not damage caused by a violation of 
the laws of war, it is damage caused by the fact that Iraq committed an aggression. 
Of course, there is a standard of unlawfulness that is quite different. So the question 
of whether this was widespread, long-lasting and severe, is for that purpose, 
irrelevant. I hope this is clear. I am trying to sell this idea to the U.N. working 
group which is dealing with that matter of which I happen to be a member. My 
question to you, sir, is, were you not pleading with your last remark in a little bit 
of the opposite direction of what you said to begin with. The issue of what are the 
values competing with military advantage which would have to be taken into 
account when a particular decision is made to attack or not to attack, or to attack 
in a particular way. I was most impressed to hear earlier this morning that this was 
a matter considered prior to measures being taken to enforce the U.N. embargo in 
the Adriatic Sea. Now, if we have a rule, which is as general as the principle of 
proportionality, you leave the balancing to the commander. It is the commander 
who is required to balance competing values in the particular case. Could we assist 
the commander by trying to further develop the law in order to make some of those 
issues a little clearer? I agree the principle is there, that the principle is good, but 
there should be a little bit more detail added to that principle in order to make it 
more workable. What you said in your last comment, I think, seems to meditate 
for that approach. Thank you sir. 

Mr. Harper: Well, I hope I have not contradicted myself. I had intended to say 
two things. One, that as part of our discussions over the next several days, we are 
going to be factoring in the question of environmental damage as part of the law 
of war calculus. I think I said that earlier and I thought I was repeating it in 
somewhat different words a few minutes ago. 

But, the second point, which is also important and stimulated by your remarks, 
is that our search for details is carried on in a worrisome way. We shall find 
ourselves spinning more wheels without necessarily learning more in the process. 
In that event, I submit it will always be the commander who is going to have to 
make decisions. And, he will not have before him a blueprint that will make it easy 
in very tough cases. There will be principles; there will be laws, if you will, but 
they won't dictate a result in a certain given circumstance. Human judgment will 
have to be brought to bear. My own sense is that over time, cases will illustrate the 
principles that will have already been established. But, I am not persuaded that 
undertaking a further conference to see whether we can elaborate those details now 
would be the best use of our collective energies. 

Harper 19 

Professor Paul C. Szasz: Two comments. One, again, back to the Ottawa 
conference three years ago, I too was a participant. Let me read just one paragraph 
from the chairman's conclusions: "The conference noted that grave damage resulted 
from Iraqi actions during the Gulf War, for example, in setting oil fires and releasing oil 
in the Gulf There was a shared view that important provisions of custom and conventional 
law had been seriously violated. " I think for a basic academic conference, that was a 
strong statement. In effect, the conference condemned the actions the Iraqi's had 
committed as unlawful. 

The other comment, I think, is a slight quibble with what you said before. You 
said that the reason the compensation fund has not yet started operating is because 
of Iraqi non-compliance with Security Council resolutions. I think, actually, the 
reason is that there is a resolution under which Iraq could sell about 1.5 billion 
dollars worth of oil, regardless of compliance with other resolutions, but they 
simply refuse to do so because they do not want money to flow into the 
compensation fund. 

Mr. Harper: I accept your modification and it's quite correct. There is a very 
special resolution for that purpose. 

Professor Szasz: That means that even if they start complying as they hope to 
comply and these actions are lifted, they still may be reluctant to release that 30% 
to the compensation fund. So that is almost a separate problem from the other 
question of compliance. 

Mr. Harper: That is true. Of course, the compensation fund is, in fact, operating. 
But, it cannot make substantial awards because the funds available are so small. 
Let me backup a moment and say that I am beginning to think I was the only 
person in the room who did not attend the Ottawa conference. Second, I waited 
until this time to call on you so you could read the paragraph that, in fact, nailed 
the coffin shut on this subject. But third, I do think that it is very, very important 
to recognize that the final statement did accord with the general thrust of my 
remarks; that the world community did condemn what Iraq had done. 

Professor Adam Roberts, Oxford University: As a non-lawyer, I hesitate to put 
words into the mouth of the Legal Adviser and I am sure he will be able to take 
them out again. But it seems that some of those present, especially as reflected in 
the initial questions, may have been making slightly heavy weather, as many 
lawyers have, of the legal issues raised by environmental destruction in the Gulf 
War, by putting so much emphasis on those provisions of Additional Protocol I 
and the ENMOD Convention which you mentioned, that specifically address the 

20 Protection of the Environment During Armed Conflict 

environment. And, I took your initial presentation to state something I am going 
to put much more crudely than you did, but thereby to invite your comment on 
it. That is, in order to assess the legality of what Iraq did in the Gulf War, in the 
incidents you have mentioned, you do not need to get to Additional Protocol I or 
the ENMOD Convention at all. The key provisions that were often not mentioned 
in many discussions about the legality of environmental destruction in the Gulf 
War, were those you alluded to in a general way. For example, Article 147 in 1949 
Geneva Convention IV, the grave breaches clause, which mentions wanton 
destruction not justified by military necessity, and various other provisions of 
conventional law going back to the Hague Rules. It seems to me that many people, 
especially at the time when there were such apocalyptic predictions about 
environmental consequences, were lured into discussing the wrong conventions 
because their titles mention the environment. Maybe it is better that they stick to 
old rules and to interpret them because they cover the case better, and because they 
deal with the point that was raised in the question of whether in fact this is wanton 
destruction and despoliation of resources as much of as on the question of its actual 
subsequent, and in some cases, later incalculable impact upon the environment. 

Mr. Harper: I embrace what you have said with one modification, I would have 
called your remarks elegant rather than crude. Certainly, it is the case that going 
back to Hague 1907 and coming forward, one could find that there was violation 
of long established principles of international law in what Iraq did. 

Professor Bernard H. Oxman, University of Miami: As you know, sir, 
considerable public attention has been paid in the last decade to your job 
description. There was a panel of the American Society of International Law that 
I served on that endeavored to address that issue. I think that, in part, the line of 
argument that you developed depends in large measure on who - and under what 
circumstances - is performing the risk-benefit analyses that are required. Many of 
us have learned from experience that micro-management of military operations 
conducted thousands of miles away can produce undesirable results. The question 
is, it seems to me, who should be involved and at what point, in making decisions 
regarding targeting involving potentially catastrophic environmental damage. 

I guess the question is whether you are satisfied, at least in terms of the 
organization of the United States Government, that an appropriate balance has 
been achieved on this issue. It is, of course, laudable that commanders in the field 
making these decisions, will weigh the factors prudently. But, I think some people 
at least would feel more reassured if they felt, not only in the case of the United 
States, but in the case of other governments as well, that balancing is being done 
at an appropriate policy level, with appropriate input by lawyers who are 
professionally trained to be detached as you had averred to. 

Harper 21 

Mr. Harper: I think the point is an excellent and important one. Certainly, it is 
fair to say, and I can say this in the presence of Jack McNeill, who on many 
occasions not only illustrated for me but instructed me in various matters, that we 
do try hard, at least in this Administration, to involve lawyers at an early stage in 
the matters that we believe have significant legal implications and major policy 
concerns. There is a fairly orderly methodology followed by the Legal Adviser for 
the National Security Council, the Assistant Attorney General for the Office of 
Legal Counsel, the General Counsel for the Department of Defense, the General 
Counsel for the CIA, and the State Department's Legal Adviser, for assembling 
from time to time, or through surrogates, to discuss issues that are of that quality. 
I cannot represent to you that we have reached Nirvana on this process. But, I 
think it has worked better and better as we have learned to play together, to use 
the favorite term of an elementary school teacher I very much liked. As we play 
together better, I think the process becomes a better one. 

Professor Christopher Greenwood, Cambridge University: I would like to 
assure the Legal Adviser that I was not at the Ottawa conference either, which may 
go a long way to explaining the clarity of its conclusions. I would like to be 
controversial and say that I agree with the Legal Adviser's view that what Iraq did 
in the Gulf was a violation of the 1907 Hague Regulations. I do not think there is 
any need or any right to look at Additional Protocol I in this context because it 
clearly was not in force. And, I do not regard those provisions as declaratory of 
customary law. What I do think is important is that the reason why Iraq was clearly 
in violation is that the motive and the purpose that Iraq had was largely vindictive. 
Particularly in relation to the firing of the oil wells, it was an act of destruction 
designed to shock the world. Any military advantage that might have arisen was 
largely incidental. I am quite sure it was incidental in the minds of the Iraqi high 
command when they took the decision to do what they did. But, if we look at this 
as a precedent for the future, I think it would be a great mistake to be locked into 
the mind-set of thinking that the act of releasing a million tons of oil is necessarily 
a violation of the laws of war. I do not think that is necessarily the case at all. If 
Kuwait had released that oil into the Gulf as part of a desperate defensive measure 
to stop Iraqi amphibious operations in the original invasion, then I think we would 
come to a very different conclusion, applying the law that was in force at the time. 

Mr. Harper: I can only add, it is great to hear that someone agrees with me. More 
to the point, I accept the counter-example, which is one of the reasons why the 
issue of getting into details as suggested by another speaker is extremely hazardous. 
We do not know what the future will present. We can be confident that it will not 
present easy cases and, therefore, we cannot escape that most tragic and yet, in a 

22 Protection of the Environment During Armed Conflict 

real sense, that most important aspect of human life; that is to say, the application 
of our judgments to the facts at the time. 

Professor George K. Walker, Wake Forest University: One quick question and 
comment. That is, we have to keep in mind the mirror image principle in all this. 
And that is, we cannot just simply look back and say the law of armed conflict is 
of a prior era; that we have to consider the possibility that there is law developing 
and developing even now. Is that your position? 

Mr. Harper: Absolutely, the law is not only alive; it now and then kicks. We have 
to know that it is not a dead science. It is a lively art and we must bring to it a sense 
that it will increase in our lifetime and for generations to come. 

Professor Grunawalt: We have run out of time. I want to thank the Honorable 
Mr. Harper. It's obvious, from the discussion we have just had, that his was a 
superb keynote address. And, I think it is now clear that we have many things to 
do this week and I thank each one of you who have raised issues and discussions. 
We have just begun to see the tip of the iceberg, a quick glimpse of the issues that 
we will be hearing from our panelists. And, I know that we will get into 
considerable debate and discussion on these topics. Mr. Harper, one more time, 
thank you so much for providing the tone, the necessity of this debate, and the 
intellectual content of your address. Thank you very much. 

Framing the Issues 

Rear Admiral Carlson M. LeGrand, JAGC, U.S. Navy 

Professor Grunawalt's Introduction of Rear Admiral LeGrand 

Professor Grunawalt: Fm very pleased to introduce an old friend, Rear Admiral Biff 
LeGrand, the Deputy Judge Advocate General of the Navy. Admiral Le Grand has the 
task this morning of framing the issues that we are to address during this Symposium. 
I gather from the questions and answers and the spirited discussion following Mr. 
Harper's remarks that what you have to tell us will fall on very, very eager ears. 

But let me introduce our speaker. Admiral LeGrand is a native Californian, 
from Hollywood, and a graduate of the University of Southern California. He came 
to the Navy via the Officer Candidate Program. As an unrestricted line officer, he 
served on the USS Hassiampa, a fleet oiler, in the Gulf of Tonkin off Vietnam. He 
left active service to attend law school at the University of California Western. 
Following graduation, he was admitted to the practice of law in California. He was 
recalled to active duty in 1971, but this time as a judge advocate. He served in a 
variety of billets including Naval Legal Service Office, Guam, and Naval Air Test 
Center in Patuxent, Maryland. Then it was back to school again to get his Master 
of Laws degree at Georgetown University. Thereafter, he served as Special 
Assistant to the Assistant Secretary of the Navy for Manpower and Reserve Affairs. 
Following a tour of duty as the Force Judge Advocate for Submarine Forces, 
Pacific, he returned to Washington, this time for duty in the Office of the Chief 
of Naval Personnel. In 1992, he assumed command of the Navy Legal Service 
Office, Southwest, in San Diego. Selected for promotion to flag rank in April 1994, 
Admiral LeGrand assumed his duties as the Deputy Judge Advocate General of 
the Navy the following month. Admiral LeGrand is also the representative for 
Ocean Policy Affairs within the Department of Defense and in that capacity works 
very closely with Jack McNeill. Without further ado, ladies and gentlemen, it is 
my great pleasure to introduce the Deputy Judge Advocate General of the Navy, 
Rear Admiral LeGrand. 

Rear Admiral LeGrand: Thanks Jack for that introduction. I've also got to say 
that for a grandfather, you are looking pretty chipper. For those of you who don't 
know, Jack became a grandfather about two weeks ago. His son Kurt is one of our 

24 Protection of the Environment During Armed Conflict 

young judge advocates in the Naval Legal Service Office, Mid-Atlantic, in Norfolk. 
Kurt's wife, Robin, gave birth to Jordan Kate. Congratulations! Jack mentioned 
that I was from Hollywood and he also was telling me before the meeting, that if 
I had time on Saturday night to tune my television to NBC at 8:00 and I would 
see "JAG", the series. The young hero, a good looking guy, is the spitting image 
of Kurt. I've seen the pilot, and Jack may be right about Kurt, but if you want to 
see who the JAG flag officer is; to know who this obsequious, toadying, politically 
oriented animal is.... Well, you know that little box at the end of the credits that 
says the program does not depict any real person, living or dead? That one applies. 

Let me welcome all of you to the Symposium. As I look over this audience, and 
as I was overwhelmed by the questions and comments following Mr. Harper's 
opening address, it's obvious we have an incredibly talented group of people here. 
People who are leaders in their respective fields of expertise, including some great 
folks from each of our five Services, from State and from academia. And, we're 
particularly pleased to have representatives of foreign nations here. This 
Symposium certainly offers a great opportunity for us to actively engage over the 
next couple of days in a discussion of a discipline that has emerged as one that 
cannot be ignored; one that must be considered in our operations and planning. 
My assigned mission, as Jack put it at the podium this morning, is to help frame 
some of the issues that will likely be a part of that discussion. And believe me, for 
an old personnel lawyer, that's a daunting mission. Thank you very much Jack. 

I think it certainly comes as no surprise to you in this audience that war is often 
regarded as being unkind to the environment. As my old friend Col. Jim Terry, 
former Legal Advisor to the Chairman, Joint Chiefs of Staff, said: 

Inherent within the laws of armed conflict is the understanding that even the most 
sophisticated and precise weapons systems will exact a price upon the environment. 
While some collateral damage may be inevitable, there's a growing understanding 
that the international community's common interest is to minimize environmental 
destruction consistent with the exercise of legitimate measures of armed conflict. 

There's a growing recognition that environmental devastation produces 
additional security concerns by depleting natural resources, by causing 
competition for scarce resources, and by displacing entire populations from 
devastated areas. 

Over the next couple of days we are going to be discussing numerous ways in 
which the law of armed conflict operates to protect the environment. Further, we'll 
examine perceived benefits and deficiencies of the current international legal 
regime and debate whether new international legal protections are necessary. 
Hopefully, the insights gained from our discussions during this Symposium will 
help us to understand how to maximize both environmental protection and 
national security. 

LeGrand 25 

While reducing collateral damage will be one focus of the discussion, we will 
also have to recognize that, historically, the environment at times has been both 
an intentional target of warfare and subject to manipulation as a means of warfare. 
Fire and breach of dams to cause flooding to gain military advantage have been 
the most common methods of intentional environmental destruction. We should 
also note that we stand on the threshold of further technological innovation which 
may well result in the development of other, more terrible forms of environmental 
destruction. There are, if my figures are right, currently 72 major dams and 297 
nuclear powered electrical generating stations around the globe which provide 
potential environmental targets that could cause unprecedented devastation. 
Finally, as we all know, nuclear, chemical and biological warfare has the potential 
to rain havoc on the environment. Environmental manipulation has also been used 
on occasion as a method of warfare. During the Franco-Dutch War in 1672, the 
Dutch were successful in stopping French advances by cutting a series of dikes to 
create the Holland Water Line. Likewise in June 1938, the Chinese dynamited a 
dike on the Yellow River to stop the advance of Japanese troops during the 2nd 
Sino-Japanese War. However, this action not only drowned several thousand 
advancing Japanese troops, it destroyed 1 1 Chinese cities, 4,000 villages and killed 
several hundred thousand Chinese. It also destroyed millions of acres of farmland 
and left several million Chinese homeless. 

During WW II, the British destroyed two major dams in the Ruhr Valley, 
causing extensive damage and resulting in the death of approximately 1200 
German civilians. The United States has been criticized for the use of defoliating 
agents during the Vietnam War, and for unsuccessful attempts to create 
rainstorms, to gain tactical advantage. On the other hand, it should be noted that 
at the end of the Vietnam War, the United States removed its naval mines from 
North Vietnamese waters and took other steps to safeguard the post-war 
environment. In contrast, the pictures of the devastation caused by Iraq in 
releasing an estimated 4-6 million gallons of oil in Kuwait and setting fire to some 
732 oil wells are certainly etched into all of our minds. 

The first session of the Symposium is going to focus on the strategic imperative. 
What impact on the environment must the military be allowed in order to win 
across the spectrum of conflict? Issues of readiness, training and actual operations 
will need to be addressed. The flip side to that, which is an examination of the 
threat posed to the environment by these operations, will also be addressed. These 
issues will then be analyzed under the existing legal framework; first as to 
protecting the environment during international armed conflict, and then as to 
protecting the environment during non-international armed conflict operations 
involving the use of force in military operations other than war. 

The law of armed conflict is perhaps the starting point here. Historically, the 
law of armed conflict has developed as the result of the experience of war, which 

26 Protection of the Environment During Armed Conflict 

has led to two series of conventions; the Hague Conventions, containing the rules 
governing the means and methods of warfare; and the Geneva Conventions, 
containing the rules governing the treatment of victims of armed conflict. While 
not containing detailed provisions directed specifically toward protecting the 
environment, the Hague and Geneva Conventions do prohibit unnecessary 
destruction, including destruction or damage to property. These basic provisions 
are now considered customary international law that is universally binding. 
Specifically, the Fourth Hague Convention of 1907 includes principles of 
limitation which prohibit unnecessary destruction not required by military 
necessity. Article 22 of the Regulations annexed to the 1907 Hague Convention, 
provides that the right of belligerents to adopt means of injuring the enemy is not 
unlimited. Article 23 prohibits both the use of arms, projectiles or material 
calculated to cause unnecessary suffering and the destruction or seizure of the 
enemy's property unless such destruction or seizure be imperatively demanded by 
the necessities of war. 

The doctrine of military necessity, requiring subjective judgment and 
interpretation, is said by some to create a loophole or an excuse for every 
conceivable situation, so that the laws of armed conflict impose no real limitation 
and, therefore, no protection for the environment. Others maintain that the 
doctrine of military necessity invests too much discretion in the military 
commander. According to that view, in the heat of battle, the on-scene commander 
would always choose military advantage over environmental protection, justifying 
decisions based on military necessity after the fact. Additionally, there are folks 
who view powerful, technologically advanced nations, such as the United States, 
as inherently resistant to limitations on their military might, unwilling to accept 
restraints imposed by the law of armed conflict limiting their power. The 
counterclaim to these views is the current U.S. Department of Defense position 
that the existing international legal regime is sufficient to protect the environment 
during international armed conflict or military operations other than war. 

The Department of Defense position is that while armed conflict may acutely 
impact the environment, prohibitions against unnecessary destruction are 
pervasive and provide a basis for the imposition of sanctions whether criminal or 
civil. For example, Iraq has been universally condemned for the wanton 
devastation inflicted on Kuwait. After the Gulf War, the Department of Defense 
issued a report detailing the extent to which law of armed conflict concerns 
permeated strategic decisions at every stage. For instance, during the conflict, 
bombing targets were carefully selected to avoid civilian population centers, 
cultural and religious structures and environmentally sensitive areas, even when 
it became apparent that Iraq was conducting military activities from such sites. In 
the view of those who believe the current law of armed conflict protects the 
environment effectively, the Allied restraint shown in the Gulf War is supporting 

LeGrand 27 

evidence that militarily powerful nations, such as the United States, are able to 
accept, implement and effectively enforce limitations on the conduct of armed 

Returning for a moment to the 1907 Hague Conventions, Article 55 of the 
Regulations annexed to Convention IV imposes the obligation on an occupying 
State to protect natural resources during periods of occupation. Article 3 of that 
Convention provides that a belligerent party violating that provision of the 
Convention may be liable to pay compensation. Taken together, these provisions 
of the 1907 Hague Convention require a balancing of potential destruction with 
military requirements. Have they proven enduring and broad enough to cover 
ever-evolving technology? The adequacy of such provisions addressing State 
responsibility and civil reparations will be assessed during this Symposium. Like 
the Hague Conventions regulating the conduct of war, the Geneva Conventions 
protecting the victims of war can be construed as including protection for the 
environment. Specifically, Article 53 of the Fourth Geneva Convention of 1949 
prohibits any destruction of property, whether public or private, by an occupying 
power unless such destruction is rendered absolutely necessary by military 
operations. Article 147 of the Fourth Geneva Convention, provides that extensive 
destruction, of property, not justified by military necessity and carried out 
unlawfully and wantonly, is a grave breach of the convention. 

Criminal and civil responsibility for environmental damage are to be reviewed 
as a part of this Symposium. Discussion concerning the application of the Fourth 
Geneva Convention in this context is also important. The Fourth Geneva 
Convention provides for individual criminal liability for any breach, and State 
civil liability for grave breaches of the Convention. While reparations were 
ultimately imposed by the U.N. Security Council against Iraq for environmental 
destruction in Kuwait, many scholars argued that the Fourth Geneva Convention 
provided a sufficient legal basis for convening a Nuremberg-type war crimes 
tribunal to prosecute individual Iraqis after the Gulf War. 

The 1977 Environmental Modification Convention, to which the United States 
is a party, limits military or other hostile use of environmental modification 
techniques as a method of armed conflict. Concerned by the use of defoliating 
agents and weather manipulation techniques used by the United States during the 
Vietnam War, the United States Senate passed a resolution in 1973 encouraging 
the Executive Branch to pursue a treaty prohibiting the manipulation of the 
environment as a weapon of war. The resulting Environmental Modification 
Convention prohibits a State from using any environmental manipulation that 
has widespread, long-lasting or severe effects on the environment for military or 
any other hostile use. Like the Hague Conventions, the Environmental 
Modification Convention governs means and methods of warfare. It applies 
regardless of the existence of military necessity, establishing an outer limit that 

28 Protection of the Environment During Armed Conflict 

cannot be overcome, notwithstanding the presence of military exigency. Unlike 
the Hague or Geneva Conventions, the Environmental Modification Convention 
does not establish individual criminal or State civil liability, rather it provides for 
U.N. Security Council investigation and assistance by the other parties upon 
verification of a complaint. 

Now whether the threshold that triggers the application of this treaty is too 
high or too low, is likely to be a subject addressed by our last panel, which will 
assess the need for new international accords. Nevertheless, the Environmental 
Modification Convention provides some further protection against the most 
serious forms of environmental devastation. So far, I've been talking about 
conventions that have been widely ratified, including those ratified by the United 
States. Another issue that this Symposium will address, is whether the United 
States and other nations that have not yet ratified Additional Protocol I of the 
Geneva Conventions, should be encouraged to do so as a means to further protect 
the natural environment during armed conflict. Opinion on this issue certainly 
appears divided. Articles 35 and 55 of Additional Protocol I contain parallel 
provisions protecting the environment from widespread, long-term and severe 
damage. Article 35 states that it is prohibited to employ methods or means of 
warfare which are intended or may be expected to cause widespread, long-term or 
severe damage to the natural environment. Article 55 provides that care should be 
taken in warfare to protect the natural environment against widespread, long-term 
and severe damage. This protection includes a prohibition of the use of 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 to prejudice 
the health or survival of the population. Attacks against the natural environment 
by way of reprisals are also prohibited. 

To see the environment as one of the four interrelated categories of civilian 
objects afforded special protection by Additional Protocol I is an evolving concept. 
The other categories are cultural objects, places of worship, objects indispensable 
to the survival of the civilian population, and works and installations containing 
dangerous forces such as dams, dikes and nuclear electricity generating stations. 
Obviously, there are many situations in which two or more prohibitions could be 
violated simultaneously. 

Supporters of ratification of Additional Protocol I, argue that Articles 35 and 
55 represent an important stage in the development of humanitarian law by 
explicitly codifying protection of the environment. They note that the 
Environmental Modification Convention prohibits environmental manipulation 
as a means of warfare but does not prohibit targeting of the environment. In 
contrast, opponents of ratification have argued that the three-part threshold for 
triggering Additional Protocol I, which requires environmental destruction be 
widespread, long-term and severe, is too high to provide real protection. The 

LeGrand 29 

understanding of the drafters of the Protocol that long-term means decades, is 
much higher than the threshold established in the Environmental Modification 
Convention whose drafters defined long-term to be more than one season. In 
addition, some countries have argued that Articles 35 and 55 of the Protocol 
include limitations upon nuclear weapons which would, of course, upset the 
balance established in nuclear weapons conventions. 

Finally, others have noted problems with Article 5 1 of Additional Protocol I, 
which requires parties to seek to minimize injury to the civilian population even 
when civilians are being used as so-called "human shields" for military operations. 
Even though the other party may have violated the law of armed conflict by 
locating bona fide military targets in population centers, the injunction against 
collateral injury to the civilian population remains. While the Protocol may 
contain some advantageous developments in the law of armed conflict, the 
disadvantages are such that no United States Administration has yet submitted 
the treaty to the Senate for its advice and consent for ratification. 

From considerations of existing conventions, we will then necessarily turn to 
the question of whether new treaties should be developed to protect the 
environment in times of armed conflict. Now this topic has received a great deal 
of attention in the aftermath of the Gulf War and the destruction inflicted on 
Kuwait by Iraq. On the one hand, a number of leading scholars have argued that 
ecocide, if we may use that term, was a failure of deterrence, not law. Proponents 
of this view note that Iraq wantonly breached the Hague and Geneva Conventions 
and that blatant violations of the law cannot be remedied simply by establishing 
new laws. Further, some commentators have noted that while the international 
community has become proficient at drafting and negotiating environmental 
treaties, there is little evidence that the international community is equally adept 
at implementing and enforcing them. There were fewer than three dozen, 
multilateral environmental treaties in 1972. Today, there are nearly 900 
international agreements that contain important environmental protections. 
Edith Brown Weiss has termed this situation the "treaty congestion" problem in 
emphasizing the need to shift resources from drafting and negotiating to 
supporting the implementation and enforcement of environmental treaties. Those 
who seek increased protection for the environment in times of armed conflict were 
certainly mobilized by Iraq's conduct during the Gulf War. Their proposals have 
largely focused on either restricting the methods of armed conflict or the location 
of that conflict. For example, on March 11, 1991, French representatives to the 
Governing Council of the United Nations Environmental Program proposed two 
new conventions, one protecting world heritage monuments in time of war and 
one prohibiting the targeting of ecological areas. That same day, Japan urged the 
adoption of a Declaration of Principles which would prohibit destruction such as 
that inflicted by Iraq as a method of warfare. These proposals were later discussed 

30 Protection of the Environment During Armed Conflict 

at a Governing Council meeting on May 20, 1991, in Nairobi, Kenya. Others have 
urged that protected geographical sanctuaries be established through the Cultural 
and Natural Heritage Convention of 1972. And still others have urged that 
demilitarized areas be established by adoption of conventions similar to the 
Antarctic Treaty of 1959. 

Two international conferences were convened in 1991 to address the need for 
additional law in times of armed conflict. First, Greenpeace International 
sponsored a conference in London at which it proposed a Fifth Geneva 
Convention. The Greenpeace proposal would prohibit the use of the environment 
as a weapon, would ban weapons aimed at the environment, and would prohibit 
indirect damage to the environment of a third State, irrespective of a claim of 
military necessity. This Fifth Geneva Convention would apply in all armed 
conflicts, not just to international armed conflict as do existing Geneva 
Conventions. And finally, the proposal would establish a responsibility to pay 
compensation for violation of the Convention. At present, this proposal does not 
appear to be moving forward. Second, in July 1991, a conference was held in 
Ottawa. United States' participants in Ottawa emphasized the importance of not 
unduly restricting otherwise lawful military operations. In general, the 
participants recommended further efforts be focused on enforcement mechanisms 
rather than additional international agreements. 

Finding ways in which the laws of armed conflict could be better enforced will 
also be discussed at this Symposium. While some also argue that new laws of armed 
conflict are necessary, there seems to be greater consensus for examining ways to 
improve enforcement of existing laws of armed conflict. As Professor Bob Turner 
has said about the Gulf War, "The real reason was not that the law was ineffective 
but rather, unenforced law is ineffective." 

Now, aside from use of military force, there are three ways in which the 
international community has sought to enforce the laws of armed conflict. The 
first method of enforcement has been to hold individuals criminally liable. The 
most frequently suggested model has been the use of a Nuremberg-type war crimes 
tribunal. Though many commentators urged the establishment of a tribunal to 
prosecute Iraqi war crimes, one was not established. However, the current tribunal 
established at the Hague by the U.N. Security Council pursuant to Articles 29, 39 
and 41 of the U.N. Charter to prosecute war crimes in the former Republic of 
Yugoslavia, and in Rwanda, should give us a great deal of information, hopefully, 
about the effectiveness and practicability of such a forum in today's contemporary 
world. Now, in addition to an ad hoc tribunal, the Security Council also has the 
authority, pursuant to Article 43 of the U.N. Charter, to authorize a regional 
arrangement or group to conduct war crimes trials. However, many favor the 
degree of impartiality gained by use of an international, rather than a regional 
forum. Furthermore, there is growing sentiment to prosecute war criminals in 

LeGrand 31 

national courts. Both Austria and Denmark have recently prosecuted individuals 
accused of committing war crimes in the former Republic of Yugoslavia. While 
States have on occasion prosecuted their own nationals for war crimes violations, 
as Austria and Denmark have recently done, for the most part, they have resisted 
prosecuting enemy personnel since WW II. Nevertheless, that option may warrant 
greater attention. 

A second widely used sanction has been the requirement that the responsible 
nation make reparations, usually of monetary damages, for environmental 
degradation or destruction. During active hostilities, seizure of assets has been 
accomplished both to deter aggression and to provide a source of potential 
reparations at the conclusion of hostilities. Claims commissions may be 
established by the agreement ending hostilities or by the U.N. Security Council 
pursuant to Articles 39 and 41 of the Charter. By Security Council Resolution 687, 
the U.N. Compensation Fund was created, and a commission was established and 
charged with evaluating crimes arising out of "direct losses, (and) damage, 
including environmental damage, as a result of Iraq's unlawful invasion and 
occupation of Kuwait." While injured parties may eventually obtain reparations, 
the possibility of future compensation provides little comfort to individuals and 
communities that experience loss and require immediate relief. 

A third enforcement method could be described as condemnation in the court 
of public opinion. Professor John Norton Moore has long been an advocate of 
disseminating the facts of international law violations through the media. 
Moreover, Article 149 of the Fourth Geneva Convention authorizes an inquiry at 
the request of a party to the conflict concerning any alleged violation of the 
Convention. Evidence from such an inquiry may later form the basis for criminal 
prosecution. Finally, for those countries that are parties, Article 90 of Additional 
Protocol I authorizes the establishment of an international fact-finding 
commission to conduct investigations. 

So, in summary, this Symposium will hopefully stimulate a broad discussion 
of the viability of the existing law and the need for new accords. In our opening 
panel, which will take place after lunch, we will begin with the first of our topics, 
"The Strategic Imperative." Ultimately, we will address each of the issues I have 
attempted to outline this morning, including whether the existing legal regime 
effectively protects the environment in times of armed conflict, whether the legal 
regime has been or is capable of being effectively enforced, and whether new 
developments in the enforcement of the law would better protect the environment. 
Because our national security interests, as well as the potential risks to the 
environment are enormous, the stakes regarding these issues are quite high. And, 
with the exceptional talent we have gathered here, we are looking forward to a 
productive and lively exchange of opinions. I would like to thank you all for being 
here and I hope you enjoy the Symposium. Thank you very much. 

32 Protection of the Environment During Armed Conflict 

Professor Grunawalt: Thank you Admiral. Before we break for lunch, a couple 
of thoughts occurred to me as I listened to Mr. Harper's address, Admiral 
LeGrand's "Framing The Issues" presentation, as well as the intercessions from 
the floor. One thing I thought I would ask you to contemplate over lunch and when 
we get together after lunch, is the military dimension of the equation, the strategic 
imperative, that is, what one must do to win across the spectrum of conflict. 
Admiral LeGrand noted that it is our assessment that during the Gulf Conflict, 
the United States Armed Forces indeed were prepared to accept, implement, and 
effectively enforce international norms with respect to the protection of the 
environment. Mr. Harper pointed out, as did Admiral LeGrand, that the issue 
appears to be enforcement of that law which already exists, as much, if not more, 
than the necessity to develop further law. I am reminded of an article written by 
Professor Michael Reisman that appeared in Admiral Robertson's Volume 64 of 
the Naval War College's "Bluebook" series. Professor Reisman wrote very 
persuasively of the very positive role of military manuals in the general process of 
behavior of military forces. The whole theme here, and one again I would like you 
to carry with you and put into context when we hear from our military people this 
afternoon, is that ultimately it is not what kind of treaty one signs, it is the behavior 
of forces in the field that is going to determine whether or not military operations 
bring unacceptable destruction to the environment. You have to understand the 
critical role, the inescapable role, that comes from the subjective judgment of the 
operational commander on the scene. We are talking about a decision that must 
be taken in the crucible of conflict, in von Clausewitz's "fog of war." How do we 
do that? How do we prepare our operational commanders to do that which is right 
when these subjective judgments must be made? I believe very strongly in the 
efficacy of the military manuals approach and I recommend Michael Reisman's 
article to you if you have not seen it. Also, we are now in the process of 
promulgating the next iteration of the Commander's Handbook on the Law of 
Naval Operations, what was until recently called NWP 9. It, unfortunately, now 
has a new number, NWP1-14M. Finally, among us this morning are folks like 
Chris Greenwood, Dieter Fleck and Ivan Shearer, who have been working 
diligently in this military manual arena, to provide guidance to our military 
commanders who must make those substantive judgments so that they do so on 
the basis of that which we expect of them. 

We had anticipated that Senator John Chaffee would be our guest speaker for 
the luncheon today. If you have been following the news these past few days you 
will have noted that it is very unlikely that any United States Senator is going to 
get out of Washington for the next several days and, unfortunately, Senator Chaffee 
has had to send his regrets. Nonetheless, we will now recess and reassemble at the 
Officer's Club for lunch. 



Chapter IV 
Naval Warfare and The Environment 

Rear Admiral William H. Wright, IV, U.S. Navy* 

Deterrence, as articulated in the National Military Strategy, promotes the 
ideal condition for the protection of the environment. The devastation of 
the aggressor's homeland should be reason enough to pursue a course other than 
war . . . yet wars exists. Certainly, in the course of the two World Wars, mankind 
took a severe toll on the environment — to say nothing of his fellow man. During 
the Cold War era, the military forces of the two superpowers necessarily had an 
adverse impact on the environment as they prepared for possible conflict. The 
environmental damage caused by fifty years of weapons development, maintaining 
large standing forces, and exercising and operating their forces, has yet to be fully 
assessed. But it certainly is far less than would have been the case if World War 
III had come to pass. The environmental damage, as seen on CNN, during the 
Gulf War highlighted again the degradation that military forces can inflict on the 
environment in wartime, increasing pressure to regulate the impact that military 
operations have on the environment in war, as well as peace. 

From a military perspective, remedies for environmental concerns should be 
pursued with appropriate consideration given to future contingencies requiring the 
use of military force; preventing friction between environmental policy and the 
realities of military conflict. An absolute ban on environmental damage caused by 
military operations is inconceivable. War by definition is a "no holds barred affair". 
Thus, the real issue is how best to minimize the environmental impact of military 
operations without constraining the military commander with policies that have little 
chance of serious consideration in wartime. But most importantly, we must not create 
uncertainty or risk aversion in the minds of our commanders regarding environmental 
considerations that could be exploited by their adversaries. 

The Nature of War 

Doctrine defines war as "a violent clash between two hostile, independent, and 
irreconcilable wills, each trying to impose itself on the other." The very nature 
of war is synonymous with human casualties and environmental damage. Warfare 
will always have an adverse impact on the environment; the extent will depend on 
the willingness of warring nations to conform to environmental regulations that 
may constrain their ability to achieve victory in the war. Thus, as a practical matter, 

36 Protection of the Environment During Armed Conflict 

expansion of the law of war to cover environmental concerns could be done in a 
manner similar to the approach taken in addressing humanitarian concerns. That 
is, avoiding environmental impact cannot be absolute; clauses like "military 
necessity" will be needed to recognize that a military commander realistically 
cannot be expected to place his force or his mission achievement at grave risk to 
enemy action in order to protect the environment. Nevertheless, military 
commanders can legitimately be expected to show due regard for avoiding 
unnecessary environmental damage in the conduct of warfare. 

Can war be fought with due regard to the environment? Environmental concerns are 
having an increasingly significant impact on the conduct of peacetime U.S. military 
operations. But does compliance with environmental regulations end when war begins? 
Simply put, can we effectively conduct war using environmental "Marquis of 
Queensberry" rules when dealing with a "street fighter" who is not similarly constrained? 

Naval Warfare Imperatives 

Operating on and from the sea, naval forces have a unique ability to provide 
credible combat forces throughout the world. With the sudden change from the 
Cold War — with a single, overriding global threat posed by the other 
superpower — to the post-Cold War environment of multiple potential regional 
security challenges, the operational demands placed on naval forces have become 
much more diverse. Naval forces are increasingly being called on to provide the 
myriad capabilities needed to ensure success across the entire spectrum of military 
operations. In order to respond decisively to the crisis of the future, we must 
remain ready, flexible, self-sustaining and mobile in peacetime. In war, we must 
maneuver and project fires without restraints. Underpinning the Navy's ability to 
provide credible combat forces prior to conflict and during combat are four 
strategic naval imperatives: realistic, demanding operational training, unimpeded 
mobility at sea, proven warfighting doctrine and effective weapons. 


The U.S. Navy and Marine Corps train to fight and win the nation's wars. In 
doing so, we train to a high level of professional competency that allows us to also 
carry out a broad range of military operations while we posture ourselves for war. 
Any encroachment on our ability to conduct operational training degrades mission 
effectiveness. Skills such as anti-submarine warfare can only be honed through the 
prosecution of targets which requires the deployment of sonobuoys, smokes, 
explosive signaling devices and torpedoes (exercise and war reserve). Our naval 
aircraft must conduct low-level bombing on land and sea targets and surface ships 
must fire their guns. Naval forces must seize, and be given, every opportunity to 
utilize these weapon systems under conditions which simulate realistic operations. 

Wright 37 

Not doing so ultimately creates exploitable vulnerabilities within naval forces. 
Without training as we intend to fight, we limit the effective utilization of the force 
in time of war. 

Although environmental regulations are not aimed at naval forces specifically, 
they require compliance that impacts, directly or indirectly, on our ability to train 
effectively. Statutes such as the Marine Protection, Research and Sanctuaries 
Statute designate various sea areas as national marine sanctuaries. As the number 
of these sanctuaries increase, they begin to encroach on traditional near-shore 
training areas. These statutes require vessels to delay, modify or cease training in 
order to protect certain species of marine life. This conformance significantly 
affects naval training operations in or near these sanctuaries. A newly established 
marine sanctuary in Hawaii, for example, and the designated whale critical habitats 
in submarine transit areas off Georgia and Florida, may lend to a serious impact 
on naval operations. Although these areas may not be completely restrictive, they 
do require added operator awareness and compliance efforts that can detract from 
the realism and effectiveness of training. Environmental compliance has thus 
become an integral part of planning naval operational training. Ultimately, a point 
could be reached in which environmental regulations significantly degrade the 
effectiveness of operational training. At this juncture, we will have reached a point 
where our military no longer has the confidence or capability to meet the enemy 
on his terms without incurring unnecessary loses. Protecting the environment at 
the expense of human life does not meet anyone's sanity test. The challenge, thus, 
is to credibly articulate that in peacetime. 

Weapon firings are a crucial element of peacetime training for combat readiness 
on deployment. But weapon firings are also of great concern to environmentalists. 
The military weapons range on Kahoolave Island in Hawaii was closed for several 
reasons; some included environmental concerns. Other weapons firing ranges are 
subjects of possible closure or added restrictions. Recently, the Olympic Coast 
National Marine Sanctuary, an area of several thousand square miles, prohibited all 
bombing activity in a preexisting training area. As weapons firing ranges are closed 
or subjected to restrictive regulations, the impact on combat readiness will increase. 
Naval forces will continue to be innovative and resourceful in working around these 
obstacles while pursuing their training objectives. But a trend is apparent that could 
eventually produce shortfalls in our combat readiness. 


This nation, by virtue of its geography, is a maritime nation. Our vital interests are 
worldwide. When combined with our national strategy of engagement, naval forces 
become the force of choice to operate forward and to be engaged, poised to defend 
critical links abroad. An enduring attribute of naval forces remains its ability to operate 
forward in support of national interest, secure through mobility upon the waters of 

38 Protection of the Environment During Armed Conflict 

the world. The law of the sea provides a context of navigational freedom that is 
essential in meeting national objectives. A high degree of mobility across the broad 
oceans, through choke points and in littoral regions, is a prerequisite to the success 
of naval forces in executing the national security strategy. 

Mobility can be impeded significantly by international or domestic regulation 
in the name of a protected environment. Nations wishing to impose their 
sovereignty beyond the internationally recognized 12 mile limit may use 
environmental concerns as an instrument of partial leverage. Economic zones can 
be redefined to include pollution and waste requirements during peacetime which 
serve to impede our freedom of navigation. As the focus on the environment gains 
momentum, these types of regulations represent clear dangers. The Act to Prevent 
Pollution from Ships (APPS) (33 USC 1901-1908) provides for the U.S. 
implementation of the International Convention for the Prevention of Pollution 
from Ships (MARPOL). Although a domestic statute, APPS imposes greater 
environmental obligations upon U.S. warships than is required under MARPOL. 
Any movement by the international community to implement reciprocal 
standards will impact naval operations abroad. Heavily used sea lines of approach, 
such as the Straits of Hormuz or the Malacca Straits, are likely candidates for 
onerous environmental restrictions. Environmental concerns brought forth by the 
possibility of collision or the fact that heavy transit of straits may pollute those 
waters could result in regulation which restricts, limits or prohibits transit without 
some toll for clean-up. Although hypothetical, many foreign ports already have 
anti-pollution regulations: Hong Kong and Singapore to cite a few examples. 

Restrictions in accessing ports, either for pollution and waste regulation or for 
nuclear safety matters similarly impede our ability to sustain forward presence and 
remain engaged globally. Port visits are integral to supplying, servicing and 
providing morale for forces abroad, as well as showing the flag. These are key 
elements in the "engagement" policy of our nation. As environmental concerns 
grow, we must, in the name of national security, challenge those initiatives that 
encroach on our mobility in much the same manner that we must resist regulations 
that inappropriately or excessively restrict our free trade upon the oceans and 
within the ports of the world. 

Another development which can hinder the full mobility of our naval forces 
would be any requirement for naval vessels to enforce environmental regulations. 
Naval units have already been trained and tasked to maintain continuous vigilance 
for driftnet fishing vessels and for ships discharging unusually large quantities of 
waste into the oceans. Just as the humanitarian concerns of rescuing "boat people" 
around the world interfered with routine operations, a parallel situation can be 
drawn in which naval forces required to be engaged in enforcing environmental 
regulation lose their focus from primary responsibilities. This tasking, if 
significant, could additionally overtax commanders and complicate priorities. To 

Wright 39 

maintain our freedom of mobility, naval forces must clearly understand and 
maintain a balance between their primary mission and their obligations to the 
international community. 

Naval Warfighting Doctrine 

Sea control, sea denial and power projection are fundamental naval missions. 
U.S. naval forces train to these missions through tactical doctrine to become the 
most effective combat forces afloat. The precise operations and tactics executed 
during war support the naval doctrine that will hopefully yield the greatest success 
in battle. Dominance of the sea and power projection ashore will inevitably result 
in the sinking of warships, mining of harbors or striking at strategic centers of 
gravity. Understanding the environmental impact of these evolutions, naval 
commanders have an obligation to weigh the expected and necessary 
environmental impact of the evolution against meeting the military objective. 
However, to what extent must the commander maneuver to avoid a wildlife refuge? 
Will a commander be required to select limited precision munitions over "dumb" 
weapons because of possible collateral damage to the environment? In war, to fight 
and win will always be of primary concern. Therefore, commanders must fight 
without unnecessary uncertainty of the tactical options available. The law of war, 
over time, has evolved to include sanctuaries during armed conflict which have 
the general support of the international community. With due regard to the law 
of war, commanders must follow the doctrine they have applied in training in order 
to optimize their chances of success in conflict. 

Targeting, as with doctrine and tactics, requires the utmost clarity in order to 
meet military objectives. Again, the law of war has established sanctuaries such as 
cultural locations, hospitals and religious monuments, and has prohibited targets 
such as dams-which if severely damaged could unleash forces which would create 
extensive collateral damage. Any alternative targets selected by virtue of 
environmental concerns must be weighed against the consequences and impact 
those alternatives may have on the success and risks of the entire military 
operation. History has many examples of significant military targeting decisions 
which were made with due regard to humanitarian concerns and which changed 
the course of the battle. Environmental damage can be minimized through 
cognizance of environmental concerns. But it should remain clear that in war there 
are no absolutes; but winning is almost everything. 


It goes without saying that our naval forces must be properly trained and 
equipped to fight and win the nation's wars. Naval forces must be provided with 
those weapons which will give our forces the clear advantage in conflict. With the 

40 Protection of the Environment During Armed Conflict 

scaling down of our naval forces, it is more important now than ever to field 
munitions which can do the job effectively with fewer numbers. Our current 
arsenal of strike weapons, over-the-horizon (OTH) missiles, naval gun projectiles 
and mines are moving towards precision applications which, by definition, will 
reduce collateral damage to the environment. However, less damage to the 
environment is a fallout from developing precision munitions and not the key 
factor in their development. The weapon development process currently analyzes 
potential environmental consequences with respect to applicable laws and 
regulations pertaining to pollution, hazardous material and ecological impact. 
Full compliance with these regulations can lead to excessive cost and or 
modifications to the weapon. We must, therefore, seek a balance between optimum 
weapon performance and total environmental compliance. Blast effects, heat, and 
residual by-products from fuel or explosives must be considered in the 
development of weapons to ensure that they can first meet the capability 
requirements. It should continue to be our primary concern that we provide our 
fleet the arsenal needed to inflict high levels of damage on hostile forces in order 
to bring conflict to a decisive, early conclusion and minimize risk to our forces. 
An early conclusion also can reduce death, destruction and environmental damage. 


Environmental regulations, foreign and domestic, must be clearly written so as 
not to be misinterpreted by local or state agencies or by the international 
community, nor to place unwarranted restrictions on naval forces beyond the 
intent of the regulations. Mobility is fundamental to naval forces; both in peace 
and war. Regulations that restrict transits of naval vessels due to environmental 
concerns ignore the importance of mobility and freedom of navigation to naval 
forces in crisis, peacetime operations and training. Although the need to protect 
the environment is clear and widely accepted, international regulations that place 
absolute prohibitions on environmental impact will probably receive minimum 
support and inconsistent compliance from countries with significant military 
forces. As a practical matter, application of environmental regulations to the 
wartime operations of military forces must recognize that avoiding environmental 
impact cannot be the sole consideration. But military commanders can 
legitimately be expected to show regard for avoiding unnecessary environmental 
damage in the conduct of their operations. 

The U.S. National Military Strategy is built upon the three pillars of 
peacetime engagement, deterrence and conflict prevention, and fighting and 
winning our nation's wars. Naval forces, in support of this strategy, will be 
forward deployed, and manned, equipped and trained to fight and win. The 
naval imperatives of realistic, demanding operational training, unimpeded 
mobility at sea, proven warfighting doctrine and effective weapons are crucial 

Wright 41 

to the success of naval forces. Environmental regulations that infringe on these 
naval imperatives could seriously limit the Navy's ability to carry out national 
strategy. In essence, naval forces, by their forward and credible capability, act in a 
preventive role against war . . . and the environmental damage that is so involved. 


* Assistant Deputy Chief of Naval Operations (Plans, Policy and Operations), Headquarters, U.S. Navy. 

1. U.S. Department of Defense, National Military Strategy ( 1995), at pp. 9-12. 

2. U.S. Department of the Navy, Warfighting, FMFM 1 (1989), p. 3. 

3. U.S. Department of the Navy,Mwa/ Warfare, NDP 1 (1993), p. 8. 

4. U.S. Department of the Navy, Chief of Naval Operations Instruction 50O0.42D (1993), Annex E, OPNA V Roles 
and Responsibilities in the Acquisition Process. 

5. Supra n. 1, at i-ii. 

6. See U.S. Department of the Navy, From the Sea (1992). 

Chapter V 

The Army and the Environment: 
Environmental Considerations During Army 


Brigadier General Joseph G. Garrett III, U.S. Army* 

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

General Guilio Douhet, 1920 1 

In the aftermath of the Gulf War and the subsequent U.S. military operations 
in Somalia and Haiti, governments and international organizations have 
renewed the debate concerning military operations and their effect on the 
environment. Via CNN, Americans and the world viewed environmental damage 
caused by Iraq's demolition of Kuwaiti oil wells and the deliberate release of oil 
into the Gulf. In response, allied military forces conducted precision air strikes in 
an effort to stop the flow into the Gulf and to extinguish oil well fires. The 
consequences of these events will effect natural resources for decades. 

Likewise, allied forces during Operation Desert Storm conducted the largest 
land combat campaign since World War II. The mobilization, deployment, and 
combat operations leading to eventual destruction of the Iraqi forces had a 
significant impact on the environment. As an example, U.S. forces fired 11,000 
depleted uranium rounds during Operations Desert Shield and Desert Storm. Due 
to the better armor piercing capability of depleted uranium munitions, the combat 
power of the U.S. military was enhanced by firing these rounds from Army and 
Marine Corps tanks and U.S. Air Force attack aircraft. However, if left on the 
battlefield, uranium, a radio-active heavy metal, may result in environmental 
damage, as well as physiological effects to soldiers and noncombatants. 

What is the long-term environmental impact of these events and to what extent 
should military forces consider these as factors during the planning and execution 
of military operations? In peacetime, environmental compliance is paramount. To 
what extent will environmental considerations apply during war? How should the 
Army consider these issues in its doctrine and training? 

Policy makers, academia, and environmental organizations may have a 
distorted sense of the environmental constraints that can realistically be placed on 

Garrett 43 

commanders during combat operations. The purpose of this paper is to examine the 
extent to which environmental considerations should be a factor in Army operations 
across the spectrum of conflict. 

Part I of this paper examines the Army's mission, what it must be able to 
accomplish to be successful on the battlefield, and the possible environmental 
impacts of those actions. Part II concentrates on how environmental 
considerations are examined during the Army's decision-making process. The 
final portion of this paper, Part III, addresses what initiatives the Army is taking 
to integrate environmental considerations into its training and doctrine. 

Defining the Environment 

Military doctrine defines the battlefield environment as specific features or 
activities requiring further analysis, the physical space where they exist, and 
how these features may influence courses of action or commanders' decisions. 
For purposes of this paper, the definition of environment is broadened to 
include the earth's human ecosystem, both physical and biological systems, 
that provides the resources necessary to sustain productive human life: clean 
air, clean water, healthy surroundings, and sufficient food. 


The United States Army exists to support and defend the Constitution of the United 
States. It does that by deterring war and, if deterrence fails, by providing Army forces 
capable of achieving decisive victory as part of a joint team on the battlefield — 
anywhere in the world and under virtually any conditions. 

Field Manual 100-5 
Army Operations 

Decisive Victory 

The Army must be capable of decisive victory in full-dimensional operations. 
This encompasses employing all means available within the laws of war to 
accomplish any given mission across the full range of possible operations, both in 
war and in military operations other than war (MOOTW). 

To achieve victory, the Army must maintain the capability to put overwhelming 
combat power on the battlefield to defeat all enemies through a total force effort. 
Army forces must be of the highest quality, able to deploy rapidly, to fight, to 
sustain themselves, and to win quickly with minimum casualties. 

Our warfighting doctrine reflects the nature of modern warfare. It applies the 
principles of war and combat power dynamics to contemporary and future 
battlefields within the strategic policy direction of our government. 

44 Protection of the Environment During Armed Conflict 

Application of Combat Power 

Army forces in combat seek to impose their will on the enemy; in operations other 
than war, they seek to alter conditions to achieve their purpose. Victory is the 
objective, no matter the mission. Nothing short of victory is acceptable. 

Field Manual 100-5 
Army Operations 

The Army's role is to gain victory on the battlefield through the swift, 
overwhelming application of maximum available combat power. Combat power is 
a destructive action which must be focused to minimize collateral effects and to 
promote the peace which must follow. The objectives for its employment must be 
clear, achievable, and understood by leaders at all levels. 

Combat power is created by combining the elements of maneuver, firepower, 
protection, and leadership. Overwhelming combat power is the ability to focus 
sufficient force to ensure success and deny the enemy any chance of escape or 
effective retaliation. Our objective is to kill, wound, capture, or render the enemy 
incapable of influencing future battlefield events. If we are successful, the enemy 
is frozen by fear and uncertainty, confused, and isolated. Overwhelming combat 
power is achieved when all combat elements are quickly brought to bear, giving 
the enemy no opportunity to respond with a coordinated or effective response. 

Commanders seek to apply overwhelming combat power to achieve victory at 
minimal cost. They strive to convert the potential of forces, resources, and 
opportunities into actual capability through violent, coordinated action at a decisive 
time and place. Army commanders multiply the effects of combat power through the 
integrated efforts of combat (infantry, armor, artillery, air defense, aviation), combat 
support (engineers, chemical, military police), and combat service support (logistics, 
medical), units as well as support provided by assisting Air Force, Marine Corps, and 
Navy forces. Firepower provides destructive force. It is essential in defeating the 
enemy's ability and will to fight. 

Environmental Impacts During Combat Operations 

Kindhearted people might of course think there was some ingenious way to disarm 
or defeat an enemy without too much bloodshed, and might imagine this is the true 
goal of the art of war. Pleasant as it sounds, it is a fallacy that must be exposed; war 
is such a dangerous business that the mistakes which come from kindness are the 
very worst. 

Karl von Clausewitz 

Garrett 45 

Environmental damage is an inescapable consequence of combat operations. In 
ancient times, the massing of armies destroyed the harvest and turned the 
battlefield to mud. In recent times, the destructive power of weaponry and 
maneuver has dramatically increased the environmental impacts that result from 
military operations. These impacts are magnified by the exponential expansion of 
the world's population, our intensive use of natural resources, and the systemic 
destruction and fragmentation of habitat world-wide by urbanization, agriculture, 
mechanized land clearing, and transportation systems. Consequently, the 
environmental effects of war are more devastating and proportionally greater than 
at any time in history. 

As Clausewitz warned, there is no way that war can be made "nice." When a 
nation strives to make war "nice," or accepts limitations on the use of force beyond 
those required by the law of war, it does so at its own peril. A less-moral nation 
will take advantage of its opponent's constraint, often to the detriment of the 
civilian population in the battle zone, as well as the army fighting with restraint. 
The Vietnam War is a painful example of this mistaken thinking. 

For example, during the 1968 Battle of Hue in Vietnam, Marines were tasked 
with a three-fold mission: destroy as many of the enemy as possible, minimize 
casualties, and minimize collateral damage to the historical city. Formerly the 
imperial capital of united Vietnam and the center of Vietnamese cultural and 
religious life, Hue became an important symbol in the struggle for dominance of 
Indochina. Marines were instructed not to use heavy weapons in order to preserve 
the ancient city. The enemy capitalized on America's restraint by forcing the 
Marines into a bloody, house-by-house battle. As the number of friendly casualties 
increased to a devastating level, the weapons restriction was lifted and the city was 

Impacts on the Environment 

Actions that inflict environmental impacts during the conduct of war can be 
divided into three broad categories: 

• Collateral damage 

• Wanton, unnecessary impact 

• Modification of the environment 

Collateral damage results from military actions to achieve strategic, operational, or 
tactical objectives during armed conflict. The ultimate objective of each 
commander is to achieve victory over the enemy at minimal cost to friendly forces 
through the application of overwhelming combat power. 

Two of the principal components of combat power are maneuver and firepower. 
Each exacts a toll on the environment and the impacts of protracted warfare on 
the environment are inherently destructive. Off-road maneuvering of armored, 
tracked vehicles such as tanks, personnel carriers, and self-propelled artillery can 

46 Protection of the Environment During Armed Conflict 

inflict extensive damage on sensitive ecosystems. Concentrating firepower on 
enemy targets can decimate habitat. The destruction of enemy targets such as fuel 
storage areas and munitions stockpiles results in the release of hazardous 
substances and pollutants into the environment, contaminating the land, the 
water, and the air. Unintended collateral damage to other facilities, such as waste 
water treatment plants, also can result in additional pollution. 

The principles of war are the enduring bedrock of Army doctrine. Their 
application enables the Army to achieve quick and decisive victory. 
Environmental considerations should not obstruct the application of the 
principles of war during armed conflict. Environmental restraints should not 
increase the cost of victory to friendly forces, the probability of a prolonged 
conflict, or the probability of an unfavorable outcome. Take, for example, the 
principles of maneuver and surprise. By maneuver we place the enemy in a position 
of disadvantage through the flexible application of combat power. Maneuver is 
dynamic warfare that rejects predictable patterns of operations. By surprise we 
strike at a time or place or in a manner for which the enemy is unprepared. 
Commanders combine variations of tactics and methods of operation as well as 
deception to surprise the enemy with the unexpected application of combat power. 

Victory requires that Army commanders have maximum flexibility to 
maneuver against and surprise the enemy. Restricting military operations to avoid 
ecologically sensitive habitat, or imposing a no-fire zone because of a target's 
potential to pollute, could provide the enemy with the ability to predict our actions. 
This allows him to protect his forces from attack and prolong the war. 

During combat operations, emphasis must be placed on mission 
accomplishment. The goal of minimizing environmental impacts is best achieved 
by applying the principles of war to achieve quick, decisive victory. Unavoidable 
environmental impacts necessary and proportional to such a response must be 
allowed. Restricting the application of combat power to predictable patterns of 
behavior based on environmental considerations must be avoided. 

Wanton, unnecessary impact consists of actions that inflict environmental damage 
that cannot be justified by military necessity. This is the type of damage most 
recently associated with Iraq's actions in the course of the Persian Gulf War. 
During its occupation of Kuwait, Iraq set Kuwaiti oil fields ablaze and fouled the 
waters of the Persian Gulf by releasing millions of barrels of crude oil into the 
environment. These activities violate Article 55 of Hague Convention IV, which 
requires belligerents to safeguard the real property of hostile States and to 
administer such property in accordance with the rules of conflict. Additionally, 
Article 51 of the Fourth Geneva Convention forbids any destruction of real 
property unless it is absolutely necessary for the conduct of military operations. 
The United States and military services condemn such conduct, which is excessive, 

Garrett 47 

unnecessary, and only peripherally related to achieving strategic and tactical 
military objectives. 

Modifications to the environment consists of actions that are environmental 
modification techniques which cause widespread ("encompassing an area on the 
scale of several hundred square kilometers"), long-lasting ("lasting for a period of 
months, or approximately a season"), or severe damage ("involving serious or 
significant disruption or harm to human life, natural or economic resources, or 
other assets") intended to gain a tactical advantage. These actions are addressed 
by the 1977 Environmental Modification Convention. 

Disciplined Operations 

War is tough, uncompromising, and unforgiving. The Army operates with 
applicable rules of engagement (ROE), conducting warfare in compliance with 
international laws and within the conditions specified by the commander. The ROE 
specify the circumstances under which forces may engage the enemy. The Army 
applies the necessary combat power to ensure victory through appropriate and 
disciplined use of force. 

Exercising discipline during operations includes limiting collateral damage 
which is the inadvertent or unavoidable damage occurring as a result of actions by 
friendly or enemy forces. Discipline begins with trained leaders whose personal 
example, standard of conduct, concern for soldiers, and loyalty to subordinates 
creates well-disciplined units and proper conduct of battlefield operations. Army 
Field Manual 27-10, The Law of Land Warfare, provides guidance to commanders 
on international law and the Geneva and Hague Conventions. It also governs 
appropriate soldier conduct in war. Field Manual 41-10, Civil Affairs Operations, 


provides guidance on control and treatment of displaced civilians. 

A nation that disregards the human rights of individuals makes warfare 
unnecessarily harsh, increases the resolve of its enemy, and changes the nature of 
the conflict. How the Army fights is a mark of what it is and the principles for 
which it stands. Laws of war are only effective in reducing casualties and enhancing 
fair treatment of combatants and noncombatants as long as trained leaders ensure 
those laws are obeyed. The commander ensures the proper treatment of prisoners, 
noncombatants, and civilians by implementing training programs that reinforce 


the practice of respecting those laws and ROE. 

Law of war training, conducted in Army service schools and reinforced by unit 
commanders, emphasizes the military and political reasons for respect for the law: 

• Discipline in combat is essential. 

• Violations of the law of war detract from a commander's accomplishment of 
his mission. 

• Violations of the law of war frequently lead to a loss of public support. 

• Violations of the law of war may arouse an enemy to greater resistance. 

48 Protection of the Environment During Armed Conflict 

Both in training and in combat, the Army strives to use sound environmental 
practices. Many of these are also wise tactical, medical, and operational security 
practices. For example, safe fuel handling, preventive vehicle maintenance, and proper 
disposal of solid/hazardous waste are sound environmental and tactical considerations 
that carry over from training into combat and operations other than war. 

In some respects, protecting the natural environment may seem to run counter 
to the warrior culture and may even be regarded as an impediment to battlefield 
success. The realities of the 21st Century, however, require the incorporation of 
an environmental ethic into how the Army plans its battles. Military commanders 
have an obligation to avoid unnecessary damage to the environment whenever 

Environmental dilemmas faced by a commander during combat must be 
weighed with other considerations such as desired end-state and force protection. 
The warfighting staff considers these potential impacts during the decision 
making process. Part II of this paper explains how environmental considerations 
fit into the planning process. 


Army Decision Making Model 

Before additional environmental limitations are placed on commanders, it is 
important to understand how environmental considerations fit into the Army's 
decision-making process. 

The Army has traditionally viewed military decision-making as both science 
and art. Many aspects of combat operations, such as movement rates, fuel 
consumption, and weapons effects, are quantifiable. Such aspects make up the 
"science" of war. However, the Army cannot quantify facets like the impact of 
leadership, the complexity of modern operations, and the uncertainty regarding 
enemy intentions. 

A commander continually faces situations involving uncertainties, 
questionable or incomplete data, and several possible alternatives. As the primary 
decision maker, the commander, with the assistance of the battle staff, must not 
only decide what to do and how to do it, but must also recognize if and when a 
decision must be made. 

The Army teaches commanders and staff to use a systematic approach to 
decision-making. It fosters effective analysis by enhancing the application of 
professional knowledge, logic, and judgment. These steps guide the staff to: 

1. Recognize and define problems. 

2. Gather facts and make assumptions to determine the scope of, and the 
solution to problems. 

Garrett 49 

3. Develop possible solutions. 

4. Analyze each solution. 

5. Compare the outcome of each solution. 

6. Elect the best solution. 

Intelligence Preparation of the Battlefield 

To gather information for the first two steps of the decision-making process, 
the staff conducts the Intelligence Preparation of the Battlefield (IPB). This review 
is a continuous process of analyzing the threat and area of operations, in a specific 
geographic area. It is designed to support the decision-making process. 

During the IPB process, the staff identifies significant characteristics of the area 
for future analysis. These specific features may influence available courses of action 
or the commander's decision. For example, during humanitarian assistance 
operations, the activities of civilian relief organizations might be a significant 
characteristic of the battlefield. Similarly, during support to counter-drug 
operations, significant characteristics might include the production of narcotics 
or the trading of weapons. For both combat operations and MOOTW, it is during 
this phase of the IPB process when environmental considerations are developed. 

To better understand how environmental considerations are integrated into the 
planning process, consider this scenario. During war, an armor commander is 
given a mission to destroy an enemy force and seize their defensive location which 
is in a key position along the allied axis of advance. After receiving the mission, 
the commander's staff will conduct a mission analysis of the operation. As said 
earlier, the foundation for this mission analysis is the information gathering phase, 
the IPB process. 

As the staff compiles information about the mission, it discovers that the 
enemy's position is near a fuel storage facility. The facility is directly above an 
isolated water shed which supplies water to a significant portion of the local 
population. They realize that the water shed may be contaminated if the fuel 
storage tanks are ruptured. The staff notes this dilemma and continues to 
formulate a plan. They then prepare multiple courses of action to allow the 
commander to weigh the many options for the mission. 

When all the additional courses of action are developed, the staff briefs the 
commander on the different ways his force could proceed with the attack. As a part 
of this briefing, the staff will address the facts and assumptions that were 
considered in formulating the various options. In this scenario, the staff listed as 
a fact that the water shed is directly below the enemy's position. As an assumption, 
they indicate that if the position is attacked, the tanks will be ruptured and the 
water shed will be contaminated. 

The significance of the enemy location near the fuel storage area may prevent 
the armor force from simply attacking the position. The commander examines 

50 Protection of the Environment During Armed Conflict 

each course of action and weighs the significance of each one in terms of elements 
key to success, similar to the principles of war discussed in Part I. Based on the 
evaluation of each plan, the commander selects an option and directs the staff to 
develop the operational plan. 

Due to other operational constraints, the commander may elect to attack the 
position, thereby causing environmental damage. Just as likely, if other viable 
options exist, the commander may choose another course of action and protect the 
local population's water supply. 

Staff Organization and Operation 

The Army has historically integrated other factors, such as protection of 
noncombatants and historical/cultural sites, during the planning process. Many of the 
division and brigade staff elements have some environmental planning and oversight 
responsibilities. These responsibilities are identified in Field Manual 101-5, Staff 
Organizations and Operations. Take for example the protection of cultural/historical 
sites and artifacts. The staff elements responsibilities include the following: 

• Civil Affairs Officer (G5/S5) - Together with the Intelligence Officer, 
determines the location of archives, monuments, and art objects of value to the 
U.S., allies, or civil government. As appropriate, recommends to the Operations 
Officer those items which, because of political, cultural, or economic value, justify 
use of combat elements for their seizure and security. As appropriate, recommends 
to the commander the disposition of each item. 

• Intelligence Officer (G2/S2) - Coordinates with the Civil Affairs Officer in 
locating and searching archives. May provide archives team for intelligence search. 
Returns archives after intelligence processing and recommends the safeguarding 
of archives. 

• Operations Officer (G3/S3) - Prepares recommendation for adjusting tactical 
plans to prevent destruction of arts, monuments, and archives. Assigns special 
missions to tactical units to secure and safeguard such objects. 

• Personnel Officer (Gl/Sl) - Coordinates with the Public Affairs Officer 
appropriate instructions for military personnel concerning treatment of arts, 
monuments, and archives. 

• Provost Marshal (PM) - Coordinates with host-nation military and civilian 
police in concert with the Civil Affairs Officer. 

• Fire Support Coordinator (FSCOORD) - Receives locations of the artifacts 
and sites from the Operations Officer to prevent destruction by fire support, such 
as artillery. 

• Public Affairs Officer (PAO) - With the Civil Affairs Officer and the 
Personnel Officer, uses command information channels to release information on 
appropriate treatment of arts, monuments, and archives. 

Garrett 51 

• Staff Judge Advocate (SJ A) - Provides legal advice to ensure compliance with 
the law of armed conflict. 

A similar process would be taken for natural resources. After reviewing the 
staffs actions for cultural/historical sites and artifacts, consider again the previous 
example of an enemy's position near a fuel storage facility. The staff works to 
quickly determine if the tactical value of the mission out-weighs other 
environmental factors, such as the contamination of the local water supply. The 
staff considers many factors including the law of war, the commander's intent, and 
the rules of engagement. They present their recommendation to the commander 
for consideration. Regardless of the type of consideration — whether a tactical 
factor, such as ammunition availability, or an environmental factor — the process 
is still the same. 

This may require technical assistance from other members of the staff to fully 
review and integrate any environmental considerations. The Staff Engineer is the 
commander's terrain expert. He can identify problem areas and predict potential 
impact. Similarly, the Division Surgeon is the medical advisor to the staff and can 
identify the potential health impacts of any proposed action. The G-5 or civil affairs 
section can assist the SJA in determining the impact on non-combatants. Since most 
of the environmental considerations will be raised during the IPB process, the 
commander's Intelligence Officer can also help the staff in bringing all the pieces 
together and weighing their significance. The Intelligence Officer can also predict 
possible actions the enemy may take to use the environment to his tactical advantage. 

Doctrinal integration of environmental considerations is a significant focus of 
the Army's environmental strategy. The Army is taking proactive steps, both in 
doctrine and training, to prepare our soldiers and leaders for the increasing 
environmental challenges of Army operations. 



Full integration will occur when everyone — leaders, soldiers, 
families — automatically includes environmental impact considerations in the 
planning and execution of activities... Training and doctrine are the key. We have 
instilled the warfighting ethic throughout the force, and we are now instilling an 
environmental ethic as well... We are incorporating environmental considerations in 
our doctrine.. .in our training... in our decision-making process. 

General Gordon R. Sullivan, U.S. Army 

Commander's Intent 

The U.S. Army Environmental Strategy into the 21st Century, the Army's 
concept for environmental excellence, was signed by the Secretary and the Chief 

52 Protection of the Environment During Armed Conflict 

of Staff of the Army in November 1992. The strategy stated, "Leadership is the 
key to success. Each of you in the chain of command is responsible for ensuring 
that the U.S. Army's environmental strategy is implemented and that 
environmental stewardship is an integral part of everything you do." 

The strategy provides policy and objectives in the various areas of 
environmental stewardship as well as a vision for the future. It also identifies four 
critical elements pertinent to doctrine and training: 

• Commit the chain of command. 

• Organize for success. 

• Spread the environmental ethic. 

• Train and educate the force. 

Commit the Chain of Command 

Guidance from the senior leadership is clear and sufficient. The Secretary of 
the Army and Chief of Staff have committed the chain of command to this mission. 
A parallel can be drawn between the Army's effort to integrate environmental 
considerations with the proven initiatives of the Army's safety program. The 
success of the safety program, as with the environmental program, hinges on 
commitment of the chain of command. Safety briefings cannot solve the Army's 
safety problems. The number of safety-related incidents decreased when safety 
became a commander's program and was integrated into the way we do business. 
Likewise, to decrease the impacts of Army operations on the environment, we 
must integrate environmental considerations into our everyday operations. 

Organize for Success 

In 1993, the Army's Training and Doctrine Command (TRADOC) designated 
the U.S. Army Engineer School as the executive agent for the development and 
integration of environmental doctrine and training as they apply to tactical units 
and the Army in the field. Their action plan was created with the assistance of 
Department of the Army-level environmental staff and the other Army service 


schools and is delineated in five steps: 

• Establish procedures for incorporating environmental protection and 
enhancement into Army doctrine. 

• Determine requirements for environmental training programs. 

• Determine procedures for conducting individual and collective 
environmental task analysis. 

• Determine resources needed to implement the plan. 

• Establish milestones. 

We must now take the action plan and determine the what, where, when, and 
how soldiers will be trained: 

Garrett 53 

• What (doctrine and specific tasks). 

• Where (resident, non-resident, unit sustainment). 

• When (level of military education). 

• How (type of instruction). 

Spread the Environmental Ethic 

Field Manual 22-100, Military Leadership, defines ethics as "principles or 

standards that guide professionals to do the moral or right thing which should be 


Stewardship is a key element of the Army's environmental ethic. Our Army is 

charged with protecting and defending the nation, to include safeguarding the 

environment. In addition, the Army has been entrusted with 12 million acres and 

many cultural and natural resources. The American people expect the Army to 

exercise good judgment in the use and management of those resources. They expect 

the Army to be a good steward of the assets entrusted to it. 

Train and Educate the Force — Doctrinal Integration 

Environmental issues play an ever-increasing role on the battlefield, and they 
are becoming even more significant in conducting military operations other than 
war. Army units now face an incredible mix of operational requirements. Recent 
deployments have placed small units and junior leaders in critical situations where 
there are few rules and personal judgment is the best guide. For these reasons, the 
Army must provide environmental guidance in every level of doctrine. 

Army operational doctrine is comprehensive. It integrates hundreds of subjects 
into a tightly crafted collection of writings that provide guidance to soldiers at 
every level. Mapping the requirements of the Army's environmental strategy into 
operational doctrine will entail a gradual process of introducing concepts and 
norms into capstone doctrinal manuals while simultaneously developing specific 
requirements in procedural publications. 

To be fully integrated into Army planning, training, and operations, the 
appropriate level of environmental considerations must be incorporated into 
capstone field manuals. The following capstone manuals will drive subordinate 
doctrine, provide the impetus for training and professional education, and begin 
the long-term process of preparing for the environmental requirements of the 21st 

• FM 100-5,i4rmy Operations. This capstone operational doctrine underpins 
all of the Army's doctrine, training, leader development, organization, materiel, 
and soldier concerns. Environmental values and considerations should be 
included in the view of war, the strategic context, the training and readiness 

54 Protection of the Environment During Armed Conflict 

challenge, military operations other than war, and the physical dimension of 


• FM 100-1, The Army. The definition of the Army environmental ethic and 
environmental considerations belong in this source book for strategic doctrine. 


• FM 22-100, Military Leadership. This manual should discuss the 
environmental component of ethical leadership. 

• FM 25-100, Training the Force 24 and FM 25-101, Battle Focus Training. 25 The 
Army's training function is directly affected by environmental factors. The 
training management cycle should include segments on land and endangered 
species management, range restrictions, training area carrying capacity, and noise. 

• FM 100-10, Combat Service Support. Supply, maintenance, and field 
service-support activities generate large quantities of waste. Petroleum storage and 
distribution systems are particularly prone to causing environmental problems. 
Logistical planning includes many environmental considerations such as health 
service support and waste disposal. 


• FM 101-5, Staff Organizations and Operations. Many of the staff elements 
have some environmental planning and oversight responsibility. These positions 
must be identified and their environmental functions integrated throughout the 
entire staff. This manual also outlines the Army's decision-making process. 


• FM 34-130, Intelligence Preparation of the Battlefield. As explained in Part II 

of this paper, the IPB process needs to specifically include the investigation of 
environmental considerations. 

Train and Educate the Force — Environmental Training 

"Integration" is the philosophy used in designing environmental training 
programs. Rather than developing stand-alone courses, the Army integrates 
environmental considerations into all levels of existing training. 

Individual and Collective Tasks 

The Army is striving to integrate environmental considerations into military 
occupational skills (MOS) training. Integration is more urgent for some skills than 
others. For example, fuel handlers, heavy equipment operators, mechanics, and 
heavy weapons handlers require immediate attention. To meet this need, the Army 
established an environmental work group composed of members from its service 

schools. The work group representatives ensure environmental training is 

incorporated into their school's training programs and doctrinal manuals. 

The integration efforts of the Combined Arms Support Command (CASCOM), 

a member of the TRADOC Environmental Work Group, are a major success story. 

CASCOM is responsible for the service support branches, including 

Quartermaster, Ordnance, Transportation, and Missile/Munitions Schools. 

Garrett 55 

CASCOM recently released the Soldier Training Plan (STP) for MOS 77F, Fuel 
Handler. The potential environmental impacts from fuel handlers are obvious and 
CASCOM considered this when defining the tasks, conditions, and standards. Their 
new manual is an excellent example of how environmental considerations can be 


incorporated into operations without sacrificing mission accomplishment. 

Resident Training: 

To further support environmental education, the Army directed its service 
schools to include environmental instruction in their resident training programs. 
These resident courses range from initial entry (basic training) through the 
Sergeants Major Academy, and from officer precommissioning to precommand 

The environmental instruction contains the baseline environmental 
knowledge that all soldiers of that rank will receive. The students must identify 
the Army and unit environmental programs, identify applicable environmental 
laws and Army regulations, describe soldier and leader duties, and develop the 
environmental ethic. 


The Army must be capable of decisive victory in full-dimensional operations. 
This encompasses employing all means available within the laws of war to 
accomplish any given mission, across the full range of possible operations, both 
in war and in military operations other than war. 

The acceptable level of these impacts is not finite and will vary based on the 
intensity of the conflict. The Army applies the combat power necessary to ensure 
victory through an appropriate and disciplined use of force. The Army conducts 
warfare in accordance with international treaties, the rules of engagement, and 
guidance from commanders. 

To minimize the collateral damage, the warfighting staff evaluates 
environmental considerations early in the decision-making process. The 
commander has the challenging task of weighing environmental considerations 
with other operational concerns. 

The Army is integrating environmental considerations into training and 
doctrine. This begins by establishing an environmental ethic and an 
understanding of the laws of war. 

A sound environmental ethic and specific doctrinal guidance will prepare our 
soldiers and leaders for operations in the 21st Century and the challenges it 

The Army faces a unique set of challenges as it adapts to a world that has 
changed more broadly and fundamentally than at any time since the end of WWII. 
The Army must continue to adapt to ensure success in a rapidly changing strategic 

56 Protection of the Environment During Armed Conflict 

environment. Now, more than ever before, it serves as a strategic Army, a land 
force on which the United States and its allies rely to meet global challenges. 


* Director of Strategy, Plans, and Policy, Office of the Deputy Chief of Staff for Operations and Plans, Department 
of the Army 

1. U.S. Department of the Army, White Paper, Decisive Victory, (1994). 

2. Rokke, et al., "Introduction to Depleted Uranium," U.S. Army Chemical School, August 1995. 

3. E.g., U.S. Department of the Army, Field Manual 100-5, Army Operations, (1993). 

4. Id. at 2-9. 

5. Clausewitz, On War (Howard & Paret eds. 1979). 

6. Parks, Teaching the Law of War, in U.S. Department of the Army Pamphlet 27-50-174, The Army Lawyer, June 

7. Christmas, A Company Commander Reflects on Operation Hue City, 55 Marine Corps Gazette, No. 4, Apr. 1971. 

8. Art. 55, Hague Convention No. IV, Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 
2227; TS 539; Bevans 631. 

9. Represented in, The Laws of War: A Comprehensive Collection of Primary Documents on International 
Laws Governing Armed Conflict (Reisman & Antoniou eds. 1994) at 69-71. 

10. Convention on the Prohibition of Military or Other Hostile Use of Environmental Modification Techniques, 
May 18, 1977, 31 UST 333; TIAS 9614. 

11. U.S. Department of the Army, Field Manual 27-10, The Law of Land Warfare, (1956). 

12. U.S. Department of the Army, Field Manual, 41-10, Civil Affairs Operations, (1993). 

13. Supra n. 3 at 2-3. 

14. U.S. Department of the Army, Command and General Staff College Student Text 101-5, Command and Staff 
Decision Process, 1-2-1, (1994). 

\5.Id. atII-2-3. 

16. U.S. Department of the Army, Field Manual 101-5, Staff Organization and Operations, (1984). 

17. Sullivan, Environmental Stewardship and Army Readiness, Senior Environmental Leadership Conference, 
Williamsburg, VA, Nov. 4, 1993. 

18. U.S. Department of the Army, Environmental Policy Institute, U.S. Army Environmental Strategy into the 21st 
Century, (1995). 

19. Memorandum, Deputy Chief of Staff for Base Operations Support, Headquarters, Training and Doctrine 
Command, Subject: TRADOC Environmental Integration Steering Committee, Sept. 28, 1994. 

20. U.S. Department of the Army, Field Manual 22-10O,Mi7«/ary Leadership, (1990). 

21. Supra, n. 3. 

22. U.S. Department of the Army, Field Manual 100-1, The Army, (1994). 

23. Supra, n. 20. 

24. U.S. Department of the Army, Field Manual 25-100, Training the Force, (1988). 

25. U.S. Department of the Army, Field Manual 25-101, Battle Focus Training, (1990). 

26. U.S. Department of the Army, Field Manual 100-10, Combat Service Support, (1995). 

27. Supra, n. 16. 

28. U.S. Department of the Army, Field Manual 34-130, Intelligence Preparation of the Battlefield, (1994) 

29. Memorandum, Deputy Commanding General, Headquarters, Training and Doctrine Command, Subject: 
TRADOC Environmental Integration Policy, Oct. 13, 1994. 

30. U.S. Department of the Army, Soldier Training Plan 10-77F15-SM-TG (DRAFT), 77 F Petroleum Supply 
Specialist, (1995). 

31. Memorandum, Deputy Chief of Staff for Training, Headquarters, Training and Doctrine Command, Subject: 
Instructions for Implementing Environmental Awareness Training into Institutional Courses, Nov. 29, 1993. 

32. Supra, n. 3. 

Chapter VI 

Protection of the Environment During Armed 
Conflict and Other Military Operations 

Major General Robert E. Linhard, U.S. Air Force* 

" W Y Then the war starts all bets are off." This is the consensus most 
VV environmental managers hold once a military action is under way. 
Several Air Force environmental managers we spoke to agreed. On the one hand, the 
Air Force has made an unwavering commitment to cleaning up and protecting the 
environment; on the other hand, military operations are capable of unprecedented 
destruction. On the surface it would appear that we are stuck with a dichotomy. In 
public statements, in our spending and in our day-to-day operations, the Air Force 
sets a high standard for environmental consciousness. Yet, during Operation Desert 
Storm the environmental damage was unprecedented. Environmental destruction is 
a fact of war and protecting the environment cannot stand in the way of military 
victory. This paper will address the Air Force's unwavering commitment to protect 
the environment, review the environmental destruction that occurred during 
Operation Desert Storm, and suggest possible ways that environmental damage might 
be mitigated during military operations. 

Air Force Commitment to Environmental Protection 

Air Force conservation programs can be traced back to World War II, to air 
base construction by the US Army Corps of Engineers for the Army Air Corps. In 
those days, our programs focused on soil erosion and dust control around the 
airfields. It was not until the sweeping environmental cleanup and hazardous waste 
control legislation of the 1980's that the Department of Defense undertook a 
multi-billion dollar installation restoration program. 

In 1991, Air Force Chief of Staff, General Merrill McPeak made protection and 
enhancement of natural and cultural resources an environmental leadership goal 
for the Air Force. As recently as March 1995, Secretary of the Air Force Sheila 
Widnall, referring to our military training areas, said: 

We know we have an obligation to the American People to practice and promote 
positive resource stewardship . . . The Air Force is the lead agency in developing the 
first course in managing natural resources in military lands . . . We recognize that 
this is not enough. We must establish new policies to fully integrate our stewardship 
responsibilities with the military mission. 

58 Protection of the Environment During Armed Conflict 

In April of this year, while presenting the Air Force Annual Environmental 
Awards, Air Force Vice Chief of Staff, General Thomas Moorman, asserted that the 
Air Force is a model for other government agencies. He said: 

The Air Force is proactive in environmental clean up . . . Our goal is simple: no 
violation of federal standards. To do this, we have made environmental compliance 
a mind set for our daily operations ... In our acquisition programs we have reduced 
our purchasing of toxic substances and made a deliberate decision not to incorporate 
environmentally damaging substances into our future purchases. Also, we 
established the Commanders' Environmental Leadership Course to train our 
commanders on how to recognize and solve environmental problems. 

Commitment to the environment at this level comes at a cost. Impacts on 
spending levels for cleanup, compliance, normal operations and even acquisitions 
have been substantial. Increased spending is a good news, bad news story, with a 
happy ending. Throughout the 1980s, we increased spending on compliance and 
cleanup. We are already seeing benefits in our compliance and pollution 
prevention programs. Spending has peaked and our investments are paying off. 

On the acquisition front, the story is similar. A recent study was conducted on 
the impact environmental factors are having on the acquisition process. Offices 
that participated in the study said they are required to consider almost every aspect 
of the environment. Examples include: ozone depleting substances, toxins, volatile 
organic compounds, noise, petroleum products, heavy metals, endangered species, 
radioactive materials, historical or cultural site preservation, respirable fibers, 
thermal waste, and others. Seventy percent of the program management offices 
reported adverse impacts on their programs attributed to an environmental issue. 
Primarily, the impacts are increases in costs and excessive delays. The good news 
here is most often in the ultimate result. Numerous success stories exist. For 
example, the Joint Primary Aircraft Training System (JPATS), the replacement 
for the T-37 aircraft, has no ozone depleting substances and is almost free of toxins 
and dangerous heavy metals. Similar success stories can be told of the C-17, the 
F-16 and the F-22 aircraft. 

The Dilemma of Environmental Protection and Military Operations 

Clearly, the Air Force is committed to protecting the environment. But how 
are we addressing the environmental damage due to war and training for war? At 
least one author has seen some humor in this apparent dichotomy. In a recent 
article in The Washington Times Mario Mozzilo noted: 

The ferocity of our nation's fighting personnel has been ameliorated by other 
species . . . Pressure by environmental managers and the Environmental Protection 
Agency (EPA), has resulted in the Pentagon agreeing to stop M-l super tanks and 
Bradley Armored Personnel Carriers from roaring through the forest and blasting 

Linhard 59 

the hillsides at Fort Bragg, N.C. Why? It seems this activity disturbs the nesting 
habits of the red-headed woodpecker . . . Public officials have closed some 25,000 
acres of these military reservations to maneuvers. One might ask what is a 
military reservation for, if not to conduct military maneuvers? Or, why these guns 
are permitted to . . . kill humans in wartime but not annoy woodpeckers in 

At least one point Mozzillo is trying to make is well taken. The Air Force is 
committed to protecting the environment, but we can use environmental programs 
to impact readiness. It is imperative that we consider all aspects of the environment 
when conducting our operations, to include war, but not to the extent that 
protecting the environment will inhibit our ability to successfully conduct 
operations or win a war. Damage to the environment during military operations, 
especially war, is inevitable. The Persian Gulf War stands as a recent reminder of 
war's destructive capability. 

Operation Desert Storm Destruction 

Through the eyes of television we learned, with the rest of the world, the true 
destructive nature of war. We also learned that environmental destruction during 
this conflict came in two forms; Saddam Hussein's deliberate destruction as an 
indirect way to achieve a military objective and the collateral environmental 
damage caused by Coalition forces while conducting military operations. The first 
case is a violation of international law. The second is apparently not. Laws of war 
reflected in custom and international agreements are problematic in this area. If 
the intent of the attacker is the destruction of enemy capabilities and not the 
devastating environmental side effects, then the environmental effects have to be 
considered as part of the traditional balancing of military necessity against 
foreseeable damage to noncombatants and civilian property. Where the expected 
collateral damage is not disproportionate, the attack is legal. Although outside the 
focus of this paper, it seems that Saddam Hussein's directive to deliberately spill 
millions of gallons of oil, blow up as many as 1,250 oil well-heads and leave 600 
wells burning is a clear violation of international law. Primarily, his attack was on 
the environment. His secondary objectives were either to shut down desalinization 
plants or to destroy the economy of Kuwait. 

In contrast, United States and Coalition forces avoided environmentally 
sensitive targets. Nevertheless, the destruction by Coalition forces was significant 
and lasting. Susan Lanier-Graham, in her text The Ecology of War discusses the 
environmental damage of the Persian Gulf War: 

Environmental hazards following the Persian Gulf War are primarily the results of 
oil fires and oil spills throughout the Gulf region . . . Smoke from the burning oil 
contained polycyclic aromatic hydrocarbons and trace metals such as nickel, 

60 Protection of the Environment During Armed Conflict 

chromium, and vanadium, all of which are known, or suspected to cause cancer in 
animals and humans . . . The smoke contains sulfur dioxide and nitrogen oxides that 
collect in the atmosphere and return to the surface as acid rain. The area's sandy soils 
are not acid tolerant, making agricultural conditions worse . . . Water supplies are 
also in danger of contamination from acid rain . . . Besides the publicized damage 
from oil fires and the spills, there were numerous other environmental 
disasters . . . Prior to the war, Kuwait had a camel population of 10,000. They are now 
estimated at 2,000 . . . The Kuwait City Zoo was destroyed by Iraqi soldiers . . . The 
bird population was decimated . . . and the damage to desert ecology, marine life is 
immeasurable. The thousands of military vehicles moving across the sand not only 
destroyed the fragile desert plants, but broke through the desert's natural crust that 
helps lessen problems of wind and erosion . . . One immediate result will be in the 
increased severity of dust storms. . . It has been estimated that as much as 25 percent 


of Kuwait's land surface has been devastated. 

Concern over environmental destruction during a military operation like 
Desert Storm takes a back seat to military objectives and protecting and taking 
care of lives. Once the war is over, the focus often shifts to the devastation and the 
need for remediation. Today, the United States and some of the Coalition countries 
are helping Kuwait clean up the residue and ravages of war. Working together, 
they are trying to ameliorate the ecological devastation that it caused. 

Reportedly thousands of tons of unexploded ordnance exist. There were more 
unexploded bombs than in other circumstances, because of the soft landing spot. 
Blowing and drifting sands make it impossible ... to easily locate objects ... Of 
the 88,500 tons of bombs dropped on Iraq, 17,700 tons, or as many as 20 percent 
may have never exploded ... An estimated 1 million unexploded Rockeye 
bomblets litter the U.S. designated sector of the Kuwait desert; an area 
comprising 1,207 square miles of the desert the United States is responsible for 
clearing. The difficulty with removing the Rockeyes is that they are small and 
not located in any particular pattern . . . Experts estimate it could be forty years 
before the desert is considered safe . . . Another closely related problem is the 
ammunition fired from the A-10 aircraft and the M-l tank . . . Both fire 
ammunition with depleted uranium projectiles . . . If the projectile hits a solid 
object, such as a tank, it disintegrates, leaving uranium dust. If the penetrator hits 
the ground it stays intact . . . the uranium, 8-10 lbs per projectile, remains in the 
desert . . . The Kuwaiti government has asked to have all of the depleted uranium 
projectiles removed from Kuwaiti soil . . . The price for clean up will be 



Coalition governments have already begun the clean up. 

What Can We Do? 

As military planners, we can ensure positive steps are taken to consider the 
environment throughout the entire range of military operations. We need to take 
the next step forward in environmental awareness. Environmental analysis and 

Linhard 61 

environmental planning should be incorporated into all of our plans. Additionally, 
as military operations are prosecuted (war or otherwise), environmental managers 
should become part of the process. During the operation, environmental managers 
should stay current on the weapons used and the destruction taking place (land, 
sea, air and species). Environmental analysis should continue throughout the 
operation with two primary concerns. First, what recommendations can be made 
to the decision makers, the leaders, to minimize permanent or lasting 
environmental damage and still accomplish the mission? Second, what will be 
required for eventual remediation of the area of operation? The idea here is not to 
advocate that environmental concerns be the primary focus. Rather, continued 
involvement by a knowledgeable environmentalist would ensure compliance with 
environmental laws and that the decision makers are aware of the environmental 
implications of their choices. Incorporating environmental managers into the 
process is our best option to minimize any permanent or long-lasting 
environmental damage. 

Incorporating environmental planning and involvement will take time. 
Current operational and war plans are being thoroughly reviewed. However, for 
the most part, they do not contain an environmental section. One war plan recently 
reviewed addressed operations in a chemical, biological, and nuclear environment, 
but the environmental consequences of those operations were not specifically 
addressed. In another plan, similar capabilities were discussed in terms of potential 
enemy capabilities, but, again, an environmental review was not undertaken. 

The Air Force is now in a transition phase. Our planning review guides need 
to be reviewed and updated. Likewise, the core directives we use to develop our 
plans should ensure we consider and manage the environmental impacts of our 
operations. We are almost there. An Air Force manual, entitled Operation Plan and 
Concept Development and Implementation, promulgated on April 4, 1994, includes 
an Appendix to the Civil Engineer Annex detailing environmental protection and 
compliance tasks to be addressed in Air Force unique planning. Chairman of 
the Joint Chiefs of Staff Instruction entitled Joint Operations Planning and Execution 
System, Volume II Planning Formats and Guidance contains an extensive 
Environmental Assessment Appendix. This Appendix requires a complete 
description of the contemplated military action. It discusses "major actions" and 
asks whether "significant harm to the environment or a global resource" will occur. 
In addition, this Instruction requires: analysis of options or alternatives, complete 
descriptions of the environmental settings (topology, vegetation, climate, wildlife, 
archeological and historic sites, water quality and air quality), the anticipated 
environmental impact of the operation and, finally, mitigation and monitoring. 
Although, this Instruction is still in draft, it will take us one large step closer to 
fully incorporating environmental planning, compliance and monitoring into our 

62 Protection of the Environment During Armed Conflict 

day-to-day operations. Admiral Jeremiah, when Vice Chairman of the Joint Chiefs 
of Staff, stated that: 

Our mission of preparing for war will still come first, but with it should come the 
need to aggressively eliminate any permanently destructive effects our actions might 
have on the environment. 

It is clear, we will never be able to eliminate environmental destruction from 
our combat operations. Our commitment to the preservation and protection of the 
natural environment does not have to impede our operations or adversely impact 
our ability to win. Environmental involvement throughout our operations will 
simply provide decisionmakers with planning, prosecution and eventual clean up 
options. With full integration of our environmental commitment into our plans 
and operations, we can maximize our ability to achieve Admiral Jeremiah's goal 
of no permanent destruction to our environment. 


*Dircctor of Plans, Deputy Chief of Staff, Plans and Operations, Headquarters, U.S. Air Force. 

1 . Lillie & Ripley,/! Strategy for Implementing Ecosystem Management in the United States Air Force, HQ USAF/CEVP, 
Pentagon, Washington DC, (unpublished). 

2. McPeak, Chief of Staff, U.S. Air Force, Apr. 17, 1991, in id. 

3. Widnall, Secretary of the Air Force, remarks to DoD Biodiversity Initiative National Wildlife Visitor Center, 
Laurel, MD, (Mar. 1,1995). 

4. Moorman, Air Force Vice Chief of Staff, remarks to the Annual Environmental Awards, Pentagon, Wash. D.C., 
(Apr. 1995). 

5. Nobile, Environmental Practice Management Offices, DSMC Press, Technical report, TR1-95, January, 1995, 
Introduction, Chapter 12, Impacts of Environmental Issues on Acquisition Programs. 

6. Mozzillio, Fire Power Fallen From the Nest, The Washington Times, July 19, 1995. 

7. Lanier-Graham, The Ecology of War, 43-51, 69-73, 123-136 (1993). 

8. Id., at 49-50. 

9. Id., at 52, 63-66. 

10. Department of the Air Force, Air Force Manual 10-402, Operation Plan and Concept Development and 
Implementation (1994). 

11. Department of Defense, Chairman of the Joint Chiefs of Staff Instruction 3122.03, Joint Operations Planning 
and Execution System, Volume II Planning Formats and Guidance (in draft). 

12. Supra n. 7, at 126. 

Chapter VII 
Panel Discussion: The Strategic Imperative 

Brigadier General Walter B. Huffman, JAGC, U.S. Army: Good afternoon. I'm 
Walt Huffman, the Assistant Judge Advocate General of the Army for Military 
and Operational Law. I am the moderator for the first panel of the Symposium. I 
am not going to take much of your time with my own comments, but I would like 
to say that I think that this is the perfect way to start the panel presentations with 
our panel entitled, "The Strategic Imperative and The Impact On The 
Environment," that is, what the military must be allowed to do in order to win 
across the spectrum of conflict. I think even more important is that Professor 
Grunawalt and his people were able to put together a panel with the breadth of 
experience and expertise represented here this afternoon. Because most of us in 
this room are lawyers or academicians of some kind, it is most important that we 
understand more than anything else what we are trying to do here. If we do not 
produce something that is relevant to these folks, to the operators, to the warriors, 
if you will; if it is not something useful to them, if it is not something viable in 
the context of the operations and missions that they must plan and execute, then 
it is simply irrelevant and whatever we say will have no bearing on the real world of 
operations in the military. 

I think the three presenters on this panel will tell you there are a number of things 
in the real world that the military can do in terms of its planning and in terms of 
sensitizing soldiers and commanders to environmental concerns and considerations. 
They will talk about developing a systemic approach to environmental problems and 
environmental issues in the operational mission, and they are going to talk about that 
across the entire spectrum of potential conflicts and operations. 

Our first presenter is Rear Admiral William Wright, U.S. Navy, Assistant Deputy 
Chief of Naval Operations, (Plans, Policy and Operations). Admiral Wright commanded 
the Wasp Amphibious Task Force during the intervention in Haiti and had an 
opportunity to see an environmental disaster across an entire country — close up. He 
has served on the National Security Council Staff and with the Arms Control and 
Disarmament Agency; assignments that obviously have immediate relevance to what 
we will be discussing at this Symposium. 

We have Brigadier General Walter "Skip" Garrett, U.S. Army. I might add that 
he has been selected for promotion to Major General. Skip is the Director of 
Strategy, Plans and Policy in the Office of the Deputy Chief of Staff of the Army, 
Operations and Plans. Skip commanded the 11th Air Defense Brigade during the 
Persian Gulf War, and spent a fair amount of time in the smoke that we talked 

64 Protection of the Environment During Armed Conflict 

about in Kuwait. So he has experienced the effect of an environmental disaster on 
a military operation firsthand. 

We also have Major General Robert Linhard, U.S. Air Force, Director of Plans, 
Office of the Deputy Chief of Staff, Plans and Operations. General Linhard has 
served as Special Assistant to the President for Nuclear Issues and Arms Control 
and has also chaired the U.S. Arms Control Support Group. Again, very relevant 
assignments to what we are going to be discussing today. Without taking any more 
of their time, I will turn the panel over to Admiral Wright, and ask him to make 
the first presentation. 

Rear Admiral William H. Wright, IV, U.S. Navy: Thank you very much. Because 
it is right after lunch, I thought I would begin with a long stream of expletives, 
just to make sure everybody was listening but also to let you know what I think 
about trying to curtail military actions in conflict. But, now that I know that these 
proceedings are, word for word, being written down, memorialized and that they 
will be used in follow-on conferences, I am going to delete that and lead right into 
my presentation. I have a paper that covers aspects of the Navy's concern with 
further curtailment of our ability to effectively engage in war. I don't think I need 
to remind you that war is pretty much an all out affair. It ought to be bloody; it 
ought to be damaging; it ought to ruin just about everybody's day that is involved 
with it. I would say that if you are going to train for that kind of activity, you should 
not find your commanders second guessing their ability to be able to carry out a 
specific plan of attack. This is especially true if you believe the other commander 
is not thinking on the same wavelength that you are. Let me hit two items and 
then get off the net because I think the real value of this conference is not the 
long-winded papers that we put out but the type of exchange that goes on and, of 
course, the questions. 

One, rules of engagement exist in the Navy today that have been around a long 
time. They constitute a very unique understanding between the commander and 
the young men and women that have to carry out the close-in actions; and they 
represent a very good dialogue over some very ticklish thresholds in engagements. 
As I was working up the Saratoga Battle Group, taking them out, it was very 
important for me to get face-to-face with our pilots and the commanding officers 
of our ships to talk through and watch their facial expressions as we talked about 
the "what if s" and about "how are you going to comport yourselP"; getting their 
answers and a little bit of a measure of how well they understood the written rules. 
But more importantly, finding out how they were going to act under pressure. I 
had traveling with me, and I have had on each of my staffs, a JAG officer who was 
first and foremost the man who represented my operational interests. He 
understood the dialogue that I was going through and he would also be the guy 
who would represent me during discussions about crossing various thresholds. As 

Panel Discussion 65 

we think about curtailments that involve the environment, that kind of rules of 
engagement dialogue is very important. I think the answer is not more rules. The 
answer, quite simply, is to create a culture of awareness; a sensing that you do not 
have to devastate the environment to accomplish the mission. That resides today 
in the Navy; we have those kinds of considerations. 

You heard Admiral Jim Stark and the dilemma that we placed him in as a 
commander charged with a U.N. mandate that said, "use all means necessary to 
accomplish the mission." Words like that, which come down with these mandates, 
are not very helpful when you are trying to put constraints on the commander. 
But, mandates of that kind are great because they tell him that he is to get the job 

Admiral Jim Stark, the operator, was faced with having to decide whether to 
put rounds into that ship. The accuracy of naval gunfire is not such that he could 
knock the rudder askew and turn the target 90 degrees so it heads off the coast. 
But, he had a sensing of what was being asked of him. 

I would like to turn briefly to deterrence and the nature of war, the nature of 
conflict. There is an element of deterrence that resides in the mind of the 
individual decisionmaker we wish to deter. He ought to be thinking about what 
he holds dear, and maybe some of what he holds dear is avoidance of long-term 
devastation of his environment. So, as you all look at what we ought to foreswear, 
you are also dabbling with deterrence in its purest sense and that is, war should 
be devastating. We should be doing things of a preventive nature to cause that 
threshold not to be breached. To the extent that you lower that threshold by 
preserving some options, by foreswearing that we will not endanger his 
environment, you are not serving deterrence. Thank you, this completes my 
comment for today. 

Brigadier General Joseph G. Garrett, U.S. Army: It is a pleasure to be here today 
and have a chance to talk to you. My appearance here is explained in a relatively 
simple chain of events. You invited my boss to speak. He decided I should come. 
I will tell you from the discussions this morning, I probably fall into the "wild-eyed 
warrior" category of people attending the conference today. I have no background 
in the legal field and no background in the environmental field. I have only been 
to Ottawa once in my life and I was not there for the conference. After having said 
all that, let me talk to you a bit about Army operations. 

In the aftermath of the Gulf War and subsequent operations in Somalia and 
Haiti, governments and international organizations have renewed the debate 
concerning military operations and their effects on the environment. People are 
now asking a lot of questions that are very difficult for us to answer. What are the 
long-term environmental impacts of those events and to what extent should 
military forces consider these as factors during planning and execution of military 

66 Protection of the Environment During Armed Conflict 

operations? In peacetime, environmental compliance is paramount. But, to what 
extent will environmental considerations apply during war? How should the Army 
consider these issues in its doctrine and training? 

Today I hope to examine some of those questions with you. First, I will talk a 
little about the Army's mission; what it must be able to accomplish to be successful 
on the battlefield and the possible environmental impacts of those actions. I will 
also talk briefly about how we currently include environmental considerations in 
our decision-making process. Finally, I will highlight some steps we are taking to 
integrate environmental considerations into the way we do our daily business and 
into our doctrine and training. 

I will start with the Army mission. The United States Army exists for one reason 
and that is to support and defend the Constitution of the United States. It does 
that by deterring war and, if deterrence fails, by providing Army forces capable of 
achieving decisive victory as part of a joint team on the battlefield, anywhere in 
the world and under virtually any conditions. To do this, the Army must be capable 
of decisive victory in full-dimensional operations. That encompasses employing 
all means available within the laws of war to accomplish our missions across that 
full range of operations, both in war and increasingly, in operations we call military 
operations other than war, or MOOTW. 

Victory is gained on the battlefield through swift and overwhelming application 
of the maximum available combat power. And combat power necessarily involves 
destructive action. It is destructive to people, it is destructive to equipment and it 
is destructive to the environment. But, that combat power is focused to minimize 
collateral effects as much as possible and to promote the peace which must follow. 

Army commanders multiply the effects of firepower and maneuver of Army 
forces by integrating the efforts of Air Force, Marine Corps, and Navy forces. 
Firepower produces destructive force but it is essential in defeating the enemy's 
ability and will to fight. There are no easy solutions. Environmental damage is an 
inherent consequence of combat operations. In ancient times, the massing of 
armies destroyed the harvest and turned the battlefield to mud. In recent times, 
the destructive power of weaponry has made the environmental impacts of war 
more devastating and proportionally greater than at any time in history. 

As von Clausewitz warned, there is no way that war can be made "nice." When 
a nation strives to make war nice, or accepts limitations on the use of force, it does 
so at its own peril. A less moral opponent will take advantage of that restraint, 
often to the detriment of the battle zone's civilian population, as well as to the 
army fighting with restraint. The Vietnam War contains many painful examples 
of this mistaken thinking. 

Actions that inflict environmental impacts during the conduct of war can be 
divided into three broad categories: collateral damage, wanton and unnecessary 
impacts, and modification of the environment. Of course, the United States 

Panel Discussion 67 

condemns the later two types of impact. Next, I want to discuss the possible 
collateral damage of our operations. 

To limit collateral damage we exercise disciplined operations. Discipline begins 
with trained leaders whose personal example and standards of conduct create well 
disciplined units and ensure proper conduct of operations on the battlefield. How 
an army fights is a mark of what it is and the principles for which it stands. Laws 
of war are only effective in reducing casualties and enhancing fair treatment as 
long as trained leaders ensure those laws are obeyed. The commander does this by 
building good training programs that reinforce the practice of respecting those 
laws and rules of engagement. 

As Professor Grunawalt said in this morning's session, the most important thing 
is the behavior of those soldiers in the field. War is tough; it is uncompromising and 
unforgiving. But, the Army operates within established rules of engagement and 
conducts warfare in compliance with international law and within the conditions 
specified by the commander. The Army applies combat power necessary to ensure 
victory through appropriate and disciplined use of force. 

During combat operations, emphasis must be placed on mission 
accomplishment. Any goal of minimizing environmental impacts is probably best 
achieved by applying the principles of war to achieve quick and decisive victory. 
The environmental impacts that are necessary and proportional to such a response 
must be allowed. That, in turn, requires that Army commanders have the 
maximum flexibility to maneuver against and surprise the enemy. So restricting 
the application of combat power to predictable patterns of behavior based solely 
on environmental considerations must be avoided. 

The Army has historically integrated a number of other factors, such as 
protection of noncombatants and historical and cultural sites, into its planning 
process. Take for example the protection of cultural sites and artifacts. Many 
elements on the staff have responsibilities for these considerations. The Civil 
Affairs Officer will establish their location; the Fire Support Officer receives 
locations to prevent destruction by artillery; and the Staff Judge Advocate provides 
legal advice to assure compliance with the law of armed conflict. A similar process 
takes place for natural resources. And, we are moving today to establishing this 
process more clearly in our doctrine. 

Let me briefly discuss some current efforts in doctrine and training. The Army 
is taking steps in both doctrine and training to prepare our soldiers and leaders 
for the increasing environmental challenges of Army operations. How we fight 
and how we train is all based on our doctrine. Doctrinal integration of 
environmental considerations is a significant focus of the Army's environmental 
strategy. It is a vital piece because how we train and how we fight is all doctrine 
based. At the same time, we are developing specific environmental requirements 
into our procedural or "how to" publications. In training, we are using a principle 

68 Protection of the Environment During Armed Conflict 

of integration, so rather than develop a lot of stand-alone courses, we are 
integrating a lot of environmental considerations into all levels of our existing 
training. Environmental instruction covers Army and unit environmental 
programs, applicable environmental laws and Army Regulations, soldier and 
leisure duties, and development of the environmental ethic. 

I think we all view stewardship as the key element of the Army's environmental 
ethic. The Army is charged with protecting and defending the nation and that 
includes safeguarding the environment as well. 

We are trying to integrate environmental considerations into specific military 
occupational training as well. For example, those soldiers who are fuel handlers, heavy 
equipment operators, mechanics and heavy weapons handlers require priority 
attention. We are taking steps now to address their immediate training needs. 

The Army must be capable of decisive victory in full-dimensional operations; 
be able to employ all means available across the full range of possible conflicts. 
The acceptable level of these impacts is not finite. The Army applies the combat 
power necessary to ensure victory through an appropriate and disciplined use of 
force in accordance with international treaties, rules of engagement and guidance 
from commanders. In some respects, protecting the natural environment may 
seem to run counter to the warrior culture and may even be seen to be an 
impediment to battlefield success. But, I think today we realize that the 
incorporation of environmental ethics into how the Army plans its battles is 
important. A sound environmental ethic, and specific doctrinal guidance, will 
prepare our soldiers and leaders for operations into the 21st Century and the 
challenges that they will have to face. Thank you. 

Brigadier General Huffman: Thank you General Garrett. Well, you have heard 
from our first two panel members, both of whom I would have to describe as 
adherents to what may be called the Colin Powell school of decisive victory. That 
is, once the political decision is made to go to war, you go to war to win 
immediately, decisively, without constraint. I believe Major General Linhard will 
give us a somewhat different view. I do know one thing, having read his paper, he 
is going to talk to us about something that is as important as General Garrett did 
in talking about the inculcation of environmental training and sensitivity into the 
Army's training and indoctrination publications and programs. General Linhard 
will talk about ensuring that environmental aspects of weaponry are considered 
in the acquisition process. So sir, with that I turn to you. 

Major General Robert E. Linhard, U.S. Air Force: This is, as my colleagues have 
noted, a nice break for us. Both because its a good chance to hear a different part 
of the discipline and because the three of us tend to meet together at least twice a 
week in what is known as "The Tank." Since we are the Deputy Operations 

Panel Discussion 69 

Deputies for the services, we get a chance to meet and regularly agree on things 
that are myriad in scope and deep in substance. And once again, that is the case. 

Quite honestly, as last of the three speakers here, I must say we fight jointly as 
a team and I agree with much, if not all of what has been said by my colleagues. 
But, I would like to put a little bit of an Air Force flavor on my remarks. At the 
same time, I would also like to re-touch upon some of the imperatives that we have 
talked about, highlighting the importance to us, as military professionals, of 
achieving military objectives that are appropriately set for us by our political 
leaders. The Air Force, like our sister services, has made a commitment to cleaning 
up and protecting the environment. This commitment does constitute a challenge 
given that our primary task is to conduct operations that are capable of 
unprecedented destruction. On the surface it would appear that we are stuck with 
a dichotomy. But in fact, in our public statements, in the development of our 
spending priorities, and in our day-to-day operations, the Air Force sets a high 
standard for environmental consciousness. Nonetheless, during Operation Desert 
Storm, and not withstanding the precision targeting that was available to us, 
environmental damage was significant. My point is that environmental 
destruction is a fact of war, and protecting the environment cannot stand in the 
way of achieving legitimate military objectives set for us in the appropriate way 
by our political leadership through legitimate orders, achieving those objectives 
at reasonable and appropriate costs. I am concerned greatly about the environment, 
but I am more concerned about the sons and daughters that you entrust to us to 
serve in the uniform of our country. We would hope that if you put us into a 
situation in which we have choices to make, and we are positioned legally and 
appropriately, that you will allow us the judgment to balance how much your sons 
and daughters are worth, how much the sons and daughters of Coalition members, 
and even of the opposition, are worth in the grand scheme of that balancing act. 

Air Force programs associated with the environment can be traced back to 
World War II. Air base construction by aviation engineer units provided efforts 
to protect the environment by limiting the negative impact of our base operations 
by reducing soil erosion and controlling dust around airfields. Unfortunately, I 
have to tell you that most of that also affected our ability to conduct air operations. 
So, we got there in a secondary way. In fact, minimizing the environmental impact 
of our combat operations during that period was largely beyond our capability. 
For example, in the course of our anti-oil campaign in Europe during WW II, our 
targeteers really did realize that hitting towers instead of oil storage tanks would 
both be militarily more effective and less harmful to the environment. But, our 
problem was that we required about 9,000 bombs to ensure the destruction of 
targets with a circular error of probable (CEP) of 3,000 feet. So you dropped an 
awful lot of ordnance, and you were grateful to hit any part of the refinery. Our 

70 Protection of the Environment During Armed Conflict 

efforts to do that mission led to the destruction of a lot of the surrounding 

By Vietnam, our bomb accuracy had improved to a point where it took about 
176 bombs to destroy a target with a CEP accuracy of about 400 feet. So, 
environmentally friendly bombing, if you want to call it that, was at least 
understandable, if not exactly feasible. Earlier in the war, we denied North 
Vietnamese allegations that we were bombing North Vietnamese rice irrigation 
dikes. We stated that we wouldn't do so. The North Vietnamese then moved 
anti-aircraft weapons onto the dikes, and although under international law we 
believe the North Vietnamese actions made their guns legal targets, we at first 
elected not to return fire against the anti-aircraft artillery (triple-A) batteries 
located on the dikes. Later we used cluster munitions to disable the guns and to 
kill the gunners without harming the dikes themselves. After the fact analysis 
suggests that perhaps the choice of attacks saved a good portion of the North 
Vietnamese dike network. Quite honestly, the recoil of the triple-A on those dikes 
may have caused quite a bit of the weakening and quite possibly the eventual 
destruction of some of the dikes. 

By the Gulf War, our improvements in weapons accuracy made minimizing 
collateral and environmental damage more feasible. Still, it takes really smart 
targeting to realize the full benefits of "smart bombs" and improvements in this 
area also were made. For example, we destroyed electrical switch gears, not 
generators. This allowed us to turn off the Iraqi electrical system during the war 
in a manner that allowed it to be quickly repaired when the war ended. The feared 
cholera epidemic never happened, perhaps due to the speed in which sewage 
treatment plants were energized after the war because electrical power, in fact, 
could be quickly restored. Similarly, we hit the valves of the Iraqi oil system, 
reducing the mobility of Iraqi forces during the war. At least in one instance we 
somewhat protected the environment and permitted somewhat of a faster recovery 
of the Iraqi oil industry in a sense, by that activity. Additionally, we may have 
defeated one Iraqi attack on the environment when our aircraft destroyed the 
manifold needed for the Iraqis to callously pour crude oil into the Gulf. 

Taken together, Coalition air attacks inflicted strategic paralysis on the Iraqis 
that supported and complimented the Coalition ground effort and probably 
reduced the time that ground operations were needed to successfully conclude the 
conflict. This obviously did minimize the environmental impact of our operations, 
but more importantly, it saved Coalition lives and, I would argue, lives in general. 

After Operation Desert Storm, it became obvious to us that protecting the 
environment would become more of a priority for the Air Force. I am confident 
that both my colleagues on this panel would have the same comment. In 1991, Air 
Force Chief of Staff, General McPeak, made protection and enhancement of 
natural and cultural resources an environmental leadership goal for the Air Force. 

Panel Discussion 71 

To this end, we have made environmental compliance a mindset, to the extent that 
we can, for our daily operations. For example, in our acquisition programs we have 
reduced our purchasing of toxic substances and made a deliberate decision not to 
incorporate environmentally damaging substances into our future purchases. 
Also, we established a Commanders Environmental Leadership Course because 
we firmly believe that environmental management consciousness and techniques 
need to be a part of the tool kit of the commander. Commitment to the 
environment at this level comes at some cost. Impacts on spending levels for 
cleanup, compliance, normal operations and even acquisitions have been 
substantial. Our increased spending in this area is somewhat of a good news/bad 
news story with somewhat of a happy ending. Throughout the 1980's, we increased 
our spending on environmental compliance and cleanup and now are beginning 
to see, we believe, the benefits in our compliance and pollution prevention 
programs as we turn some corners. Spending, we believe, has peaked and our 
investments are paying off satisfactorily. 

On the acquisition front the story is similar. A recent study was conducted on 
the impact of environmental factors upon our acquisition process within the Air 
Force. Offices that participated in that study said they are required to consider 
almost every aspect of the environment. Examples included ozone depleting 
substances, toxins, volatile organic complexes, noise, petroleum products, heavy 
metals, endangered species, thermal waste, and respirable fibers. Seventy percent 
of our program management officers reported adverse impacts on their programs 
attributed to these environmental interests. That's just natural; it does cost to do 
this. Primarily, the impacts were increases in costs and in significant delays in 
acquiring what we wished. The good news here is that most often we have found 
that we have been able to achieve positive results. Numerous success stories exist. 
For example, the new Joint Primary Aircraft Training System, a replacement 
aircraft for our primary initial jet trainer, has no ozone depleting substances and 
is almost completely free of toxins and dangerous heavy metals. Other success 
stories can be told of the track record of the C-17, the F-16 and the F-22. 

So, as a service, and again I would note our sister services are equally as 
committed, we in the Air Force are committed to protecting the environment. But 
we must use and can use environmental programs in a way that will allow us to 
maintain and enhance readiness. It is imperative that we consider all aspects of 
the environment when we are conducting operations, to include the waging of war. 
But, we cannot consider the environment to the extent that protecting the 
environment will inhibit our ability to successfully conduct that mission for which 
we were primarily constituted. Damage to the environment during normal 
military operations, especially in war, is inevitable. 

I would like to again say a few words about targeting. Earlier I said it does you 
little good to have smart bombs and not have smart targeting to allow you to 

72 Protection of the Environment During Armed Conflict 

reconcile the differences between the obvious damage that could be inflicted by 
military weaponry and the objectives that you need to gain. Although to some 
extent precision targeting can prevent, and has prevented, collateral destruction, 
I think we, along with the rest of the world, witnessed through the eyes of 
television, just how destructive war can be. We learned that environmental 
destruction during conflict can take at least two forms. In the Gulf War, for 
example, Saddam Hussein deliberately caused environmental destruction as an 
indirect way to achieve a military objective. At the same time, collateral 
environmental damage was inadvertently caused by Coalition Forces while 
conducting lawful military operations. 

As your discussions this morning demonstrated, the laws of war reflected in 
custom and international agreements are clear and yet problematic in some 
respects in this area. The problem is the degree to which the intent of the attacker 
must be ascertained. If the intent of the attacker is the destruction of enemy 
capabilities and not devastating environmental side effects, different sets of 
concern basically come into play. Environmental effects have to be considered as 
part of the traditional balancing of military necessity against foreseeable damage 
to noncombatants and civilian property. That balance leads to some conclusions. 
Saddam Hussein's directive to deliberately spill oil into the Gulf, to blow up as 
many oil wellheads in Kuwait as possible and to leave those wells burning, seems 
to me to be a violation, and should be a violation of international law. Saddam's 
attack was on the environment, but we cannot forget that as the aggressor, he also 
had a penalty to pay. The equivalent in criminal law, I would think, is that a man 
who goes in to a store with the intent of robbery, and in the process kills the 
shopkeeper, is responsible for murder as well as robbery. In this sense, the problem 
is that we had an aggressor who, as a direct consequences of his actions, for 
whatever reasons, also committed a fairly significant degree of environmental 

In contrast, the United States and Coalition Forces tried to avoid, and did avoid 
reasonably well, environmentally sensitive targets. Nonetheless, the destruction 
that was caused by Coalition Forces was significant and lasting. Concern over 
environmental destruction during a military operation like Desert Storm must 
take a back seat to military objectives that are legitimate and correctly constituted. 
However, once the war is over, the focus shifts to the devastation and the need for 
remediation. Today, the United States and some of our Coalition allies are helping 
Kuwait clean up the residue and ravages of that war and are working together to 
ameliorate the damage that was done. 

What then can a military planner do? As a military planner I would argue that 
we can ensure that positive steps are taken to consider the environment throughout 
the entire range of military operations. Environmental analysis and environmental 
planning should be incorporated into our plans in the sense the commander should 

Panel Discussion 73 

have environmental management expertise in his command tool kit and he should 
ensure that environmental planning plays an appropriate part in target selection 
and target analysis. 

Additionally, I would argue that as military operations are prosecuted, whether 
in war or operations other than war, environmental concerns should remain part 
of the process. During these operations, we commanders must be conscious and 
stay conscious of the activities and the weapons being used and the destruction 
taking place. Environmental analysis should concentrate throughout the 
operation on two primary concerns. First, what recommendations could be made 
to higher authority — to the decision makers, to the senior military commanders, 
to the political leadership, to minimize permanent and lasting environmental 
damage and still accomplish the required mission. And second, what would be 
required for eventual remediation in the area of operation. 

The idea here is not necessarily to advocate that environmental concerns be a 
primary focus. In fact, they should not be. At the same time, it is so obvious, and 
here I agree heartily with the comments made by my colleagues, that you can take 
actions that reflect some balance in this equation. Incorporating environmental 
management into the process is an option that allows us to minimize, to the extent 
that it is appropriately consistent with achieving legitimate military aims, without 
any permanent or long-lasting environmental damage. 

The Air Force right now is in a transition phase. Our planning and review 
guides, which we use to conduct the way we train and fight, need to be reviewed 
and are being updated. Likewise, the core directives that we use to develop our 
plans are being updated to ensure we consider and manage the environmental 
impacts of our operations. I would cite Air Force Manual 10-142, our Operational 
Plan and Concept Development Directive, which was published in April 1994. 
This Directive provides an Appendix for our Civil Engineers that allows us, and 
details for us, environmental protection and compliance tasks to be addressed as 
specific and unique Air Force planning activities. 

I also would cite the current Joint Chiefs of Staff Instruction 3122.03, entitled 
Joint Operations Planning and Execution, Volume 2, which talks about planning 
formats and guidance, and contains an extensive Environmental Assessment 
Appendix. There is activity here that shows that we in the military, although 
recognizing the primacy of achieving our principal mission, are not unaware of 
the requirements involved in protecting the environment. 

Finally, I would say that most of my career has been involved in strategic 
nuclear weapons. We were always painfully aware of what the environmental 
impacts are. We had to deal with everything from the lessons learned from a 
Chernobyl, to the considerations of a "nuclear winter". Good common sense 
practice is very much in keeping with a good military operation. I would also add 
one last point. This morning there was quite a bit of discussion about the difficult 

74 Protection of the Environment During Armed Conflict 

challenge to the commander and his responsibility to make judgments. There are 
ways that he can be helped. I think that in considering the choices that we have 
to make, it is clear that you have to approach it on a case by case basis; you need 
to consider the circumstances involved. I would argue that it is a different 
circumstance for a military in legitimate national defense in the face of a superior 
aggressor for which it had not initiated conflict. If the choice is saving the lives of 
your citizens and protecting your nation and in so doing a certain degree of 
environmental damage is necessary, that is quite different than the choice that we 
talked about this morning even if we were to assume that Saddam Hussein chose 
to burn oil wells to protect his forces from observation and strike. Again, Saddam 
must suffer the consequences of having started that aggressive action. 

I think that we also have to recognize the responsibility that is placed on our 
political leadership. You can allow a military commander a bit more latitude in 
achieving his objectives in appropriate ways if we ensure, as mentioned by our 
moderators, that we have a good set of principles and make good choices on when 
you put the military in a position to achieve objectives. If our political leadership 
puts us in a position in which stated objectives cannot be achieved, it puts more 
pressure on the commander and you need to recognize that. Thank you for your 

Rear Admiral Wright: It was interesting listening to all of this and I want to 
capture what I think is coming through three slightly different military cultures. 
You have to understand you have representatives here of Services that work in 
different environments. I am not trying to be cute about this but I thought all of 
us agreed that war is something that should be exempt, it should be awful, and the 
rules that we ought to look at need to be carefully considered. We all agree that 
mission accomplishment is important and that you do not want to put such weight 
on the mind of the man that is charged with carrying out the mission that he cannot 
complete it. The Navy culturally favors freedom of action. You probably have 
heard of our love of "ad hoc-cry"; our feeling that no rules are better than any rules. 
In contrast, the Army lives on the land in a very constrained environment. They 
are up close with the people. I thought I heard the Army saying, "Let us know 
what the rules are and we will develop them into our doctrine and the way we 
fight." That is not to say they are going to accept crazy rules, but essentially it is 
an understanding of the reality of a constrained legal environment and it was going 
to be a fact of life. The Air Force, which has always valued precision, has said, I 
think, "Let us know the letter of the law so we can do exactly what we want to do, 

Panel Discussion 75 

Colonel Lyn L. Creswell, U.S. Marine Corps: If you are a Force Commander 
planning to deploy your forces into the field, would you put something in your 
"Commander's Intent" regarding the environment, and if so what would you say? 

Brigadier General Garrett: By the way, everyone should notice that there are no 
Marine Corps representatives on our panel this afternoon. In response to your 
question, unless there is some specific consideration that you want to highlight, I 
do not think you would put anything in your "Commander's Intent." If there was 
a dam, or if there was a pyramid, or there was something unique that required 
specific consideration, I think you would be well advised to mention it. But, in 
most cases, I think sound environmental practices are pretty well built into our 
standard operating plans and policies. 

Major General Linhard: I agree. But, I also think we would find some coverage 
of environmental issues in the rules of engagement. 

Brigadier General Garrett: If you go back to my personal experiences in Saudi 
Arabia, in our actual operations orders, there was nothing mentioned that had to 
do with the environment. But, if you looked at our field operating procedures, 
there were a lot of things built-in that dealt with environmental considerations. 

Rear Admiral Wright: I would say, "no," as well, because I think the "Commander's 
Intent" really places overriding emphasis on the commander's words. I would not 
want to put in the mind of the people I am requiring to carry out a mission an extra 
degree of uncertainty about what I expect. They ought to be able to make choices 
at their level without a "bias" in the statement of the "Commander's Intent". 

Colonel James A. Burger, JAGC, U.S. Army: At a recent staff meeting at my 
command in Naples, my commander, who is a Navy Admiral, said the primary 
consideration in his mind, when he was approving the recent targeting list for the 
air campaign that went on against Serbian heavy weapons and other targets in 
Bosnia, was the prevention of collateral damage. And, of course, one of the reasons 
why he said that is because he had in mind that we had to follow a U.N. mandate. 
We had to keep together a coalition to have the support within NATO to 
accomplish this mission. We were trying to accomplish some very specific things 
to impress upon the Serbs why we were doing this, to change their minds, and to 
get them to do something. Of course, this is within the context of a very special 
mission that we were given. I just wondered if the members of this panel might 
comment on the new types of missions that we have and perhaps why we need to, 
or might need to, consider things like danger to the environment more in these 

76 Protection of the Environment During Armed Conflict 

types of missions than we would in the more traditional missions that the Navy, 
the Army, and the Air Force have been conducting? 

Major General Linhard: Speaking as a U.S. military officer involved in "joint" 
matters, I believe we are looking at situations in the future where, hopefully, for 
some time to come, the homeland of the United States is not at risk. What is at 
risk, the political objective to which we have committed forces, is more limited. 
On the other hand, the group that we may be dealing with all too often operates 
in a much less limited environment. So I think you legitimately need these kind 
of checks and balances. The situation of a NATO war in central Europe, with a 
likely threat of escalation to a global war in which the upper end of the NATO 
triad obviously involves U.S. strategic forces, which brings both the Soviet Union 
and NATO directly and immediately at risk, that is a different environment. There 
was great risk in that setting and interest was very high. But, where you do inject 
U.S. military forces to achieve political objectives, it is absolutely right to have 
recognition of the need for some balance. I would hope that that recognition of 
balance occurs at the political level. When we go in militarily we have got to be 
sensitive to it. Let's face it, when we talk about limited political objectives, once 
you are on the ground, as my friends in "green" often are, and we, in light blue, 
are on occasion, the individual soldier, sailor, or marine on that mission has one 
unlimited concern; he is putting his life on the line. 

Rear Admiral Wright: Defining clearly the right targets, whether for 
environmental reasons or for cultural or spiritual reasons, allowed us to provide a 
technological demonstration of our capability that worked well on the people it 
was meant to work on. It was a measured, carefully orchestrated campaign. 

Brigadier General Garrett: I would just say in general that in MOOTW we are 
finding a lot tighter control in the initial steps of the operation. I think there are 
some other considerations that come in to play when you are running an operation 
like that, especially initially. By the time you get the Army committed in the field 
with clearly defined military objectives, those limiting considerations do not apply 
quite like they do in circumstances such as those we have discussed as currently 
being in effect in Europe. 

Dr. Glen Plant, London School of Economics and Political Science: I think no 
one here would disagree that war is unhealthy. It is bad for the health of humans, 
animals, plants, whatever. No one disagrees that the military have a job to do in 
wartime. Perhaps I am being a little unfair in suggesting this but I hope I am not. 
I think there is something implicit in what you say that misstates the question. If 

Panel Discussion 77 

I may use the usual trick, a Jesuit trick of rephrasing what you say in my own 
words. As you know, Englishmen are particularly fond of animals. If you are 
talking to an Englishman about the environment, he will immediately think you 
are talking about something cuddly and warm. A senior British military officer 
recently said to me, "I would not endanger the life of one of my men for a punch 
of animals or trees." If that is partly what you are suggesting, you are misstating 
the question. I would say that what we have to protect is certain fundamental 
environmental values, which, if they are thought about clearly, will put a new 
perspective on the value of your mission, or indeed the value of some of the lives 
of your men. Of course, nobody wants lives to be sacrificed unnecessarily. If there 
was a war that left large parts of Mexico an infertile desert, not only would you 
have the problems of massive disruption in population, which in itself could lead 
to widespread death and illness, you would also have the problem that the 
Englishman would be most concerned about. You would lose the Monarch 
Butterfly. In addition, you would lose things that make up important parts of what 
is known as biological diversity. You may lose substances that we might not even 
know of that are important for medical purposes if only we have the wherewithal 
to discover them; things that are important for various industrial uses. For 
example, substances that you could use to make new and important resins, et cetera. 
But I think that perhaps most important of all, you may endanger the world's food 
security. We all know about monoculture, the lack of genetic diversity among our 
major food crops. Well, it may be that we are going to wipe out some wild wheat 
strain that is the answer to some blight that may hit us like an Irish potato famine 
of the future. So if you start to think in those terms, it is not a straight forward 
question of man versus beast. 

Major General Linhard: I expect St. Ignatius would be very happy the way you 
rephrased the question, but I would not accept that phraseology. I will give you 
that there are edges of the envelope that are easy to resolve. As professional military 
officers, it is a part of our job to engage in the use of force that entails the least risk 
of loss of life. What we are talking about is a different environment and I am not 
talking about an individual life here. I do believe there will be circumstances in 
which a choice must be made between achieving a military objective and protecting 
the wetlands with the casualty rate being significantly greater. You may be able to 
worry about the Monarch Butterfly, but I must be worried about the youngster 
from Kansas entrusted to me for his life and that is what I get paid for. All I ask 
is, listen to the case that the commander makes after it is done. If we, the military, 
made a bad call, a terrible call, we are culpable. But, I would also note, the body 
politic would be equally culpable. I am concerned with every life that is lost. 

78 Protection of the Environment During Armed Conflict 

Brigadier General Garrett: I would say that if there are stated environmental 
concerns, then they will get factored into the planning process as much as possible. 
I mean, if somebody tells me that there is "X" amount of wheat out there, or "X" 
amount of butterfly habitat, or "X" amount of whatever, then you can factor that 
into the planning process. In the final analysis, depending upon what the 
requirements of the stated mission are, you may be able to accommodate those 
factors or not. But, to be able to go into combat and say, "Gee, there may be 
something there, or we might want to save this as a nature park 20 years from now," 
is not going to happen. But if there is something that is known, I think the planning 
process will accommodate that consideration. But when, at the end of a mission, 
as General Linhard said, you balance the mission and protection of our soldiers 
and our forces versus pure environmental considerations, environmental 
considerations are not going to weigh that heavily. 

Brigadier General Huffman: There are different levels of environmental 
decision-making. The decision-making Dr. Plant is talking about is at the level 
that Mr. Harper and his contemporaries may make which is always a factor, or 
Baghdad would be a nuclear waste-pile right now - not to be flip about it. 
Obviously, environmental considerations are a part of the strategic and 
military-political planning process. What our panelists are talking about is that 
once engaged, it becomes quite a different equation for the commander on the 
ground and his people. 

Professor Myron H. Nordquist, Naval War College: Just as a follow-up to what 
you were saying, I have been stewing over what Mr. Harper said earlier. I am 
worried that our legal arguments, based on environmental concerns, may be used 
against us. For example, the International Court of Justice has been asked by the 
United Nations General Assembly whether nuclear weapons are legal or not. I am 
thinking about Saddam Hussein who, if you could believe his brother-in-law, was 
deterred from doing even worse things than burning or dumping oil because he 
knew we had nuclear weapons. I assume that we informed him that we would be 
inclined to use those weapons if he were to engage in biological and chemical 
attacks. I guess I am saying that it was good for us and the world that we had a 
deterrent for that. But, I am concerned if we are not careful about the legal 
arguments that we make when we talk about condemning environmental damage, 
that others, perhaps to include the International Court of Justice, might pick up 
some of the things we are saying and conclude that the environmental degradation 
that went on in the Persian Gulf area was so bad, just think how bad it could have 
been if there was a nuclear bomb exploded. I don't know if anyone on the panel 
shares my concern, but I have been sitting here and stewing about it. 

Panel Discussion 79 

Rear Admiral Wright: I agree with you. If there is anything that you can capture 
about deterrence, and we are always looking at that murky area, it is that we 
understand strategic deterrence. And, we understand that somewhere below the 
strategic level there has to be a form of deterrence that still will hold off a very 
unfortunate exchange. To the extent that you invent rules that remove uncertainty 
from a potential aggressor's calculations, you are destroying deterrence. That 
seems to be at the heart of what you are saying; defining these things, making legal 
pronouncements such as no first use of nuclear weapons, thereby destroying 

Mr. Conrad Harper, Legal Advisor, U.S. Department of State: I would not want 
anyone to think that I did not have in mind the nuclear weapons cases in the World 
Court. Jack McNeill and I have been very much concerned about those cases. They 
will be argued beginning at the end of October or early November 1995. But, I 
think I can speak directly to your concern. The Court has before it, broadly 
speaking, these issues; whether or not the possession, the use, or the threat of use 
of nuclear weapons violates international law. At these abstractions, we take the 
view, among others, that the question first of all is not admissible, and that in any 
event, the court should not use its power to address the question. And, finally, as 
a matter of substantive law, it is not a violation of international law to use, or 
possess, or threaten to use such weapons, as such. Having said that on one level of 
abstraction, I will take it down to the Gulf War situation where I am perfectly 
prepared to say that, had there been dumped one gallon of crude oil into the Persian 
Gulf, I would not have argued that there was a violation of internationally accepted 
norms by Saddam Hussein. It is a question always of measure, of degree, of 
proportionality. And, just as I am not prepared to say that it would be a violation 
to dump one gallon of oil, I am not prepared to say that the use of one bomb would, 
in and of itself, constitute a violation of international law. 

I have been struck, if I may proceed to a second topic, by the sense in which the 
panel has reinforced the notion that these legal norms are important. That is to 
say, when we look at the question of bombing a valve, or bombing a switch, instead 
of a tower, instead of a tank, we may be making an environmentally sound 
judgment. But, we are also making a judgment that saves ordnance, saves fuel, and 
deliverance of ordnance, and ultimately may prevent what would otherwise be a 
catastrophe later in time, such as a cholera outbreak, if in fact we have done 
maximum damage rather than that which was absolutely needed. So I see law as 
not always in tension with military necessity. Sometimes the law can reinforce, it 
can guide, it can discipline, and it can illuminate how we should act. 

Professor Bernard H. Oxman, University of Miami: It occurred to me in reading 
some of the literature on the subject, including some more intensive reading that 

80 Protection of the Environment During Armed Conflict 

I did in preparation for this Symposium, that lawyers are very good at making 
strategic use of legal rules for their own immediate purposes. But, one of the things 
that struck me as odd about some of the literature in this field is that lawyers also 
tend to forget that others, including political and military leaders, can do exactly 
the same thing. I was wondering if any of the panelists ever felt that attempts were 
being made by an adversary to lure them into a violation of the laws of war, or into 
alleged violation of the laws of war, for example, with respect to targeting. 

Major General Linhard: I cannot think of any situation that I participated in 
where I thought I was being led by the adversary into doing something like that. 

Dr. John H. McNeill, Deputy General Counsel, U.S. Department of Defense: 

There was one instance of an apparent attempt by the Iraqi government to lure us 
into attacking fighter aircraft parked near the ancient Temple of Ur, an important 
cultural object. Of course we did not fall for it and it was obvious that as long as 
those aircraft were assigned the mission of being on static display next to that 
particular temple, they would be out of service as far as combat was concerned. So 
our need to neutralize them was accomplished just as well by not attacking them. 
Perhaps that is a crude example of what Professor Oxman is asking about. 

Brigadier General Garrett: There are instances like that, but there is uncertainty 
over whether that is a serious and sophisticated effort to try to cause us to stumble 
into a violation of legal norms or if it is the action of an indecisive commander 
who is doing something basically crude. As an example, when the enemy emplaces 
"triple-A" on dikes, can we know his purpose? Is he trying to lure you into 
targeting a population center when he moves his military capability into that area 
or is it a matter of him trying to protect it because he does not see us going in after 
it. So, I am not sure if it is a lure as much as it is protection. I cannot think of any 
sophisticated examples. 

Brigadier General Huffman: There were a number of instances, such as the dual 
use of a hospital in Somalia as a sniper's nest, and other things like that. Which 
is, of course, the analogy that is most often drawn between environmental 
considerations and the law of war in general, that is, collateral damage to civilians 
and to protected property. 

Dr. Dieter Fleck, Director, International Agreements and Policy, Federal 
Ministry of Defense, Bonn, Germany: In contrast to some of you not majoring 
in this discussion, I doubt whether we should be too pessimistic. I consider these 
presentations this afternoon to be excellent examples for the necessity of 

Panel Discussion 81 

cooperation between operators and legal advisors in this field. I understand we 
will have ample opportunity to discuss these questions during the forthcoming 
days, but this is an opportunity to say that, yes, we should try to elaborate further 
details of military planning which remain subjective, which remain relative, in 
their importance. We are spelling out what has been said in the Additional 
Protocols and some of these rules are far exaggerated in their importance. I would 
strongly recommend that if you are considering ratification of the Additional 
Protocols, which I, as a German, would favor extremely, you must not concentrate 
solely on the environmental provisions. The most important legal principle in this 
field is not Article 25 or Article 45 of Additional Protocol I, it is not the ENMOD 
Convention - which I consider one of the most unimportant international 
conventions I ever came across. No, it is the simple principle of proportionality 
which has been spelled out by people like Professor Martens, or it is apt to have 
been said in this room by Admiral Mahan, in 1907. The question today is whether 
we respond to this challenge, whether we agree to elaborate new plans which would 
remain relative, or which would not be considered as one last word to interpret 
the rules. Indeed, operators and legal advisors should work together and they 
should never forget what they are fighting for, what they are defending. Certainly 
some of the examples made by Dr. Plant, for instances, are exactly the ones which 
we are interested in avoiding, both on the political side, and the miliary side, and 
definitely yes, on the legal side as well. 

Rear Admiral Horace B. Robertson, J AGC, U.S. Navy (Ret.): One observation 
that Mr. Harper advanced for us this morning is that we have plenty of rules; the 
problem is enforcement. We have not addressed the question of enforcement this 
afternoon. I would like to hear what our operational compatriots have to say about 

Major General Linhard: I think the issue that will have to be resolved is a political 
question, that is, whether you wish to use military force to coerce a consequence; 
a price. Once you have decided to extract a price, there are a number of things that 
we can do depending on the violator. If we know that someone has violated 
international law, and if we know who that someone is, and once we are given clear 
political direction and achievable military objectives, we can and will act. But, I 
cannot suggest a specific action. 

Rear Admiral Wright: One of the things that we have to consider is that this issue 
is of such a broad scope. Essentially, the environment can be thought of as a 
resource. We were talking about preserving bio-diversity and a slowing down of 
the evolution process. That is one end of the equation. There are going to be issues 

82 Protection of the Environment During Armed Conflict 

involving misuse of resources, things like fishing, even drinking water and the 
like. We have a huge umbrella under which to talk about environmental damage. 
I think you have to be specific. We focused on those things that impact our ability 
to carry out war-like missions, not day-to-day matters like taking care of the 
contaminated waste aboard ships, that sort of thing. We have comprehensive 
programs and we are enforcing them. Those kinds of housekeeping things are 
automatic. Sure, we have a spill from time to time of some fuel or other 
contaminant into the water, and we do a routine cleanup. There are lapses in our 
environmental awareness but they are quickly repaired, remunerated or perhaps 
even resolved in court. Now if you are talking about the war-fighting side of the 
equation and are asking whether we ought to have a Nuremberg tribunal for crimes 
against the environment as we do for crimes against people, my reply is, perhaps. 
I get back to the Golden Rule. If you can win the war and you can start inventing 
all the indignation you want, you can essentially take your former adversary to 
task using any hook you are looking for: too much smoke, fouling the atmosphere, 
etc. If you win, you can make him feel economic and political pain. But, if you lose, 
you better stand by, hire lawyers and be ready to repel boarders. 

Brigadier General Huffman: Let me say this with regard to what U.S. forces will 
do about an environmental violator in its own ranks. There is no doubt in my 
mind that a person that intentionally violated our rules of engagement reflecting 
on environmental damage would be dealt with very harshly. There is no doubt 
about that. 

Professor Jack Grunawalt, Naval War College: The U.S. Navy has developed 
some guidance along these lines that is now being promulgated to U.S. Naval 
Forces, Marine Corps Forces and Coast Guard Forces. I would like to read a 
statement to you and ask you if you are comfortable with what this guidance 
provides with respect to environmental considerations. 

It is not unlawful to cause collateral damage to the natural environment during an 
attack upon a legitimate military objective. However, the commander has an 
affirmative obligation to avoid unnecessary damage to the environment to the extent 
that it is practicable to do so consistent with mission accomplishment. To that end, 
and as far as military requirements permit, methods or means of warfare should be 
employed with due regard to the protection and the preservation of the natural 
environment. Destruction of the natural environment not necessitated by mission 
accomplishment and carried out wantonly is prohibited. Therefore, a commander 
should consider the environmental damage which will result from an attack on a 
legitimate military objective as one of the factors during target analysis. 

Panel Discussion 83 

I ask in turn, whether from the Navy, the Army, the Air Force perspective, you 
are comfortable with that range of guidance? 

Rear Admiral Wright: This gets back to the question of culture, and embedding in 
our commanders and our people in the Navy an appreciation for the environment. 
With all those right words such as "affirmative obligation," "unnecessary damage," 
"due regard," "not necessitated by mission accomplishment," and "factors during 
target analysis," I sit down with a JAG officer, and we can go over the mission and 
bounce back and forth the considerations given and the other courses of action. I 
can live with that kind of broad guidance. It is broad enough that I do not think 
it would cause me to force an unworkable constraint on the people who are going 
to execute the small parts of the mission. What I do not want to do is put in their 
minds an additional level of uncertainty with regard to what I am expecting. I 
would interpret the need to protect the environment with regard to the mission 
and I would spell it out for them. And I think I could probably do that through 
my guidance. 

Brigadier General Garrett: I think the guidance you mentioned is pretty explicit, 
but I would tell you, I do not think it is anything that does not already exist in the 
minds of commanders and staffs out there in the field today. I think they are all 
aware of the realities of having to deal with environmental damage. I think those 
considerations are being factored in. 

Major General Linhard: I would agree. I worry more about being "helped" by 
someone adding to that kind of single issue rule when we, as commanders, do not 
live in a single issue world. If I have to make choices, I would prefer to have general 
guidance, some broad, common sense guidance and then be judged on the exercise 
of my judgment, my ability as a commander, rather than be "saved" from 
exercising my judgment by being given a set of specific rules which, though drafted 
in good conscience, may not fit the circumstances that I face. That, no commander 
should be forced to live with. 



Chapter VIM 

The Impact of War and Military Operations 

other than War on the Marine Environment: 

Policy Making on the Frontiers of Knowledge 

Dr. Ronald A. DeMarco and 
Commander John P. Quinn, JAGC, U.S. Navy* 


In recent years, the Navy and other military services have increasingly evidenced 
an environmental stewardship ethic in their operations. The impetus for this 
new priority is of both internal and external origin. As microcosms of society, the 
military services are comprised mainly of young Americans for whom 
environmental responsibility is an imbued value. As these individuals have 
assumed leadership positions, the military services have incrementally adopted an 
environmental protection ethic. 

An equal or greater impetus, however, stems from sources external to the 
military services. Domestic law, including that which executes international 
agreements, has substantially increased the environmental protection 
responsibilities of military commanders. While such responsibilities are 
understandably more visible in Military Operations Other Than War (MOOTW) 
than in combat, under all circumstances the environmental consequences of 
military operations remain a legal, moral and public relations concern of the 
military commander. 

Today, environmental concerns are a significant factor in the calculus of war 
and MOOTW. The emergence of this new concern has in turn highlighted what 
may be a critical data gap for military commanders and national policy makers: 
from a scientific perspective, the impact of combat and of MOOTW on the marine 
environment is not well understood. Hence, military commanders and national 
policy makers are forced to make decisions based on less than complete 
information. Various approaches can be taken regarding this uncertainty. Some 
might advocate a precautionary approach, refraining from action unless and until 
the probable effects are known and determined to be acceptable. Others might 
strike a different balance, allowing unfettered military operations regardless of 
environmental consequences, perhaps tempered by control only when science can 
demonstrate with certainty unacceptable results. Still others might take a middle 

88 Protection of the Environment During Armed Conflict 

course, adopting a broad policy of avoiding widespread, clearly evident 
degradation, based on the limited available scientific information. 

Overlaying this uncertainty is the reality that in order to win during war, 
realistic training must constantly be conducted during peacetime. For purposes 
of this paper, peacetime training, whether in U.S. or foreign territorial waters or 
on the high seas, is considered a MOOTW. To a large extent, unless specific 
mitigation measures are instituted, the environmental risks and impacts of 
peacetime training are qualitatively much the same as the risks and impacts that 
can be anticipated during war. This begs the question whether different criteria 
should be applied to determine acceptable impacts of military operations on the 
environment during war versus during MOOTW. Perhaps surprisingly, in the 
context of U.S. environmental law, little distinction is made between acceptable 
conduct in war versus MOOTW. 

This paper will focus on the impacts of combat and MOOTW in an attempt to 
resolve three questions. First, what should military commanders and policy makers 
know about the physical environment and the impacts of military operations 
thereon? This paper asserts that, as a minimum, military commanders and policy 
makers must achieve the level of knowledge that is required by legal regimes 
applicable to war and MOOTW. Part I of this paper explores the major knowledge 
requirements imposed on U.S. commanders by domestic law. 

Part II of this paper addresses the question of what do we know about the impacts 
of war and MOOTW on the marine environment. Through a discussion of some 
of the known effects of weaponry, radiation, sound and oil pollution on the marine 
environment, it will be shown that our knowledge in these areas is far from 

In its final Part, this paper will suggest an approach for sound policy-making 
in the face of incomplete knowledge regarding the impacts of war and MOOTW 
on the marine environment. 


Domestic U.S. law imposes significant knowledge requirements on federal 
agencies, including the military, whose actions may affect the marine 
environment. The discussion below focuses on the three major statutes imposing 
these knowledge requirements. 

National Environmental Policy Act 

The National Environmental Policy Act (NEPA) mandates formal 
documentation and full consideration of the environmental impacts of any 
proposal for "major federal actions significantly affecting the quality of the human 
environment." In documenting such impacts, federal agencies must document 

DeMarco & Quinn 89 

and consider an extremely broad universe of effects, including those that are direct, 
indirect, cumulative and connected, whether or not such effects are adverse or 
beneficial to the environment. Recognizing that in some cases adequate scientific 
information may not be readily available, the regulations further require agencies 
to obtain the necessary information (i.e., do the scientific studies) if the costs 
thereof are not "exorbitant." If the costs are exorbitant, or if the means to ascertain 
the information are unknown, then the agency must attempt to evaluate such 
impacts based on theoretical approaches or generally accepted scientific research 

The NEPA statute includes no enforcement provisions. Agency compliance 
with NEPA, however, is subject to judicial review through "citizens' suits" — 
lawsuits brought by private citizens or groups against federal agencies. 
Accordingly, when preparing environmental documentation, federal agencies 
strive mightily and at great expense to include sufficient scientific information to 
survive judicial review. 

Closely related to NEPA is Executive Order 12114, which requires 
environmental impact analysis for certain federal actions significantly affecting 
the environment of the global commons or of foreign nations. Although extremely 
broad in geographic scope, the Order contains numerous exemptions from, and 
qualifications to its requirements, which in effect substantially circumscribe its 
mandate. The Order specifically disavows creation of any right of action, hence 
the threat of potential legal action has not been an inducement for federal agency 
action under the Order. Nevertheless, the Order remains a mandate for collection 
and consideration of information regarding the effects of military activities on the 
marine environment. 

In response to the mandates of NEPA and Executive Order 12114, the Navy 
and Marine Corps have conducted numerous environmental studies, large and 
small, of the effect of military training operations on the marine environment. The 
costs of these studies may range from the low thousands to several million dollars. 

Endangered Species Act 

U.S. species protection statutes impose very significant scientific knowledge 
requirements on federal entities, including military commanders. The 
Endangered Species Act (ESA) prohibits federal agencies, including the military, 
from undertaking any action that would jeopardize the continued existence of 
endangered species, or adversely affect their "critical habitat," meaning that 
geographic habitat area necessary for the recovery of the species from endangered 
status. In order to determine the potential impacts of their activities on endangered 
species and critical habitat, federal agencies must conduct biological assessments of 
their activities. These assessments generally involve both literature search and 
field study. 

90 Protection of the Environment During Armed Conflict 

Biological assessments are then provided to the cognizant wildlife agency, 
which in turn will issue a biological opinion on the probable impacts of the activity 
on endangered species or critical habitat. The biological opinion may indicate that 
the proposed action may have no effect, that it will have no effect provided specified 
mitigation measures are undertaken, or that the action will jeopardize species and 
cannot be mitigated to avoid such impact. A federal action may not proceed in the 
face of a jeopardy opinion, unless relief is granted by the Endangered Species 
Committee, discussed below. 

The ES A's prohibition on "taking" certain species expressly applies to persons 
subject to U.S. jurisdiction "upon the high seas", creating a virtually world-wide 
regulatory regime. The statute requires that information developed for 


consultation be the "best scientific and commercial data available." As mandated 
by the ESA, the Navy has undertaken a number of consultations to ensure that 
operations at sea do not violate statutory requirements. 

Marine Mammal Protection Act 

Like the ESA, the Marine Mammal Protection Act (MMPA) prohibits the 
"take" of any marine mammal on the high seas. Under the Act, "harassment" of a 
marine mammal is a form of "take." MMPA defines "harassment," in part, as 
". . . any act of pursuit, torment or annoyance which . . . has the potential to disturb 
a marine mammal ... in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, feeding or 


sheltering." Given the breadth of this definition, virtually any military action at 
sea, including routine vessel traffic, could result in a "take." In the preamble to a 
draft rule establishing procedures for granting marine mammal harassment 
permits, the National Marine Fisheries Service (NMFS) specifically cited 
generation of marine sound as activity that might require a harassment permit. 
The draft regulations themselves contemplate ship noise as a potential source of 
harassment. The draft regulations require permit applicants to submit scientific 
information such as: the species and numbers of marine mammals likely to be 
found in the vicinity of the activity and, for those likely to be affected, a breakdown 
of such animals by age, sex and reproductive condition; the anticipated impact of 
the activity on the animals and on their food sources and habitat; and a monitoring 


plan to evaluate the actual impact of the activity on marine mammals. NMFS 
must then consider the "best scientific evidence" in determining the probable 
effect of the activity on marine mammals. 

Knowledge Requirements in War v. Military Operations Other Than War 

As discussed above, U.S. statutes impose significant requirements regarding 
the collection and consideration of information relative to military operations in 
the marine environment. A related issue is whether this burden is different in 

DeMarco & Quinn 91 

combat situations than in other scenarios. Common sense suggests, of course, that 
during war U.S. commanders should not be required to prepare environmental 
impact statements for amphibious assaults, nor obtain a permit for whale 
harassment before conducting an attack on enemy shipping. 

In reality, U.S. laws imposing information collection and consideration 
requirements make little distinction in environmental requirements between 
peacetime and wartime requirements. NEPA provides no war or national 
emergency exemption. Implementing regulations provide merely that if 
emergency circumstances make it necessary to take action without observance of 
NEPA requirements, the agency should consult the Council on Environmental 
Quality. 14 

Neither the Marine Mammal Protection Act nor its implementing regulations 
provide a war or national emergency exemption. The U.S. Supreme Court has held 
that the ESA's prohibition against taking endangered species "reveals a conscious 
decision by Congress to give endangered species priority over the 'primary 
missions' of federal agencies." In recent litigation, the United States Coast Guard 
argued that its mission has priority over endangered species. The U.S. District 
Court judge, in response, threatened an adverse judgment in order to "disabuse 
the Coast Guard of its mistaken understanding of the unequivocal message of the 

ESA." 16 

In the landmark case of Tennessee Valley Authority v. Hill, the Supreme Court 

upheld an injunction against completion and operation of a dam costing more than 

$100 million. Shortly after that case was decided, however, Congress created the 

Endangered Species Committee as a safety valve for relief from the draconian 

effects of the ESA. The Committee, consisting of seven Cabinet-level officials, is 

empowered to exempt a federal action from ESA requirements upon finding that 

there are no reasonable and prudent alternatives to the action, and that the benefits 

1 o 

of the action outweigh the benefits of conserving the species. In recognition that 
ESA mandates could adversely impact military operations, the Act provides that 
the Committee must grant an exemption if the Secretary of Defense finds that an 


exemption is necessary in the interests of national defense. Under existing law 
and regulation, however, such exemption could be granted only after considerable 
administrative effort, including preparation of a biological assessment and 
consultation with the cognizant wildlife agency. These efforts could take weeks or 
months. Thus, the availability of the exemption for use in defense related 
emergency circumstances, even during war, is not certain. 

In summary, the information collection and consideration requirements of U.S. 
domestic law are substantial. These responsibilities do not disappear, at least for 
purposes of U.S. domestic law, upon the commencement of hostilities. 

92 Protection of the Environment During Armed Conflict 


Having described some of the requirement for scientific information on this 
subject, this portion of the paper will now discuss the availability of that 

Certain data regarding anticipated effects of combat on the marine environment 
is available. For example, information is available on the expected lethal blast radii 
of various ordnance, the anticipated persistence in seawater of chemical and 
biological weapon agents, and the impact of petroleum in the ocean 


environment. The actual impact of any given military operation on the marine 
environment, of course, would be time and location-specific. Hence, reliance on 
existing scientific data in the making of global policy is problematic. 

Another difficulty encountered relative to scientific data collection in the 
marine environment is the vastness and complexity of the ocean environment 
itself. By way of illustration, below are discussed three case studies in which 
considerable scientific effort has been expended to assess the impacts of three 
different types of potential impacts on the marine environment: radionuclide 
release, oil pollution, and sound propagation. 

Radionuclide Release in the Arctic 

In 1993, the former-Soviet Union released information pertaining to the 
dumping of radioactive waste into the Arctic Seas. A paper known as the Yablokov 
Report or the "White Paper" was published containing data on both source 
locations and the amount and type of solid and liquid waste, high-level waste in 
the form of spent nuclear fuel, unfueled nuclear reactors, and discarded vessels 
containing radioactive waste. 

Subsequently, the U. S. Naval Research Laboratory modeled the dispersion of 
those radioactive contaminants in the Arctic and its marginal seas. Source 
locations and total amounts of disposed radioactive material are based on the 
Yablokov Report. The Navy model investigates only the dispersion of 
contaminants once they have entered the water column. Model coverage extends 
from the pole to approximately 30 degrees North latitude using a grid resolution 
of 0.28 degrees. Several different ten-year model simulations are examined using 
the following source types and locations: 

Low level solid and liquid waste dumped in both the Kara and Barents Seas; 

High level waste, including spent nuclear fuel from reactors dumped along the 
Novaya Zemlya coast in the Kara Sea; and 

DeMarco & Quinn 93 

Rivers emptying into the Kara and Barents Seas; and waste dumped from the nuclear 
power plant at Sellafield in the Irish Sea. 

Comparisons of the model's results to recent data indicate that both the river 
and the Sellafield sources can account for a majority of the radioactivity recently 
observed in the Kara Sea. However, when high level radioactive waste is used as 
the source in the model, resulting concentrations of radioactivity are predicted 
approximately an order of magnitude higher than those actually observed. In 
contrast to the predicted impact, these results imply that sources of high level waste 


are not leaking significantly into the water column. Were policy development 
based only on the initial effects and the predicted impact, inaccurate limits may 
be established. 

In addition, other sources of radioactive waste from Russia have led to development 
of international policy. In 1993, 237,000 gallons of low-level radioactive waste were 
dumped by Russia into the Sea of Japan. An international meeting of 37 countries led 
to a prohibition on the dumping of radioactive waste at sea, with a scientific review 
and reassessment to be performed after 25 years. This prohibition was adopted 
notwithstanding environmental monitoring indicating no observable adverse 
effects as a result of the Russian dumping. 

Gulf War Oil Pollution 

The Gulf War oil pollution episode is an example of how even the best scientific 
methods may not provide accurate predictions of future ecological effects. Studies 
of the Gulf War demonstrate that the effects on the environment were not as severe 
as first anticipated. Numerous studies were also done on the effects of the war from 
both a socio-economic perspective and an ecosystem management perspective, 
taking into account the diverse political regimes in the Gulf that would have to 
cooperate to effectively manage the region as an ecosystem. 

During the Gulf War, a total of 660 million barrels of crude oil were released 
into the atmosphere, onto the desert, and into the water. Of the 660 million, 6 
million to 1 1 million barrels of crude oil were intentionally released into the 
marine environment by the Iraqi troops, contributing to the world's largest oil 


spill to date. The focus of scientific study in the Gulf region has been on the oil 
slick caused by the intentional release, particularly because of the amount of oil 
that impacted the shoreline and the predictions of the long term impacts of a spill 
of such magnitude. 

Concern for the environment was a part of the wartime operations, with 
mitigation of the slick commencing before fighting ceased. Originally, the slick 
was predicted to behave like the Norwruz spill of 1983 which exhibited massive 
sinking due to strong shamal winds blowing dust onto the oil, causing it to 
flocculate and sink. Since its specific gravity is less than 1.0 (the specific gravity 
of water), oil cannot physically sink unless it is mixed with sediments or particles 

94 Protection of the Environment During Armed Conflict 

to make it heavier than water. Fortunately, the Gulf War oil spill did not sink due 
to uncharacteristic wind conditions which transported and contained the 
unrecovered oil against the eastern shorelines of Kuwait and Saudi Arabia. Also, 
the percentage of floating oil recovered by mechanical means was between 18-37 
percent, greater than what is usually possible with mechanical cleanup 
(approximately 10 percent), thanks to an unprecedented international-scale effort 
in recovery operations. The spilled oil also had a high evaporation rate, estimated 
from 40-50 percent. The remaining amount was stranded on shorelines and in 
intertidal zones. Much of this was left to recover naturally, thus providing an 

opportunity to study the physical processes of weathering and effects of natural 


One year after the spill, the Gulf area provided a unique learning opportunity for 
the scientific community as a whole, leading to the largest cooperative scientific 
endeavor in the Gulf region. Known as the "Mt. Mitchell Expedition", a 100-day 
multi-disciplinary oceanographic research investigation was organized to form a 
comprehensive understanding of the Gulf region and to study the long term effects 
and impacts of the oil spill. The expedition was jointly sponsored by the Regional 
Organization for the Protection of the Marine Environment (ROPME), United 
Nations Environmental Programme (UNEP), U.S. National Oceanic and 
Atmospheric Administration (NOAA), and Marine Spill Response Corporation 
(MSRC) with the participation of 140 marine scientists from 15 countries. Lasting 
from 15 January to 13 July 1992, the expedition facilitated much of the data 
collection and synthesis that has been done on the fate and effects of the spill. It 
provided a consolidation point and information management system for 
science-related studies in the Gulf region and has led to a better understanding of 
the effects of the war on the marine environment. The expedition's success was 
measured not only by the wealth of scientific data collected, but also in "the strides 
made in local, regional, and international environmental awareness and political 
cooperation in the Gulf." 

The oil was expected to cause gross contamination to the subtidal biological 
communities of the Gulf. However, the oil did not behave in the hypothesized 
manner. This was largely due to the rapid oil movement and stranding in the 
intertidal zone which kept the oil from sinking, and acclimation of the Gulf marine 
ecosystem to high petroleum impacts. In the Gulf area, microbial populations have 
been regularly exposed to natural seepages of oil that occur in the region. Rapid 
oil degradation and transformation rates exist due to the extreme high 

temperatures in the region. Significant photo-oxidation of polyaromatic 

petroleum compounds also occurs due to the strong solar radiation intensity. 

Overall, studies confirmed that there was very little "sinking" of the oil as 

originally predicted. Through subtidal sampling conducted during the Mt. 

Mitchell Expedition it was documented that little contamination exists in subtidal 

DeMarco & Quinn 95 

areas above background levels, relative to the intertidal areas. This leg of the 
expedition showed: 1) no evidence of large scale sinking as a result of the spill; 2) 
high levels of contamination in muddy, sheltered basins with low wave energy; 
and 3) oil initially stranded in the intertidal zone did not appear to accumulate in 
the subtidal, near shore regions, as might have been expected. Often it was difficult 
to differentiate whether the source of contamination that was measurable in the 
subtidal regions was from the Gulf War spill (intentional release), oil from sunken 


vessels, or oil residue from previous spills. 

In reviewing the compilation of data and analyses of scientific studies on the 
effects of the Gulf War on the environment, it was found that interpretations of 
the overall "impact" are varied. But taken as a whole, we cannot say definitively 
either way that there was a catastrophic "effect," or any effect at all. The answer 
lies somewhere in between and is dependent upon the particular parameter being 
measured and the assumptions being made. One must be careful in trying to make 
an overarching statement in the extremes, particularly when trying to determine 
the effects of something as complex as the Gulf War. Some of the long term effects 
are not fully known; more time is needed to determine if the Gulf ecosystem will 
recover to its pre-war state. Most experts speculate that it will not return to its 
original state, although complete data on the initial conditions of the Gulf 
ecosystem is also limited. The NO A A chief scientist explained the Gulf situation 
best in stating that "the Gulf (environment) has changed because of the 1991 


conflict; how dramatically it has changed still remains to be seen." 

Sound Propagation in the Marine Environment: The Acoustic 
Thermometry of Ocean Climate (ATOC) Project 

In many cases, the Department of Defense (DOD) and Navy are leading 
research to determine the environmental effect of military operations. The 
Congress established the Strategic Environmental Research and Development 
Program (SERDP) on November 5, 1990 through Public Law 101-510 to address 
environmental matters of concern to the DOD and Department of Environment 
(DOE). It is conducted as a tri-agency program with participation from the DOD, 
DOE, and the Environmental Protection Agency. The SERDP identifies and 
develops technology to enhance capabilities to meet environmental 
commitments, and fosters the exchange of scientific information and 
technologies among governmental agencies and the private sector. Funding for 
the SERDP has stabilized at about $50M per year for Fiscal Years 1995 and 1996. 

Under the aegis of the SERDP, there are several programs directly addressing 
concerns articulated at this Symposium. Over $50M of SERDP funds are 

encumbered by the Acoustic Thermometry of Ocean Climate (ATOC) project. 

By sending pulses of underwater sound through the deep ocean basins, scientists 

hope to settle the question of whether the predicted "greenhouse effect" has begun 

96 Protection of the Environment During Armed Conflict 

to warm the planet. This experiment exploits the fact that the speed of sound in 
water depends on the water's temperature; the warmer the water, the faster sound 
propagates through it. Any significant change in the speed at which sound 
traverses several thousand miles of seawater would mean a change in the average 
temperature of the water through which the sound passed. By careful 
measurements repeated over a decade or so, it can be demonstrated that seasonal 
and annual trends are dampened and average global and/or basin scale ocean 
temperature changes could be resolved with sufficient accuracy to validate or 
discount greenhouse effect estimates. The generally accepted estimate of 
greenhouse warming at the ocean-atmosphere boundary is 20 millidegrees Celsius 
per year, decreasing exponentially to 5 millidegrees per year at the depth of the 
Deep Sound Channel. The ATOC experiment has the potential to demonstrate 
that a single quantitative global warming signal of 4-5 millidegrees per year at 1 
kilometer ocean depth (average Deep Sound Channel depth) could be confirmed 


at the 95% statistical confidence level in a ten-year observation period. 
Concurrently, a detailed picture of ocean thermal patterns can be deduced which 
has a direct bearing on the effectiveness of naval systems. 

A strong marine biology program is tightly coupled to the ATOC research 
effort. Although permits from the National Marine Fisheries Service (NMFS) 
were in process, project execution was delayed in 1994 when protests from the 
Sierra Club Legal Defense Fund and the Natural Resources Defense Council 
forced the NMFS to reconsider and require full Environmental Impact Statements 
(EIS). Opinions regarding the effects of the experiment greatly varied. Hal 
Whitehead, a whale researcher at Dalhousie University in Nova Scotia, stated that 
"the effects of the sounds on marine mammals could range from deafening, 

through hearing loss, to disturbances in feeding or socializing, to long-term 

psychological effects."" Most scientists are convinced that there is no evidence 

that even extremely loud low-frequency noises emitted by supertanker propellers 

or the underwater blasts from offshore oil explorers and drilling platforms cause 

damage to marine mammals. The animals may be "annoyed" by the sounds, but 

they are certainly not endangered. Further, a report from the Ocean Studies Board 

of the National Academy of Sciences states that although there is an absence of 

hard data, "it appears that low-frequency sound, even at high levels, is barely 


audible to them." As a calibration point, ATOC proposed transmitting a 260 
watt, 60 to 90 Hertz pulsed signal 2% of the time - 20 minutes on, 4 hours off, every 

fourth day at a depth of 1000 meters. This noise signal is about one-tenth as 

powerful as the sound emitted by a typical supertanker. 

After nearly two years of discussion, the Marine Mammal Protection Act permit 

for an ATOC source in California was granted in the Spring of 1995. A permit for 

the Hawaii source remains in process. This situation is a typical example of policy 

and regulation that has proceeded without sufficient or reasonable knowledge of 

DeMarco & Quinn 97 

actual effects. These regulatory events result in decreased National Security 
capabilities at increasing cost, without significantly improving the basis to 
construct a reasonable and workable policy. 

The previous case studies illustrate the importance of a complete knowledge 
base in forming a complete assessment of the environmental threat of any type of 
marine operation. This knowledge base should consist of known initial 
environmental conditions, short and long term effects, and the actual impacts. 
After evaluating the case studies, an evaluation of the knowledge base concerning 
the environmental threat of military operations can be performed. This knowledge 
base is in fact very thin and, with few exceptions, contains a great deal of 
uncertainty. Thus, it is not surprising that very little capability exists to make 
adequate impact assessments except where there is a similar activity in the civilian 
or commercial sectors. For the most part, military research has focused upon the 
military effectiveness of weapons systems, rather than on the environmental effects 


As the above discussion indicates, collection and analysis of data regarding the 
impacts of combat on the marine environment is a massive and complex 
undertaking. Even with concerted study efforts over time, it remains difficult to 
predict with a great deal of certainty the long term impacts of combat on the marine 
environment. Because decisions regarding military impacts on the marine 
environment will necessarily be made, by default if not through deliberate process, 
some means of dealing with this scientific uncertainty is required. 

What are the ramifications of this scientific uncertainty on military commanders 
and policy makers? From a domestic law standpoint, the limited knowledge base 
creates a risk of being challenged for noncompliance with domestic requirements, 
with the ever-present possibility of disruptive enforcement action. From an 
international standpoint, the limited knowledge base creates other risks. With the 
benefit of historical hindsight, our activities at sea will be judged in light of actual long 
term impacts, whether adequately anticipated by the scientific community or not. It 
is the unavoidable burden of the policy maker to assume the risk of scientific 
uncertainty when striking the appropriate balance between unrestricted military 
operations and environmental protection. 


*Dr. DeMarco is Director of Environmental Programs, Office of Naval Research. Commander Quinn is a Judge 
Advocate in the U.S. Navy. 

1. 42 U.S.C. §4332(2)(C) (1970). 

2. 40 C.F.R. §1508.5(1978). 

98 Protection of the Environment During Armed Conflict 

3. 40 C.F.R §1502.22 (1986). 

4. Id. 

5. Executive Order No. 12114,3 C.F.R 356(1979). 

6. 16 U.S.C. §1536(0(1973). 

7. 16 U.S.C. §1538(1973). 

8. 16 U.S.C. §1533(bXlXA) (1975). 

9. 16 U.S.C. 1362(18) (1992). 

10. 60 Fed. Reg. 28, 381 (1995). 

1 1 . Draft 50 C.F.R. §228.4<aX5), at 60 Fed. Reg. 28, 384 (1995). 

12. Id. 

13. Id. 

14. 40 C.F.R. § 1 506. 1 1 . During Operation Desert Storm, the Department of Defense did in fact consult with the 
Council on Environmental Quality regarding pursuit of various emergent military requirements in the United States 
without full NEPA compliance. 

15. Tennessee Valley Authority v. Hill, 437 U.S. 153 at 185 (1978). 

16. Strahan v. Linnon, Civil Action No. 94-11 128-DPW, U.S. District Court, District of Massachusetts May 2, 

17. Supra n. 15. 

18. 16 U.S.C. §1536(h) (1973). 

19. 16 U.S.C. §1536(j) (1973). 

20. See Warfare in a Fragile World, Stockholm International Peace Research Institute, 1980, at 144-177; Westing, 
Environmental Hazards of War, International Peace Research Institute, Oslo Norway, 1990. 

2 1 . Preller, An Overview of the NRL Large Scale Modeling Effort Studying the Dispersion of Radioactive Contaminants 
in the Arctic, Proceedings of the Office of Naval Research/Naval Research Laboratory (ONR/NRL) Workshop on 
Modeling the Dispersion of Nuclear Contaminants in the Arctic Seas, Oct. 18-19, Monterey, CA. 

22. Literathy. Considerations for the Assessment of Environmental Consequences of the 1991 Gulf War, 27 Marine Poll. 
Bull. 349-356(1993). 

23. Michel, Hayes, Kennan, Jensen & Narumalani, Oil in Nearshore Subtidal Sediments of Saudi Arabia from the Gulf 
War Spill,. 1993 International Oil Spill Conference Proceedings, Tampa, FL, at 383-388. 

24. Clark & Symons, Mt. Mitchell Oceanographic Expedition in the Gulf, 127 Marine Poll. Bull. 31-34 (1993). 

25. Liternathy, supra n. 22. 

26. Michel, et al., supra n. 23. 

27. Hayes, Michel, Montello, Aurand, Sauer, Ahmed & Abdul. Distribution and Weathering of Oil from the 
Iraq-Kuwait Conflict Oil Spill within Intertidal Habitats -Two Years Later, 199S International Oil Spill Conference 
Proceedings, Long Beach, CA, 1995, at 443-451. 

28. Michel, supra n. 26. 

29. The Strategic Environmental Research and Development Program (SERDP), 1994 Annual Report and Five 
Year Strategic Investment Plan, 1994. 

30. Munk,er al., J. Acoustic Soc. America 96 (October 1994). 

31. Sound-wave Project Pits Scientist v. Scientist, The Washington Times, Mar. 27 1994, at E-6. 

32. Low Frequency Sound and Marine Mammals -Current Knowledge and Research Needs, National Research Council, 
National Academy Press, (1994). 

33. Kumagai, Physics Today, Sept. 1994. 

Chapter IX 

This Land Is Our Land: 
The Environmental Threat of Army 


Colonel Frank R. Finch, U.S. Army* 

Executive Summary 

War by its very nature is destructive to the environment. Sometimes 
environmental damage is intentional, sometimes it is collateral. Some 
environmental damage might be necessary in the sense it is unavoidable. The effects 
can be seen now and throughout history. The effects are associated not only with the 
actual combat, but also with pre- and post- combat operations. The acute effects we 
can see on CNN, but the chronic threats to our environment are often elusive. The 
acute effects can be exacerbated if the source of the threat is not clearly understood. 
The chronic effects are difficult to determine because the source -pathway - receptor 
process that actually results in damage is complex and plagued with uncertainties. 

The source - pathway - receptor model gives an analytical tool that helps us apply 
science to understand the threat military actions pose to the environment. The 
sources of the environmental hazards from combat operations are many: the 
chemical, biological, nuclear and explosive weapons, the damaged factories and 
war fighting infrastructure of the enemy, the collateral damage to the civilian 
infrastructure, destruction of habitat, and the targeting of historical or cultural 
treasures. Today, the most significant environmental threat is unexploded 
ordnance that threatens indiscriminately and persists long after conflict ceases. 
Our technology gives us the ability to better remediate and mitigate environmental 
threats, but there is still much we do not understand. 

Many of the environmental threats of military operations go beyond the 
physical science of the source - pathway -receptor model. The development of an 
environmental ethic is an evolutionary process. The environmental stewardship 
ethic our Army has recently professed may not be shared by all. Although we may 
have the technology, financial resources, legal framework and awareness to 
minimize the environmental threats of our weapons, many countries possess the 
capability to use weapons of mass destruction or low technology weapons without 
these controls. Environmental terrorism can find a variety of sources and 
interesting pathways to threaten a wide variety of receptors. 

1 00 Protection of the Environment During Armed Conflict 

Military operations other than war (MOOTW) will require environmental 
stewardship and an understanding of the complex relationship people have with 
their environment. While we help nations for humanitarian reasons, we also need 
to provide them with affordable land management practices that can sustain their 
population and reduce adverse environmental impacts. 

In this battle between Athens and the Theban confederacy, the genius of Greece 
found a new outlet: slaughter without ethical restraint. 

In the battle of Delium, 424 B.C., the Athenians were at war with the Theban 
Confederacy. It was a custom at that time not to damage sacred areas, such as the 
waters at the Delium temple. In this operation, the normal customs gave way to 
more brutal military operations. The Athenians fouled the temple waters and also 
destroyed local vineyards and agricultural fields for a short-term military 

In the 2nd Century B.C., the Romans spread salt on the fields of Carthage to 
destroy crops and poison the soil. Sherman's march to the sea during the Civil 
War destroyed Confederate agricultural and industrial resources, impacting the 
South's ability to wage war by terrorizing the South into surrender . During those 
earlier times, there were fewer hazardous chemicals being manufactured and fewer 
industries that generated hazardous substances. 

During WW II, the Soviets used scorched earth tactics on their own territory 
to deny Germany the resources it needed to continue its offensive. Rebuilding the 
industrial base would take longer and cleaning up contamination in those areas of 
Russia is, in many cases, just beginning. 

In the Vietnam War, modern herbicides were used to destroy vegetation to deny 
the enemy concealment. The long-term effects of these herbicides are still unclear. 
Additionally, mass bombing of vegetated areas with napalm, forest fires, and bomb 
craters also threatened the habitat over large areas of Vietnam. In the 1980s, the 
Soviets destroyed crops and fields in Afghanistan to deny food to the Mujahadeen 
rebels. During Operation Desert Storm, the Iraqis looted agricultural resources, 
destroyed irrigation capabilities, and destroyed oil processing facilities. Again, 
some of these effects will take years to remediate. 

The threat to the environment posed by warfare has increased throughout 
history as nations have developed more sophisticated means to destroy vegetation 
and otherwise degrade the land in order to deny its use by enemies. The chemicals 
used are more efficient, last longer, and have a greater potential to harm the land 
and its people than those used at any time in the past. 

War, or more generally combat operations, has as its goal inflicting great harm 
on the enemy. Coincidentally, it damages the immediate environment and can 
produce collateral damage over extensive space and time. As seen by the 
introductory historical examples, the environmental damages can have adverse 

Finch 101 

side effects. An equally important factor to consider, beyond the magnitude of the 
acute damage produced, is the chronic threat or longevity of the impact. 

Modern combat with nuclear weapons, persistent toxic chemicals, long-lived 
contaminates such as dioxins, and unexploded ordnance can have impacts over 
generations. Many of us have seen the "sick humor" characterization of the lone 
soldier standing in the midst of Armageddon declaring, "We won." As this paper 
will show, we have reached the point in our war fighting capability where we must 
consider the consequences as we develop and use these sophisticated weapons. We 
must also be very cognizant of the abilities of our enemies, because, as was proven 
at Delium, not everyone follows the rules. 

It may appear that examining the science of how war impacts the environment 
is making a simple subject hard, but there are underlying and controlling 
principles that can demonstrate that the problem goes well beyond initial death 
and destruction. The best manner to examine this problem is to follow the 
chronology of combat. We can group the effects into those that result from 
preparing for war, the damage done during combat, the acute hazards left after 
combat, and finally the chronic hazardous residuals from all of the previous 
actions. In this form, we can more accurately compile and then sum the effects of 
combat to better understand its full impact. 

The largest body of scientific analysis in the area of assessing hazards and 
defining risks comes from risk assessment of hazardous waste disposal operations. 
Here, the general model to determine the hazard of any action is to analyze the 
entire process by developing a source - pathway - receptor model. 

A simple military example can best describe this model — chemical nerve 
agents. Chemical nerve agents are among the most toxic chemicals to humans. 
Brief exposure to a small quantity of agent can be fatal, absent proper medical 
assistance. Most agents work by either inhalation or absorption through the skin. 
The agents are delivered either by explosive munitions or through aerial spraying 
The agent is the source; air transport of the agent, soil dermal contact, inhalation 
or ingestion are pathways, and the soldier is the receptor. 

A source is any physical, chemical, or biological agent that is capable of 
producing a specific harm or danger. 

Explosives, projectiles, chemical weapons, biological agents, and nuclear 
weapons are obvious sources. There is a much longer and less obvious list of hazard 
sources, primarily chemicals, that are also essential in combat. They include: 
petroleum products, chemicals for biological and chemical decontamination, 
infectious wastes from medical facilities, spent batteries, pesticides, etc. The list 
is almost endless. Contaminant sources may also be an indirect result of military 
operations, such as waste water treatment facilities that discharge untreated 
domestic waste into water sources after being accidentally damaged by an artillery 
shell. The contaminant may be a direct result of military operations. This category 

102 Protection of the Environment During Armed Conflict 

might include chemical weapons or destroyed war fighting materiel factories that 
result in contamination through spills of hazardous industrial material. 

Each hazard source must be analyzed to determine its hazard potential, both 
acute and chronic, its persistence when released to the environment, usually 
referred to as fate, and its transport properties which define where and how it moves 
once released. Again, borrowing from the hazardous waste management process, 
we can classify hazards as corrosive, ignitable, reactive (explosive), toxic, and 
infectious. Most of these terms are self-explanatory. 

Toxic substances are a complex group which has many subcategories. The first 
subgrouping of toxins is acute -those that can have an immediate impact on health; 
and second, chronic - those that require some period of time to produce an adverse 
affect. Another way to subdivide the broad classification of toxicity is by end point. 
Carcinogenic substances produce tumors, non-carcinogenics attack other organs and 
systems (Agent GB is a neurotoxin), and genotoxic substances can cause cells to 
mutate. Further, there are several classifications for substances which may produce 
birth or developmental effects. 

Nations see and feel the immediate or acute effects of war and its hazards; 
however, it is fear and worry about the chronic effects such as seen with Agent 
Orange, nuclear exposure, or the unknown, such as the uncertainty associated with 
illnesses from the Persian Gulf, that can last decades. People fear and worry because 
there are no absolutes on cause/effect and uncertainties remain even when our 
conclusions are based on the best statistics. Effects on the ecosystem are equally 

We know that most agents — chemical, biological, or radiological — cause 
damage according to a dose/response equation — the amount of substance 
experienced per time of exposure. It is clear that a large dose of a substance over a 
short duration will cause harm, but less clear is that smaller doses for longer periods 
can also eventually produce damage. 

For example, small doses of radiation over long periods are not seen as harmful. 
This is why there are allowable doses for x-ray technicians. There are also even 
larger allowable doses for patients receiving medical diagnostic x-rays because 
these exposures are less frequent. However, one time exposure to large doses, or 
long exposures to lower dosages, can and do cause harm. Even though the principle 
of the dose/response is completely accepted scientifically, the dose/response curve 
for chronic exposures is the least certain aspect of the very inexact science of risk 

A pathway is necessary to transport a hazard from the source to a receptor. The 
pathway part of the model is the easiest to misunderstand or omit from 
consideration. The pathway will depend on the environmental conditions and the 
properties of the agent. Its importance can be well illustrated with our chemical 
agent example. Troops can sustain the fight in a chemical environment not because 

Finch 103 

of the source or the receptor, but because protective equipment interrupts the route 
of exposure (i.e., inhalation, dermal contact). Our Mission Oriented Protective 
Posture (MOPP) gear protects a vulnerable receptor (the soldier) from an 
inhalation or percutaneous (through the skin) exposure to the agent, thus reducing 
the risk though the source remains an extreme hazard. Likewise, a non-mobile 
agent located in an area without receptors will not produce a risk because it lacks 
a mobile pathway. 

Most agents are able to transport or move based on their inherent chemical and 
physical properties. The physical state of the substance can be classified as solid, 
liquid, or gas. Gases will disperse as dictated by the meteorological conditions and 
other properties like vapor pressure, diluting as they mix. 

Liquids are the most common and the most difficult to analyze for fate and 
transport properties. Liquids at standard temperatures and pressures possess 
inherent properties of volatility and water solubility. These properties give liquids 
the opportunity to move through the environment. Henry's Law predicts the 
amount and rate of volatilization for chemicals. Highly volatile liquids are those 
that will rapidly transform to a gas at ambient temperatures, creating an air hazard. 
Unfortunately, the most volatile can also be the most toxic. Liquids exposed to or 
mixing with water will tend to flow with and/or dissolve into the water based on 
the solubility product of the substance. Toxic substances that are reasonably 
soluble can be transported by water and create hazardous surface water and 
groundwater plumes. This situation abets the transport of the contaminated water 
which then becomes the pathway for exposure. Liquids also partition into the soil 
through a series of chemical and adsorption reactions. There are considerable 
published data on partition coefficients which can help predict the fate of 
chemicals released to the soil. However, these data are very incomplete in 
comparison to the number of chemicals available today. A final fate for a liquid is 
through uptake into the biota of the environment. Here, it can be bioaccumulated 
(concentrated) until it becomes toxic to the environment or a pathway to another 
host becomes available. The biological response to chemicals is a difficult 
toxicological factor to quantify. 

A solid may transport by air if the particles are small, can dissolve into water 
based on its solubility, or may react chemically or biologically in the soil. The most 
significant hazard from solids is the inhalation hazard from particulate forms of 
hazardous materials. In combat operations these exposures are generally short 
lived, and therefore will tend to be acute. Depending on the persistence of the solid 
particles and where they settle, there is a potential for chronic risk. 

One important physical/chemical property of risk agents is their environmental 
persistence. Chemical, biological, and radiological agents may transform when 
released to the environment. These processes can be chemical reactions, physical 
degradation, or biologically driven reactions. The products of these reactions may 

104 Protection of the Environment During Armed Conflict 

be more or less hazardous than the original agents. The persistence of an agent 
determines how long the agent will be hazardous to a receptor. This time is a 
function of the agent's decay properties and of the concentration that the agent 
stops being hazardous to the receptor. 

There are numerous mechanisms that influence the decay or change of an agent 
in the environment. A few of the most common reactions are discussed in this 
paragraph. Hydrolysis is a reaction with water or water vapor which yields a 
different chemical. Photolysis reactions in air are those powered by sunlight which 
transform vapors and aerosols. Biological agents will either grow, die, or mutate 
based on the environmental conditions they encounter. Chemicals in the water 
and the soil are susceptible, under the proper conditions, to degradation, 
transformation, or bioaccumulation. For example, bioaccumulation of PCBs in 
fish that live in contaminated streams represents a hazard to organisms that eat 
the fish. Inorganic mercury in river sediments can be transformed by biological 
reactions from this immobile form into the soluble and extremely toxic methyl 
mercury form. 

The acute impacts on people, the environment and other receptors from the 
active phases of combat can be immediately evident. The hidden impacts, 
particularly the lasting damage and persistent hazards, are just as real, but much 
more difficult to assess and quantify. 

A receptor is any susceptible target that can be damaged by the agent. It may 
be man, but can also be the ecosystem of an area, or a species that is endangered 
by actions, such as the destruction of habitat. After the contaminant reaches the 
receptor, the contaminant may be ingested, inhaled, or come in direct dermal 
contact with the receptor. These methods of entry into the body are termed routes 
of exposure. The amount of contamination that reaches the receptor through each 
of these exposure routes, and the rate at which it is absorbed, are determined by 
many factors, as is the effect of various levels of accumulation. 

It is important to characterize the conditions under which the receptors may 
be exposed. Physical characteristics of the receptor, such as body weight, lung 
capacity, and skin surface area, influence the amount of contaminant which 
actually enters the body. Inhalation rate, water uptake rate, and duration of 
exposure are three equally important variables. 

Table 1 presents examples of application of the hazard model to the phases of 
military operations: pre-mobilization/mobilization, military operations, and 
post-conflict operations. It would be interesting to attempt to construct a more 
complete table, but that would require excessive time and research. 

In the pre-mobilization/mobilization phase, explosives must be manufactured 
and assembled into bombs, mortars, grenades, etc. Manufacturing represents an 
acute and a chronic risk to workers. Workers continue to be injured in these 
operations. Further, the waste products of these processes represent acute and 

Finch 105 









physical damage 

soil, water, air 

training lands 
and flora/fauna 


spills during 








soil, water, air 

training lands, 
humans, flora, 










air, water, soil 

population in 
the vicinity, 
flora, fauna 


releases of 
materials used 
in industrial 




air, water, soil 

population in 
the vicinity, 
flora, fauna 






civilians, flora, 
fauna, land 

medical wastes 




water, air, soil 

civilians, flora, 
fauna, land 

waste spills 


water, air, soil 

civilians, flora, 
fauna, land 

chemical decon 


water, air, soil 

civilians, flora, 

NBC weapons 




air, water, soil 

civilians, flora, 
fauna, land 

war damage to 
facilities that 
military items 




air, water, soil 

civilians, flora, 
fauna, land 






civilians, land 
flora, fauna, 


disposal of 
leaking weapons 




air, water, soil 

civilians, flora, 
fauna, land 

TABLE 1 - The Environmental Threat of Military Operations 

1 06 Protection of the Environment During Armed Conflict 

chronic risks to people and the environment. We can mitigate these risks with 
engineering, but the mitigation is costly. The bottom line is that the more bullets 
you need, the larger the production capacity and the greater the potential for 
contamination. The long-term environmental effects of previous contamination 
are very complex and costly to mitigate. 

The Office of Technology Assessment, U.S. Congress, had this to say about the 
weaknesses in the nuclear weapons production systems that lead to contamination: 

Many factors have contributed to the current waste and contamination problems at 
the nuclear weapons sites: the nature of manufacturing processes, which are 
inherently waste producing; long history of emphasizing the urgency of weapons 
production in the interest of national security to the neglect of environmental 
contamination; a lack of knowledge about, or attention to, the consequences of 
environmental contamination; and an enterprise that has operated in secrecy for 
decades, without any independent oversight or meaningful public scrutiny. 

In military operations, explosives represent a physical risk to our enemies, the 
civilian population, and to our own troops through friendly fire and accidents. 
Our explosives can also cause secondary adverse environmental effects by 
improper weapons storage practices that release hazardous materials. 

The effects of explosives are not only immediate, but can last into the 
post-conflict phase. Explosives represent a continuing acute hazard after conflict 
in the form of unexploded ordnance. Mines are the most obvious and 
well-publicized problem in the area. Cahill estimates that as many as 100,000,000 
mines have been emplaced in over 60 countries. The continuing death and 


destruction they are causing is well documented. A second part of this problem 
is the bombs, rockets, artillery shells, etc., that did not explode and are now lost 
in the environment. Even today, European governments continue to identify and 
remove these types of ordnance from World Wars I and II battlefields. Fort 
Monroe, one of the older Army posts, still has unexploded ordnance from our Civil 
War that periodically are uncovered and have to be removed and properly disposed 
of as hazardous waste. 

Table 1 shows a chronic hazard for explosives and unexploded ordnance. This 
risk comes from the release of hazardous substances from buried munitions as 
aging containers decay and leak. These released chemicals can dissolve into the 
groundwater where they can be transported to receptors who use this water for 

The effects of Agent Orange during Vietnam show the far reaching 
environmental threats of military operations. During the military operation 

At least 4.5 million acres of countryside, including 470,000 acres of farmland, were 
decimated by the 42 million kilograms (46,200 tons) of herbicides sprayed from 

Finch 107 

planes, trucks, and boats between 1962 and 1970. About 5 percent of the country's 
hardwood forest and 744 square miles of mangrove forests were destroyed. 

The long term health risk for our soldiers, legal battles over liability, and 
resources diverted from other defense programs, are some of the post-conflict 
operations phase effects. The economic effects are still being felt. A recent article 
in the Environmental Reporter discusses a 100 million dollar cleanup bill from one 
of the factories that produced this herbicide. In addition to the health problems 
and legal liability issues, there is still the problem of the destruction of the forests 
and the ability of the land to recover. 

The effect of 2,3,7,8 tetrachlorodibenzo-p-dioxin (TCDD), the harmful 
component of Agent Orange, is dependent on numerous factors discussed 
previously. Its persistence measured in half-life (the time it takes for half the 
quantity of the component to decay) is from two hours for leaves and foliage to 

ten years for soil. Its toxicity, as previously mentioned, is extreme, with an LD50 

(the dosage required to kill 50 percent of the test group) as low as 0.02 milligrams 

per kilogram. After the Gulf War, Audubon magazine asked four different authors 

to write a series of essays on "War and the Environment." One of the authors, Mr. 

James M. Fallows, discussed a trip to Vietnam. The time is not mentioned, but it 

appears to be in the late 1980s. He observed: 

Along Vietnam's central coast, in Da Nang and Nha Trang, I have seen a surprisingly 
large number of children whose limbs are missing or malformed. They are far too 
young to have been wounded in combat and because there are so many of them, it is 
hard not to think, as the Vietnam Government contends, that Agent Orange is to 
blame. 13 

He did not observe the acute effects of defoliation, but he did observe the 
chronic effects. Depending on original concentration levels and because of the 
chemical nature of TCDD, health problems in children years after Agent Orange 
was used could result. 

Targeting of certain large facilities that support a nation's warflghting 
capabilities can have tremendous short-term effects and uncertain long-term 
effects on the environment. An example of such destruction is the RAF bombing 
of the Mohne Dam on 16 May 1943. Initial planning did not necessarily look at 
the environmental damage, but focused on the probable damage to the industrial 
base and the ability of Hitler to wage war. 

It is impossible to state the raid's exact effect on the German economy. Local German 
sources for the Mohne episode indicated that 1,294 people were dead or missing 
(including 573 foreigners, mostly Ukrainian women workers) and that 1,000 houses 
had been destroyed or damaged. Among other results, 1 1 factories had been destroyed 
and 114 damaged, 2,822 hectares (6,973 acres) of farmland damaged, 6,316 cattle and 

1 08 Protection of the Environment During Armed Conflict 

pigs killed, 25 road bridges destroyed and 10 damaged, and various power stations, 
pumping stations, water and gas facilities put out of action. 

Although the Germans claimed minimal damage, some 20,000 personnel from 
the labor corps working on the West Wall were diverted to repairing damage done 
by the breaching of the Mohne Dam. It is easy to see why the dam was targeted 
and the definite military advantages that accrued to the Allies. The acute effect 
was significant. However, the long-term environmental effect is unknown. The 
damage to the environment was not analyzed at the time, and is difficult to assess 
retrospectively. It is unknown what types of factories were destroyed and what 
hazardous materials entered the Ruhr River. From the science presented above, 
we know some would hydrolyze, others would settle out, still others would 
bioaccumulate in organisms or biologically degrade. 

We can leverage technology to limit the threat of military operations to the 
environment. Toffler and Toffler note that today, one Fl 17 aircraft, flying a single 
sortie and dropping one bomb, can accomplish what it took B-17 Bombers flying 
4,500 sorties and dropping 9,000 bombs to do during WWII, or 95 sorties and 190 
bombs during Vietnam. "In 1881, for example, the British fired 3,000 shells at 
Egyptian forts near Alexandria. Only ten hit their target." During Operation 
Desert Storm, although the technology was present for the use of precision 

bombing, 93% of the bombs, representing 85,000 tons of TNT, were gravity type 

with 70% missing the target. The fact that technology can provide more precise 

weapons does not mean that the technology will be used in all cases. However, it 

provides an additional option to the commander. With careful targeting and 

precision delivery, it is possible to limit some environmental damage without 

jeopardizing the success of the military operation. 

The oil spills and deliberate destruction of the oil facilities in Kuwait is the 

most notable example of environmental damages from war in recent history. Most 

early coverage included dire predictions on the magnitude and duration of the 

impacts of this "environmental terrorism," as it was characterized by world 

opinion. Numerous articles covered the potential threat soon after the war. The 

attention dropped off quickly, however, as the oil fires were extinguished. It is 

interesting to compare the projections with later, more confirmed data. For 


example, the original estimate to stop the oil fires in Kuwait was 2-5 years. 
Innovative technology developed in response to this problem was able to reduce 


this time to less than nine months. 

The original predictions of the impact of the smoke suggested large regional 
and even global damage. However, a final analysis found that meteorological 
conditions limited the impacts to the immediate region and fortunately also 


limited the ground concentrations to levels well below acute standards . The 
shortened duration of the event greatly reduced the chronic risk to troops and the 

Finch 109 

local population. This is not to downplay the adverse effects that did occur, but 
there is a tendency to exaggerate war damage in all areas, not just environmental. 
Technology in this case prevented a more severe impact on the environment. The 
long term impacts of the oil residues on the desert are still being examined. 

Oil was released into the Persian Gulf, supposedly to foul the water source for 
the Saudi Arabian water plants on the Gulf. The acute threat to the desalination 
plants that was originally feared was prevented by Coalition forces' efforts to 
minimize the environmental impact. On one occasion, a leaking oil system was 


specifically targeted so that the oil would stop flowing. The long-term impacts 
of the oil on the aquatic ecology of the Gulf was a question of significant debate, 
again with early predictions suggesting large damage. Studies continue on the final 

impacts on the oil residues in the Gulf. The long-term ecological and economic 

• 22 
impacts are uncertain. 

A similar spill in the Persian Gulf from the Al-Nowruz Oil Field in 1983 during 

the Iran-Iraq conflict allows a longer term analysis of the ability of the ecosystem 

to recover. Monitoring in 1989 showed no trace of pollution even at the lowest 

detectable levels. The absence of pollution was attributed to the presence of certain 

microorganisms that fostered biodegradation. Additionally, the climate and 

geological uniqueness of the Persian Gulf allows sunlight to penetrate the water 


for most of the year, which aids in the degradation process. 

Although the effects of the Operation Desert Storm oil fires and spills were 
minimal on a global scale, the long-term effects of military operations in the local 
area were more significant. The destruction of urban infrastructure in Kuwait 
destroyed waste water treatment facilities, resulting in raw sewage being emptied 
into the Persian Gulf. Resultant metal and pathological contamination levels 
differed depending on the specific outfall. Locally, this caused damage to fishing 
and recreation that depend on water quality. Destruction of water plants and 
electrical generators also had a large impact on the cultural environment. 

The Iraqi infrastructure was also damaged during Operation Desert Storm. 
Embargoes on materials needed to rebuild facilities to ensure sanitary conditions 
for the Iraqi population is a long-term and somewhat indirect effect of military 
operations. Without the ability to fix sanitary problems, the population is subject 
to the pathogens which cause disease and epidemics. Because of the embargo, 
effects of military operations in Iraq will be more long lasting than those in 
Kuwait. 24 

The largest impact was the abandoned and unexploded ordnance scattered 
throughout Kuwait and in southern Iraq. The cost of finding and removing the 
ordnance inside Kuwait drains resources for other rebuilding. A continuing threat 
to the population remains because finding and removing the unexploded materials 
to 100 percent "clean" are not possible. 

110 Protection of the Environment During Armed Conflict 

The requirement to dispose of war debris quickly causes the mixing of industrial 
and domestic waste. These facilities have an increased threat of methane gas 
problems and chronic pollution because the normal quality and regulatory 
controls were not enforced. PCBs from destroyed transformers pose an additional 
risk. Hazardous waste at abandoned or damaged industrial sites must be properly 
disposed of, requiring the expenditure of funds which are competing for other 
infrastructure projects. Untreated pathological waste from hospitals require 
special disposal to protect future health concerns. 

Some eighty ships were believed to be sunk during the Persian Gulf War . The 
contents of these ships and potential for pollution is uncertain. Testing has 
indicated higher levels of trace metals and hydrocarbons in the vicinity of one 
sunken tug. This demonstrates that these vessels are a potential source for 
long-term damage. 

The effect on the land and agriculture is uncertain. It took most European 
nations an average of 4.6 years to return to their pre-WW II production levels. 
During the Persian Gulf War, normal practices were interrupted as farmers were 
displaced or were called to serve in the armed forces. As a result, crops were not 
harvested, irrigation stopped, top soil eroded away, and pest control ceased. 
Furthermore, deposition from the oil fires interacts with the soil and effects its 


fertility. Irrigation, dependent on pumping, further suffers as power is 
interrupted and not available. 

Without the constant care and application of pesticides and integrated pest 
management, the pest problem increased. Pesticides were looted and less available. 
New pests have been observed. New strains of species and new habitats were 
allowed to develop because the normal treatment of pests was interrupted by 
military operations. 

Another long-term effect of military operations that is difficult to quantify is 
the loss of talented people, historical records and scientific equipment that could 
be used to provide better analysis of environmental problems and better strategies 
to recover. 

Much research has been done on the environmental impact of massive armor 
movement in the desert environment, both in the Persian Gulf and in our national 
training center. The migrating sand caused by the disturbance of the delicate 
"desert pavement" could have long-term effects: dune movement, sand storms, 


closing of airports, and encroachment on agricultural settlements. Vehicle tracks 
can remain for years depending on climatic conditions. The desert vegetation is 
quite sensitive to vehicle traffic and deposition of pollution caused by oil spills or 
fallout from oil burning. Fifty-year old tracks are still visible in California desert 
areas where General Patton conducted exercise maneuvers. In general, the soil 
in a desert environment is prone to more long-term effects than other soils. 

Finch 111 

Endangered species can be threatened by military operations. Habitats can be 
damaged and destroyed by military exercises causing long-lasting or irreparable 
harm to species. Long-term effects depend on the extent of the damage, 
contaminant residues, and ability of species, both flora and fauna, to recuperate. 

The near-extinction of the European buffalo due to unmanaged killing to feed 
the German army during World War II is an example of direct impacts that can 
threaten species' existence. The lobster harvest in Vietnam was severely impacted 
because of military operations. Civilians overharvested the lobsters to meet U.S. 
in-theater demand and because military operations rendered their previous 
civilian occupations too dangerous. Short-term economic gains caused long-term 
depletion of the lobster supply. In World War II, upon finding out that Japan was 
using elephants to resupply their armies, elephants were targeted by military 

32 r ... 

operations. The cruelty of war to animals was again seen in Operation Desert 
Storm as the Kuwait Zoo was subjected to indiscriminate slaughter of animals by 

Targeting or accidentally damaging chemical and nuclear facilities could pose 
a serious threat to the environment. 

Russian forces pummeled a Chechen oil refinery and sent shells dangerously close 
to an ammonia plant yesterday, raising the specter of a catastrophic explosion in the 
breakaway capital. 

In the Bosnian conflict, war damage to some fifty factories has polluted the 

Danube. Hazardous chemicals involved in the manufacturing of weapons and 

explosives, metal plating and refining oil, released into the environment pollute 

surface and groundwater. These pollutants can be passed down stream or settle in 

the river bottom to be a future problem once disturbed or dredged. Power plants 

that run treatment facilities are destroyed. The embargo policy of the current 

conflict in Yugoslavia also impacts the environment. Because the necessary 

resources cannot be acquired, contamination continues unabated. 

There is not a large volume of data describing the impacts of environmental 

damage from attacks on industrial facilities; however, examining the impacts of 

well-documented industrial accidents gives us an insight into what the likely 

results will be. Jiri Matousek, writing in 1990, identified ninety-nine chemical 

accidents this century with fifty-eight of them occurring between 1960 and 1990. 

The following are a couple of examples. 

In 1928, a ten-ton tank of phosgene gas (COCL2) ruptured at a Muggenburg 
chemical plant. The effect was acute, with eleven dead and over 200 injured within 
a fourteen kilometer area. 

On 3 December 1984, an explosion at a Union Carbide plant in Bhopal, India 
killed 2,300 and injured 30,000 to 40,000 people. The accident was due to a small 
amount of water being released into a storage tank of methyl isocynanate. 

1 1 2 Protection of the Environment During Armed Conflict 

Collateral damage from military operations could cause a similar tank to rupture 
and be exposed to water. The Bhopal plant was an insecticide manufacturing plant 
similar to those in many countries. 

The number of these types of chemical and nuclear facilities has increased 
dramatically this century. The effects of the nuclear accident at Chernobyl could 
also demonstrate the potential contamination and environmental effects of a 
nuclear facility damaged as part of a military operation. 

Increased awareness of the environment has produced domestic legislation that 
added liability impacts to the environmental threats of military operations. 

The environmental protection laws in the 1970s can be attributed to political 
pressure from the American people brought on by increased awareness of the 
environmental threat in general. In 1960, with the writing of Silent Spring by 
Rachel Carson, the environmental threats of the chemical industry were exposed. 
She observed that the 500 chemicals that were being added annually might have 


an effect on our ecology. With increased legislative activities came sanctions and 
an increased awareness for both the military and civilian populations. Realization 
of the military threat to the environment lagged somewhat. However, by the time 
of the Persian Gulf War, the environmental threat of military operations was well 
discussed. The potential for the loser to compensate the victor for environmental 
damage is now possible. In its report to the Congress on the Gulf War, the 
Department of Defense stated that: 

The Ottawa Conference of Experts also noted UNSC Resolution 687 (3 April 1991), 
which reaffirmed that Iraq was liable under international law to compensate any 
environmental damage and the depletion of natural resources. 

From petrochemicals to complex inorganics, from chemical and biological 
contaminants to nuclear weapons, the environmental threat of military operations 
has increased dramatically. The threat to the environment posed by military 
operations is now a concern of the Army. 

We have experienced a social change, an ethical change, in our concern for the 
environment. Roderick Nash, in his article "Do Rocks Have Rights?", presents 
an ethical evolution from the pre-ethical past of concern for self through a future 
ethical view that concerns the environment. It is an evolutionary awareness and 
adjustment in ethical thinking. The ethics move from an individual ethic, concern 
for self, through family, tribe, nation and race, until a sense of humankind is 
reached. The future ethical direction is one in which our flora and fauna have 
worth and a sense of stewardship and responsibility is accepted. Much like 
Maslow's hierarchy of need, the steps are evolutionary and require the movement 
from one stage to the next. 

Our world is in all the different stages of ethical evolution. Our potential 
adversaries may not share our ethical frame. Some underdeveloped nations, like 

Finch 113 

Somalia, are in the family/tribal stages of ethics and warfare. Rogue nations are on 
the rise. Military operations in Russia against the Chechen rebels can be seen as a 
national conflict, maybe even civil war. In South Africa we can see a racial ethical 
frame evolving, a concern for the equality of the different races. 

Our armed forces must adapt to a more advanced ethic that elevates concerns 
for the environment. The current military trend in armed conflict doctrine, as 
described in Force XXI, stresses information processing and technological 
innovations which reduce the size of the forces, increase precision and lethality, 
and increase the land area of operations. 

Although our technology is advanced, that of our enemy may run the spectrum. 
It is likely that environmental threats and impacts on the land caused by U.S. 
forces could decrease, but the statistics on Operation Desert Storm bombing show 
the continued practice of using less sophisticated weapons that more adversely 
affect the environment. Additionally, the U.S. Army may have to devise ways to 
deal with the environmental threats posed by our adversaries. 

We are in a constant transitional stage where warfare and ethics are connected. 
Our warfare evolution and our ethical evolution do not mean that everyone else is 
on the same level. An ethic that accepts a sense of responsibility for the animals, 
plants, and environment is not shared by all. The result is a variety of military 
operations that will have differing degrees of effects on the environment. As ethics 
and stewardship continue to play a more dominant role, effects of modern warfare 
on the environment can be minimized. 

National and international laws protect the environment and could pose liability 
and adverse financial impact on military units not complying with prescribed norms. 
Pollution prevention initiatives reduce cost, reduce quantities of hazardous materials, 
reduce the number of hazardous materials, and engineer-in less environmentally 
threatening operations. Good training practices can minimize adverse environmental 
impacts and increase awareness of environmental effects. Technology provides the 
ability to identify impacts through remote sensing and increases our ability to 
remediate environmental effects. 

Current environmental practices of our military during non-combat operations 
can mitigate the environmental threat. The nature of military operations other 
than war (MOOTW) puts importance on improving the infrastructure, public 
health, sanitation, environmental conditions, and quality of life for the nation we 
are assisting. We can expect to see our military in humanitarian operations and 
operations that place the military in a position of "stop the dying." Conflicts can 
be caused by adverse environmental impacts and scarcity of resources. The 
resolution of the conflict may depend on correcting/mitigating the environmental 
damage so the land can sustain its people. The mission of U.S. forces is often not 
to seize land, but to return someone else's nation to a democratic form of 
government. The land must be returned to the nation with minimal 

114 Protection of the Environment During Armed Conflict 

environmental cleanup requirements. Most nations we assist cannot afford costly 
environmental cleanup and infrastructure repair bills. Additionally, citizens, both 
in the nation we are assisting and at the home front, will only accept an 
environmental stewardship ethic. 
In conclusion: 

a. The environmental impact of military operations can be exaggerated in the 
short-term and very difficult to estimate in the long-term. It is therefore essential 
to apply science to accurately predict the impact of military operations and develop 
doctrine. Commanders can make the correct choice in military operations only 
when fully aware of the risks and uncertainties of the environmental consequences 
of their plans. There are times where military necessity dictates that military 
operations will adversely affect the environment. Our responsibility is to make 
that decision with as much accurate information as possible. 

b. Our ability to mitigate the effects of pre-mobilization/mobilization activity 
has grown immensely, particularly in comparison with World War II standards. 
From the 1980s to the 1990s, waste generation in the defense industry was reduced 
by more than 60 percent. We are now much better suited to mitigate the damages 
from training activities. 

c. Our ability to cleanup unexploded ordnance, particularly buried mines, 
continues to challenge available resources and technology. Mines are problems in 
countries throughout the world; they continue to claim even the most innocent 
victims. Detection and removal remains tedious, dangerous, and costly. 

d. A full range of warfare is possible, and even though the U.S. military may be 
capable of mitigating the environmental impact brought on by armed conflict, 
there are other nations that are in different stages of the evolution of 
"environmental ethics" which can pose a greater threat to the environment. The 
use of terrorist attacks specifically to damage the environment is also possible. An 
enemy might target a cultural or historical symbol for psychological effects much 
as the Athenians did at Delium. 

e. To the maximum extent possible, we (the American military) must succeed 
in leading by example. Military operations must be accomplished in concert with 
environmental stewardship. 


•Director of Environmental Programs, Office of the Assistant Chief of Staff for Installation Management, 
Department of the Army. 

1. Hanson, £>*/»um, 8, Q.J. of Mil. Hist. 28 (1995). 

2. Id at 29. 

3. War and the Environment, a Collection of Essays, Audubon, Sep. -Oct. 1991 at 88. 

4. The War of Rebellion: A Compilation of the Official Records of the Union and Confederate Armies, Scries 1, Vol. 

5. Williams, Crimping Defense Environmental Programs Would be Major Mistake, National Defense, ADPA's Bus. 
& Tech. J. 4 (Apr. 1995). 

Finch 115 

6. U.S. Congress, Office of Technology Assessment, Complex Cleanup: The Environmental Legacy of the Nuclear 
Weapons Production, (OTA-0-484) 4 (Feb. 1991). 

7. Cahill, Clearing The Fields 4 (1995). 

8. Id. 

9. Goldfarb, Will Environmental Degradation be a Feature of International Conflicts in the Future, in Taking Sides, 
Clashing Views of Controversial Environmental Issues, 342 (5th ed. 1993). 

10. Id. 

1 1 . Crosby & Wong, Environmental Degradation of 2, 3, 7, 8 Tetrachlorodibezno-p-dioxin (TCDD), 195 Science 1 337-8 
(1977), as referenced in The Center for Disease Control, Health Study: The Comparison of Serum Levels 2, 3, 7, 8 
Tetrachlorodibezno-p-dioxin with Indirect Estimates of Agent Orange Exposure Among Vietnam Veterans, Final Report, 3 
(Sept. 1985). 

12. Wipf & Schmid, SEVESO — An Environmental Assessment, in Human and Environmental Risks of 
Chlorinated Dioxins and Related Compounds (Tucker & Young eds. 1983). 

13. Fallows, in Audubon supra n. 3 at 94. 

14. Richards, The Hardest Victory, RAF Bomber Command in the Second World War 178 (1995). 



17. Kahu, in Audubon supra n. 3 at 92. 

18. A Case Study of Crimes Against the Environment — Kuwait, in Environmental Protection Council, State of 
the Environment Report 17 (Nov. 1991). 

19. Khordagui & Al-Ajmi, Environmental Impact of the Gulf War: An Integrated Preliminary Assessment, 17 Envtl 
Mgmt 558 (1993). 

20. Id at 562. 

21. U.S. Department of Defense, Final Report to Congress, Conduct of the Persian Gulf War, App.O, at 625 (Apr. 

22. Supra n. 18 at 35. 

23. Khordagui & Al-Ajmi, n. 19 at 562. 

24. Pearce, Water in the War Zone, New Scientist, Dec. 17, 1989 at 13-14. 

25. Supra n. 18 at 36. 

26. Id. 

27. The Military Impact on the Human Environment, 1978 Stockholm Intl Peace Research Inst. Y.B., at 77. 

28. Supra n. 18 at 41, 43. 

29. Holden, Kuwait's Unjust Desserts: Damage to its Desert, News & Comment, Mar. 8, 1991, at 1 175. 

30. Supra n. 18 at 41. 

31. Fisher in Audubon, n. 3 at 96. 

32. Browne in Audubon, n. 3 at 90-91. 

33. Chechen Oil Refinery Burns, Times Herald Record, Dec. 31, 1995, at 7. 

34. Supra n. 24 at 13-14. 

35. Supra n. 19 at 557. In this article the authors claim the environmental impact was exaggerated and that "unlike 
water and air, soil pollution is likely to persist for years to come." 

36. Rice, .<4 Casualty of War: The Nicaraguan Environment, Tech. Rev. 62 (May/June 1989). 

37. Matousek, The Release in War of Dangerous Forces from Chemical Facilities in Environmental Hazards of War 
(Wesainged. 1990) at 31. 

38. Marco, Hollingworth & Durham, Silent Spring Revisited 17 (1987). 

39. Supra, n. 21 at 625. 

40. Nash,Do Rocks Have Rights?, Center Mag. 3 (Nov-Dec 1977), a* referenced in Keller, Environmental Geology 
3 (6th ed. 1992). 

41. Id. 

42. U.S Department of the Army, Force XXI, 45, no. 5, Army (May 1995). 

43. Herding, The Battle ofOom Chalouba 17 June 2008, Armor 34-37 (Jan-Feb 1995). 

44. Ruckelhaus, National Security and the Environment, text of a lecture given at the United States Military Academy, 
Mar. 30, 1995, at 16. 

45. Keller, supra n. 40. 

Chapter X 

The Environmental Threat of Military 


William M. Arkin* 

The Gulf War created one of the largest single man-made disasters in history, 
oil fires greater in number than all previous well fires added together, and 
slicks more than two to three times the size of the world's previously largest oil spill. 
Damage to the coastal and desert ecology of southern Iraq, Kuwait, and Saudi 
Arabia — from the fires and spills, from military fortifications and land mines, from 
attacks on oil and petrochemical installations, and then from intense operations by 
two of the largest tank armies ever assembled — produced widespread destruction and 
disrupted a fragile balance. Routine movements and encampments produced solid 
waste on a huge scale. Oil fires produced historically unequaled emissions of 
hydrocarbons. An otherwise vibrant and fertile Euphrates River valley was damaged 
by a breakdown of irrigation and agricultural systems, and continues to deteriorate 
due to ongoing Iraqi ecocide practices in response to insurgency. 

Environmental damage provoked a torrent of speeches, legal briefs and journal 
articles, conferences and meetings; intense lobbying by environmental and 
humanitarian organizations; was the subject of proposals for a "Fifth" Geneva 
Convention and other new protections; was discussed extensively in the Sixth 
Committee of the United Nations General Assembly in 1991 and 1992; deliberated 
by an International Committee of the Red Cross (ICRC) Experts Group; on the 
agenda at the United Nations Council for Economic Development (UNCED); 
considered in the U.S. Government's review of Iraqi war crimes; and included in 
the Pentagon's final report to Congress on conduct of the war. "Data" about the 
oil spills and fires even has its own place on the Internet. 

On the surface, all the huffing and puffing has produced little. Before the war, 
the Bush Administration in National Security Directive 54 (NSD-54) designated 
destruction of Kuwait's oil resources as one of three "unconscionable acts" (along 
with the use of chemical and biological weapons and acts of international 
terrorism) for which the Iraqi leadership would be held personally responsible. 
President Bush's eleventh hour letter to Saddam Hussein forcefully threatened a 
"terrible price" in retaliation. 

Governments such as Jordan were early doomsayers about the environmental 
threat, agitating strongly for action after the war. But politics intruded and they 

Arkin 117 

subsequently retreated, not wanting to condemn their resilient and powerful 
neighbor. Nor did Kuwait or Saudi Arabia formally "charge" Iraq. Neither wanted 
to further fan the flames, nor potentially open up their own half-hearted clean-up 
efforts and environmental practices to greater outside scrutiny. 

Yet war crimes have not been pursued and since Operation Desert Storm, U.S. 
Government lawyers (and those of most other developed nations) have argued that 
the problem is neither scope nor shortcomings in international law but compliance 
and enforcement of existing law. International "political-strategic" 
considerations thus take priority over protection of the environment. In this 
regard, it could be said that advances of the last two decades in environmental 
accountability have been superseded by a version of "supreme national interest." 
Which is to say, if a credible scenario for reverberating environmental destruction 
on a global scale could be postulated, then likely the conduct of warfare would take 
precedence over the potential widespread harm. 

The environmental calamity and lack of formal legal action in the Gulf War 
may thus seem an odd context in which to claim that environmental protection 
has advanced, yet the true story of the war is one of a high degree of sensitivity to 
environmental destruction by both sides, and at least by one, significant 
self-imposed constraints, many corresponding to the very restrictions that 
Coalition government lawyers eschew. The environmental issue was "used" by 
both sides in a cynical way, but public visibility of the environmental dimension 
of warfare was also highly influential. Though Iraq's destruction went unpunished, 
if there is a silver lining, it is that it and other environmentally destructive practices 
that Pentagon lawyers otherwise condone have essentially become "outlawed" in 
common practice. 

For the American side, much of the history regarding political constraints on 
air power and ground operations remains shrouded in secrecy. The reason seems 
obvious: Government lawyers and military planners have little interest in seeing 
public expectations codified as new combat doctrine, policy, or law. 

I remember having an argument with a military lawyer in 1992 as to whether 
the U.S. Marine Corps even used napalm in the air war. The lawyer asserted that 
they did not, and I told him that I had Marine Corps documents specifying how 
many and by which airplanes. His denial is instructive about the real impact 
environmental and humanitarian considerations have on US military operations. 
Though napalm is not an "illegal" weapons per se, its employment for particular 
purposes probably no longer is possible without provoking negative publicity. So 
public announcements of its use are suppressed, even denied. 

Napalm was "tried" as a weapon in the Gulf War, as were fuel air explosives, 
mostly to aid in the breach of Iraqi defenses and to overcome minefields and fire 
trenches. For these purposes, the weapons did not make much of an impression, 
and their value to commanders in comparison with other weapons did not exceed 

1 1 8 Protection of the Environment During Armed Conflict 

the potential public outcry that might have resulted from their use, particularly 
as anti-personnel weapons (even against enemy soldiers). 

The use of napalm is just one example of where the gap between 
political/public-relations constraints and "legal" constraints seems to be growing. 
The result can be strange justification for the "need" to bomb targets that are 
otherwise politically stigmatized. Take dams for instance. Though legitimate 
targets, because of their potential for unleashing enormously destructive forces 
on the civilian population, they acquired political sensitivity through the Korean 
and Vietnam wars, so much so that their attack is generally restricted even in U.S. 
military doctrine. 

The bombing of Iraqi dams was suggested early on as a punitive measure, 
potentially in response to the use of chemical weapons, but was rejected. No 
prohibitions perse against hitting hydroelectric power stations collocated at dams 
were incorporated into Operation Desert Storm rules of engagement. 
Nevertheless, military lawyers argued that in such attacks, dams and dikes would 
have to be avoided "for humanitarian/political reasons." Little more arose on the 
subject until after the war. Then the same lawyers counseled that dams and dikes 
should be bombed in future conflicts, less the option to bomb them be lost in some 
legal prohibition that merely follows common practice. 

The cases of napalm and dams are instructive. For regardless of official 
"legality," there are a set of weapons and targets that now seem to be particularly 
"controversial," receiving a disproportionate degree of attention in the news 
media, and within the humanitarian community. Weapons include napalm, fuel 
air explosives, depleted uranium, cluster bombs, anti-personnel mines, riot control 
agents, incendiaries, and blinding lasers. Targets that have acquired negative 
repute, mostly because of adverse human or environmental effects, include water, 
dams, nuclear power plants, electrical power, oil and petrochemical facilities, as 
well as other civilian utilities. 

It is important to establish from the beginning that the environment does not 
just mean trees, or birds, or water. It is the natural surroundings that support 
human life. Within the intricacies of international law and practice, 
environmental protection is increasingly and inextricably a part of human rights 
law: "It is now recognized that personal growth and happiness — fundamental 

human rights — cannot be achieved in a severely damaged environment." 

Some theorists in the military — prophets of "information" or "parallel" 

warfare — assert military benefit behind the reverberating impact of destruction of 

interconnected systems. Yet loss of electricity (or computer networks) is not just 

relevant for its speculative second- or third-order potential to disable air defenses 

and command and control. The first order effect on water purification and 

distribution, and the resulting environmental and direct harm to human health, 

is of greater consequence. 

Arkin 119 

In this paper, I examine more closely three environmental issues which bear 
upon the conflict between the ethic of protection and military necessity. In the 
case of oil fires and spills, I argue that the lack of international action to hold Iraq 
responsible weakens the existing standards of protection. I argue that the reason 
for lack of action on the part of the United States is that responsibility for the oil 
damages proved more complicated than the popular charge of "environmental 
terror" suggested. In the case of destruction of electricity, I argue that the concept 
of "collateral damage" needs to be expanded, given the ability of military 
technology to limit direct but not indirect effects of destruction on systems 
indispensable for the survival of the civilian population. I then look at the set of 
stigmatized weapons and speculate that their reputation is born not just of 
particular cruelty or suffering, but because of a sense of their "toxicity" and 
long-term damage. The emotional debate regarding the "Gulf War syndrome" 
should prove instructive with regards to the many unknowns and risks that lurk 
behind new technology. In fact, the public conscience seems a finer gauge of the 
"legality" or "desirability" of new weapons than does the formal review process 
undertaken by Pentagon lawyers. 

Spills, Fires, and Dilution of International Law 

Environmental damage in the Gulf War occurred both as a result of acts of 
deliberate destruction and malice, and as an unintentional byproduct of military 
activity. The vast majority of the fires and spills were the result of Iraqi sabotage 
of Kuwait's oil industry. But Coalition military action contributed. 

In December 1990, Iraqi engineers detonated six oil wells and ignited basins of 
oil in Kuwait, practicing procedures for the subsequent larger scale destruction. 
Iraq then packed wellheads with plastic explosives, linking them together with 
electrical and mechanical detonators. On 21 January, less than a week after the 
start of the air war, 60 wells in and around Al Wafrah in southern Kuwait were 
exploded. At about the same time, refineries and storage tanks at Mina ash 
Shuaybah and Mina Abd Allah, on the coast south of Kuwait City, were also set 
ablaze. On the eve of the ground war, on or about 22 February, Iraq started to 
detonate the remaining wellheads, the majority centered in the Al Burgan oil field 
south of the Kuwait International Airport. 

In all, Iraq destroyed 732 wells, 20 oil and gas gathering stations, and 

damaged four refineries, as well as downstream oil facilities such as gathering 

manifolds, tank farms, pipelines, and offloading facilities. Two of four natural gas 

booster stations were also damaged. Of the 732 sabotaged wells, 650 were set aflame, 

i ^ 
and 82 were damaged sufficiently to cause them to gush oil uncontrollably. 

Fires, as well as large amounts of oil exposed to the natural environment, created 

noxious gases and massive amounts of inhalable particles. At the height of the 

fires, the amount of soot emitted was estimated at 5000 tons per day, the equivalent 

120 Protection of the Environment During Armed Conflict 

of 46 million heavy-duty diesel trucks, roughly nine times the number in the 
United States, driving at 30 miles per hour. The last well fire was extinguished 
on 6 November 1991. But that is not the end of the story. 

What really happened in the rapidly moving and confusing war? On the first 
morning of the air war, U.S. Navy planes bombed an Iraqi oil platform and loading 
terminal in the northern Gulf at Mina Al Bakr, evidently creating the first oil slick. 
On the seventh day of the air war (23 January), U.S. Navy aircraft struck the Iraqi 
tanker Amuriyah while underway in the northern Gulf, as it was refueling a 
Winchester class air-cushioned landing craft. The resulting secondary explosions 
destroyed the tanker. That same day, an^4/ Qadisiyah -class tanker moored on the 
coast of Kuwait was also destroyed by French aircraft. Two days later, two oil slicks 
were reported in the Gulf, one in the vicinity of where the Amuriyah was sunk, and 
the other at the Sea Island terminal off the coast of Kuwait. Intelligence analysts 
believed the second slick had been started by Iraq, and oil from the terminal 
quickly extended down the coast of Saudi Arabia. 

On 25 January, U.S. Navy units engaged an Iraqi mine-laying vessel near the 
Sea Island terminal, setting a part of the terminal and surrounding water afire. 
Another oil slick was identified further north on the Kuwait coast on 26 January. 
It was evidently the result of Coalition bombing of the Ras al Qulayah naval base 
and surrounding facilities. Oil continued to leak from the Mina Al Bakr terminal 
and the Amuriyah tanker nearby. On 27 January, U.S. Navy aircraft engaged two 
additional tankers riding high in the water northeast of the Bubiyan Island 
channel. Both tankers were struck and one was later reported aground and leaking 
oil on the north bank of the Khorr Abd Allah. A pipe on the southern tip of 
Bubiyan Island, originating in the Rawdatayn oil field in northern Kuwait, was 
also observed leaking oil, evidently from Coalition bombing. The tanker Hittin 
was reported on fire at the Mina Al Ahmadi north pier on 28 January. On 2 
February, intelligence observers reported that a slick emanating from the northern 
Gulf was growing larger; origin unknown. 

I go through this somewhat confusing and highly abbreviated chronology 
because the official story looks very different. 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. Soon after the start of allied military action, moored Iraqi 
tankers south of Kuwait City also supposedly began discharging oil into the Gulf. 
There is no mention of their being bombed, or of other tankers being targeted. The 
Saudi oil storage facility and refinery at Al Khafji, just south of the Kuwaiti border, 
was shelled by Iraqi artillery, and it began to leak oil. Saudi oil platforms were 
damaged by drifting Iraqi sea mines. Later, Iraqi tankers anchored northeast of 
Bubiyan Island also began expelling oil, but again no mention of the attacks by 
Coalition aircraft. Damaged Kuwaiti refineries and oil tanks along the coast are not 

Arkin 121 

revealed. Many of these were the objects of aircraft bombing and intense naval 
gunfire. The combined spill was eventually, estimated at 7-9 million barrels. 

The considerable fallout from the oil-fire smoke plume immediately effected 
public health, and ultimately damaged significant land and water areas. Because 
the plume remained between 1500 and 13,000 feet, and was never detected above 
18,000 feet, the global spread in the upper atmosphere was minimized. 
Nevertheless, smoke had a regional climatic effect — area surface temperatures 
were below normal by as much as 10 degrees Fahrenheit in 1991. There was a 
decline in agricultural productivity in the region, as well as increased animal 
mortalities due to ingestion of oil-tainted vegetation. Oil continued to leak into 
the Gulf from a number of sources until late May or early June, adding as much 
as one-half million barrels beyond the end of the war. Eventually, oil fouled 400 
miles of Saudi coastline, inundating salt marshes and tidal areas with oil, and 
killing marine life and diving birds. 

There is little evidence that Coalition attacks on tankers or oil targets balanced 
military necessity against whatever environmental damage might occur. But the 
bombing of tankers was an internally controversial matter. Indeed, while some 
planners and commanders outside the Navy argued that tankers were off limits, 
the top Navy commander argued that they were as legitimate as electrical power 
or other civilian utilities. 

In the end, Iraqi environmental destruction dwarfed the various U.S. 
contributions, but war crimes were not pursued for various forensic reasons, and the 
full story of the destruction of oil could not be told for fear of implicating the United 
States. Pentagon lawyers asserted that the 1977 Environmental Modification 
Convention (the ENMOD Convention), and 1977 Additional Protocol I to the 

17 18 

Geneva Conventions "were not legally applicable in the Persian Gulf War." What 
is more, they concluded that even had Additional Protocol I been in force, the damage 

would not have applied because it did not reach the required legal threshold. The 

U.S. Government even stated in its environmental report to Congress that Iraqi 

actions "were probably done to slow or prohibit an amphibious landing of Coalition 

forces in Kuwait and Saudi Arabia," thus giving credence to future justifications of 

environmental destruction as having military purpose. However, as all the evidence 

shows, the Iraqi actions were acts of pure destruction where the military implications 

were secondary or even inadvertent. The Iraqis knew that they were destroying the 

environment. Indeed, there is evidence to indicate that they thought that their actions 

would have an even greater impact. 

Destruction of Electricity and Redefining Collateral Damage 

Before the Gulf War, destruction of electrical power production in warfare had 
been pursued with varying effects yet with identical results: The nullification of 
electrical energy was a minor, if not inconsequential, incumbrance to military 

122 Protection of the Environment During Armed Conflict 

operations. Though some argue that the Gulf War was a significant departure 
from previous experiences, the military impact seems to be no different than 
World War II, Korea, or Vietnam. Sufficient damage was done to the national 
grid to essentially cause a nationwide blackout within a week of the U.N. 
deadline, but military capabilities powered by central electrical grids were also 
the object of intense direct attack and they were degraded mostly because of 
that direct bombing, not because they lost power. Coalition electronic warfare 
and countermeasures efforts, and suppression of enemy air defenses (SEAD) 
directed against modern electronic accoutrements of war were also 
unprecedented in their scope and intensity, further diminishing the unique 


and circumscribed impact ("non-lethal") of destroying electrical power. 
Though the destruction of electricity was pursued honestly as a means to effect 
Iraq's air defenses and command, control, communications, and intelligence 
(C3I), and may have helped to paralyze Iraqi armed forces, the civilian impact 
outweighed the military benefit. 

Iraqi electricity was largely cut throughout the country starting from the first 
night of the war (17 January) and production did not resume until the late 
March-April time frame. Iraqi officials state that allied bombing knocked out 75 

percent of the country's electrical generating plants. Unanticipated by air 

planners, the civilian life-support system was brought to a halt, and everything 

from heating and air conditioning; to water supply, purification and sewage 

treatment; to medical care was interrupted. In March 1991, United Nations envoy 

Martii Ahtisaari reported on the civilian effects of electrical bombing: 

The role of energy in Iraq is especially important because of the level of its 
urbanization (approximately 72 per cent of the population lives in towns and cities), 
its industrialization, and its prolonged, very hot summers. 

Ahtisaari's U.N. field mission found that, "all previously viable sources of fuel 
and power (apart from a limited number of mobile generators) ... are now, 
essentially, defunct .... Additionally, there is much less than the minimum fuel 
required to provide the energy needed for movement or transportation, irrigation, 
or power generators to pump water and sewage." Iraq's biggest recovery problem 
in the post-war period was the destruction of its energy and power resources — "an 

omnipresent obstacle to the success of even a short-term, massive effort to 

maintain life-sustaining conditions in each area of humanitarian need." "Iraq in 

recent years had become a high-tech society dependent on electric power generation 

for irrigation, medical services, communications and industry," another early field 

report concluded. 

Electrical bombing proved one of the most controversial aspects of Gulf War 

bombing, and the Defense Department, in its Final Report to Congress on the 

Arkin 123 

Conduct of the Gulf War, explained the purpose and reasoning behind the attacks. 
The destruction of electricity, it said, 

had a cascading effect, reducing or eliminating the reliable supply of electricity 
needed to power NBC weapons production facilities, as well as other war-supporting 
industries; to refrigerate bio-toxins and some CW agents; to power the computer 
systems required to integrate the air defense network; to pump fuel and oil from 
storage facilities into trucks, tanks, and aircraft; to operate reinforced doors at aircraft 
storage and maintenance facilities; and to provide the lighting and power for 
maintenance, planning, repairs, and the loading of bombs and explosive agents. This 
increased Iraqi use of less reliable backup power generators which, generally, are slow 
to come on line, and provide less power. Taken together, the synergistic effect of 
losing primary electrical power sources in the first days of the war helped reduce 
Iraq's ability to respond to Coalition attacks. The early disruption of electrical power 
undoubtedly helped keep Coalition casualties low. 

It was a laundry list of potential and postulated effects, but not a report of 
observed or provable impact. 

From the beginning, the military recognized the intimate connection between 
destruction of electricity and the livelihood of the civilian population. "Because 
of our interest in making sure that civilians did not suffer unduly," General 
Norman Schwarzkopf stated on 30 January, "we felt we had to leave some of the 


electrical power in effect, and we've done that." 

Air war planners made attempts to limit the overall impact of shutting down the 
electrical system on the civilian population, focusing targeting on distribution as 
opposed to generation subsystems, and limiting the amount of destruction at harder 
to repair generating facilities. Because of confusion in the target guidance and the 
normal fog of war, the limitations were not followed. In addition, planners were 
wrong in their assumption of rapid U.S. or international intervention because of 
Iraq's defeat to repair the utility. The effect on the civilian population was 

The Gulf War Air Power Survey (GWAPS) concluded that nullification of 

electrical power was achieved with "remarkably little collateral damage." 

Collateral damage, here defined as incidental and unintended civilian casualties 

sustained in the course of attacks, was indeed extremely low. Ignored, however, is 

the far more injurious secondary collateral damage caused by accurate attacks. The 

air war spared Iraqis from the indiscriminate effects of urban bombing, yet 

efficiently disabled society's support systems, with the attendant short- and 

long-term impact. Civilian harm was compounded by the fact that civilians were 

otherwise spared the direct effects of bombing in the highly discriminate 

"strategic" bombing campaign. The result magnified the electrical effect. 

Electricity is so important to modern societies that attacks that could have 

severe effects on the noncombatant population should be prohibited. The U.S. 

124 Protection of the Environment During Armed Conflict 

government accepts as customary law, as codified in Additional Protocol I, the 
prohibition on the deliberate starvation of civilians, and the intentional 
destruction of food, crops, livestock, and other objects indispensable to their 
survival. The U.S. also does not object to Article 54 of Additional Protocol I which 


protects "drinking water installations." 

But these restriction do not extend to destruction of installations that could 
result in identical secondary effects. Thus, the destruction of dual-purpose power 
grids are not restricted from attack. The ICRC list of categories of objectives of 
"generally recognized military importance" created in 1956 included: 

installations providing energy mainly for national defense . . . plants producing gas 
or electricity mainly for military consumption. 

The U.S. defended the right to attack integrated power grids as legitimate 


targets throughout the negotiation of the Additional Protocols. U.S. negotiator 
Ambassador George Aldrich noted that "of course we knew about power grids and 
of course we were not going to agree to a provision that prohibited attacks on key 
elements of power grids." Aldrich says attacks are allowed on power 
stations — including nuclear reactors — that service central grids because the grid 
itself is an example of "regular, significant and direct support of military 


operations" as defined under Additional Protocol I. 

Yet proof of "definite military advantage" required by the customary law 
definition of Article 52 of Additional Protocol I is difficult. Writing recently in 
The Journal of Strategic Studies, a former "Checkmate" Gulf War planner concludes 
that while the destruction of the Iraqi electric grid 

almost certainly had a significant impact on several key Iraqi subsystems, the 
specifics are still unknown. Until we get much greater access to Iraqi officials and 
documents we will not know how badly the loss of the electric grid hurt the Iraqi C3 
network, its NBC research and development complex, or air defense system. 

The author argues in the forthcoming "Power Failure: Destruction of 
Electricity in the Gulf War," based upon extensive research in Iraq, that in fact 
destruction of electricity had negligible military advantage for the United States. 

Indeed, destruction of any target must also be shown not to be "excessive" in 
relation to whatever military advantage is being sought. Destruction of civilian 
electrical power generation is thus a violation of the prohibitions in customary 
international law against "any military operation which is not directed against a 
legitimate military target or which can be expected to cause incidental death, 
injury or damage to civilians that is clearly excessive in relation to the direct 
military advantage of the operation." 

Arkin 125 

Toxicity on the Battlefield 

The Gulf War witnessed the most extensive and widespread use of submunitions 
in the history of conflict, the first combat use of depleted uranium weapons, and 

large-scale mining both on land and at sea. The result was a significantly increased 

explosive ordnance disposal and battlefield remnants problem. Ironically, while 

Iraqi use of mines and the land mine problem has received the majority of attention, 

cluster bombs were far more injurious and damaging, and depleted uranium far more 

emotionally and symbolically important. 

Cluster bombs and land mines (often called "grenades" in ground-delivered 

weapons and "bomblets" in air-delivered weapons) are nothing new, and they 

hardly received the attention in the Gulf War reserved for smart weapons. Most 

people are even unaware of what submunitions are, let alone that they constituted 

a quarter of the weapons dropped by aircraft. Some 61,000 were expended, totaling 


some 20 million bomblets (Table 1). 

Table 1 
Air-delivered Cluster Bomb Expenditure in the Gulf War 



Number Expended 

United States 

Air Force 








Mk20 Rockeye 







21 5 696 a 





















61,799 b 

AA: anti-armor with poor fragmentation and incendiary capability; APAM; anti-personnel/ 
anti-materiel; CEM: Combined effects munitions (light anti-armor and anti-personnel); 
Frag: incendiary/fragmentation bomblet with no anti-armor effect; Gator: air-delivered 
magnetically fused heavy anti-tank and tripwire anti-personnel mines. 

a Sources vary on the number of CBU-52/58/71 cluster bombs expended, some stating 
17,831. The higher official number was chosen; see GWAPS, Vol. Ill, Part I, at 234 & 256. 

Does not include a complete count of allied use of cluster bombs, particularly French 
and Saudi. The BL-755 is a British-manufactured cluster bomb. 

Sources: U.S. Department of the Air Force, Gulf War Air Power Survey (GWAPS), 
Volume III, Part I, p. 235, Volume IV, Part I, p. 65, Volume V, Part I, pp. 550-552; 
House of Commons, Preliminary Lessons of Operation Granby Quly 1991), p. 86. 

126 Protection of the Environment During Armed Conflict 

Modern submunition weapons consist of two main types — those delivered by 
aircraft, and those by surface artillery or rockets. Weapons carrying 
submunitions disperse them over a large area, thereby increasing the impact area 
of an attack. The large number delivered in a dispenser increases the density of 
explosives in a target area, with submunitions designed to strike every few feet or 
so. An artillery or rocket barrage, or an air attack, typically can disperse thousands 
of submunitions within a small space, a common target area in planning roughly 
being an area 100x50 meters. Obviously, an attractive feature for militaries is that 
the submunitions are inexpensive given the area of destructive potential in 
comparison with unitary explosives. 

Even though weapons are being designed to be more and more "reliable," because 
submunitions are used in such large numbers, "reliability" as it relates to unexploded 
ordnance and environmental damage on the battlefield (and in civilian locations when 
cluster bombs are chosen for an urban attack) has actually declined (within the context 
of otherwise discriminate attacks). As the use of smaller and smaller munitions 
increases, more and more numbers are expended in battle. The large number of 
weapons, individually less expensive, intentionally more expendable and simply 
designed, creates more of a lingering problem. Small, inexpensive electronic fuses are 
more prone to malfunction under severe conditions. 

In the Gulf War, cluster bombs delivered from medium and high altitudes 


experienced "excessively high dud rates."" Despite contact fuses and secondary 
firing systems, an enormous number failed to detonate, particularly when landing 
in soft sand and shallow water or mud. Ground-delivered (e.g., artillery or rocket) 
submunitions also experienced high dud rates. Estimates vary from the 
conservative 2-5 percent claimed by manufacturers, to up to 23 percent observed 
in acceptance and operational tests, to an average of 10-30 percent observed on the 
ground after the war in Iraq and Kuwait. Even a conservative five percent 
estimate means that some 2.2 million unexploded bomblets were left behind, 
almost half from air-delivered bombs. 

With the proliferation of remotely delivered submunitions, both air and ground 
delivered, emplacement of mines by the individual soldier is increasingly a less 
important theater operation in high technology warfare. Air-delivered cluster 
bombs and scatterable artillery-, helicopter-, or rocket-delivered submunitions 
will predominate in the future. There are a number of implications from this 
"advancement:" placement is by necessity more random, more driven by 
short-term considerations on the battlefield given the flexibility of the weapon. 

Well over one million anti-tank, anti-personnel, and sea mines were emplaced 
by Iraq in the Gulf War. In terms of clean up, the difference between cluster bombs 
and mines is that grossly insufficient procedures and requirements exist to recover 
unexploded bomblets scattering the battlefield. With ground- and air-delivered 

Arkin 127 

submunitions, there are no restrictions and the very nature of the weapons often 
defies precise mapping of their expenditure. 

During the Cold War, the military was less concerned about submunition 
placement and dud rates because weapons were developed to defend against a 
Soviet offensive in Western Europe, one which would not have required U.S. 
soldiers to occupy "submunition-contaminated" areas. With the large scale use 
of submunitions in a rapidly moving offensive battlefield, such as the Gulf War, 
however, friendly hazards were immediately felt. One government study 
concluded that during Operation Desert Storm at least 25 U.S. military personnel 

A O 

were killed and others were injured by submunitions fired by their own forces. 
Troops with the U.S. 1st Armored Division, for example, said that the principal 
threat they faced was "unexploded ordnance believed to have been left over 
from . . . earlier American bombardment." The situation was so critical that 
large scale use of cluster bombs by aircraft was restricted during the ground war 
for fear of friendly casualties and, in some instances, "ground movement came 
to a halt because units were afraid of encountering unexploded ordnance." 

In the immediate aftermath of Operation Desert Storm, unexploded 
submunitions killed or injured more than 100 soldiers and military explosive 
disposal specialists. Post-war injuries to U.S. soldiers from unexploded ordnance 
on the battlefield, particularly because of the excessive "dud rate" of 
ground-launched submunitions, became so serious that Congress requested that 
the General Accounting Office (GAO) investigate manufacturing, purchasing and 

A 7 


The military effectiveness of submunitions varies, but it far from clear that 
either ground- or air-delivered submunitions, or land mines, have advantages that 
outweigh the human and environmental impact. Aerial cluster bombs proved 
ineffective in the armor attack role during the Gulf War, and with the emergence 
of a wide variety of precision anti-tank weapons, they seem less and less attractive 
weapons for such attacks in the future (particularly where U.S. forces have to 
operate). Use of cluster bombs against urban targets, given the constraints of 
restricting collateral damage and civilian effects, seems counterproductive. 
Indeed, cluster bombs used in strategic bombing attacks proved a bit of a nuisance. 
Given their properties of small explosions and broad dispersal, they greatly 
complicated battle damage assessment as the noticeable impact on stationary 
targets (as opposed to larger explosives of 500-2,000 pound class) was difficult to 
assess via reconnaissance. 

There are circumstances in which the use of cluster bombs might be beneficial 
in terms of limiting collateral and reverberating damage. In the Vietnam War, for 
instance, cluster bombs were used to attack anti-aircraft artillery guns that had 
been placed on embankments and dikes in the north. The guns could be 
suppressed without doing harm to the irrigation and water control structures. 

1 28 Protection of the Environment During Armed Conflict 

The large scale use of Iraqi mines also proved more of a nuisance than a decisive 
military instrument. Mines, in order to be effective against modern forces, need 
to be maintained and protected by covering fire, and are therefore not as attractive 
for large scale use by sophisticated militaries as are submunitions. In fact, the new 
generation of scatterable mines (delivered from artillery, aircraft and ground 
dispensers) which entered arsenals in the 1980's will likely replace hand-sown 
mines in the future. These can be mass emplaced in mobile or tactical settings, 
and employ influence sensors and electronic timers. 

When submunitions and mines are evaluated for their military effect in many 
missions — particularly given the emergence and success of smart weapons — or 
when their use is measured against the collateral effects, they are far less attractive. 
The effects are immediate and measurable. In the case of depleted uranium (DU) 
as an anti-tank weapon, the effects are more subtle. 

Depleted uranium is used in armor penetrators, both in bullets shot from 


aircraft (and ship-based gattling guns) and in tank ammunition. Because of 
uranium's density and physical properties, it is attractive as an alternative to 
tungsten or other more expensive metals. In the Gulf War, about 14,000 DU tank 

rounds were consumed (4000 fired in combat) and 940,254 30mm DU bullets were 

fired by A- 10 aircraft. The health and environmental risks remain unclear; the 

U.S. Army itself states that there is a "need for more data on potential health and 

environmental consequences associated with the chemical and radiological 

characteristics of DU." A January 1993 GAO report found that the Army did not 

have a comprehensive DU battlefield management plan. 

As a result of medical screening at the end of the war, some 35 soldiers were 
found to have traces of uranium in their urine. Approximately 22 soldiers may 
have retained embedded DU fragments. Early in reporting on the so-called "Gulf 
War syndrome," DU was identified as a possible contributing factor to the 
unexplained illnesses being reported by veterans (and was the subject of 
considerable Iraqi propaganda). Though no one now believes that DU is 
ultimately causal, the Army admits that the long-term health effects have not been 
well defined, and the proliferation of DU weapons to other nations will 
undoubtedly increase whatever risks do exist. 

The latest thinking on the "Gulf War syndrome," in fact, is that a syndrome as 
such does not exist. A comprehensive U.S. Department of Defense survey of 10,000 
veterans and family members found no link to biological or chemical weapons, 
environmental pollutants, hazardous chemicals, depleted uranium, oil well fires, 
vaccines, or diseases unique to the desert. Undoubtedly, at least amongst the 
veterans groups and a segment of the population, Gulf War syndrome will join 
missing in actions (MIAs) in Southeast Asia or even UFO's as grand "cover-ups" 
of the government. Yet it is the long list of potential or even suspected toxins that 
is interesting. Far more work is needed to understand the emergence of new 

Arkin 129 

technologies or the interaction of certain substances uniquely found on the 
battlefield in terms of the human and natural environmental impact. 

Though environmental "modification" has been a subject of discussion for 
many years, newer technologies may actually be increasing the attractiveness of 
use of the environment for warfare. Despite U.S. denials, enough documentation 
exists to indicate that the Iraqi-perpetrated oil conflagration and the creation of 
significant amounts of smoke had a significant impact on U.S. air operations, Iraqi 
intentions or not. Laser-guided bombs and other sensor-dependent weapons (e.g., 
television, electro-optical, and infrared) are severely constrained by atmospheric 
conditions. In the Gulf War, many laser-guided weapons were unable to acquire 
targets because of adverse weather conditions (i.e., rain and fog), and optical guided 
weapons were definitely constrained by the smoke of oil fires. The conditions were 
both natural and man-made. For instance, smoke pots were used to obscure targets 
and had an effect on target acquisition and bombing. 

In addition, night vision devices are dependent on a certain environmental 
condition. That is, it has to be dark. In the Gulf War, oil well and trench fires, 
even fires caused by routine bombing, caused havoc with night-vision devices. The 
combined effect was obscuring nearly all natural ambient light, which night-vision 
devices need for illumination. By contrast, too much light causes a sort of 
"blooming" effect. Perhaps in the face of night attacks, a future countermeasure 
would be the large scale creation of certain types of illuminations that would not 
expose friendly forces. 

As "smart" weapons become more commonplace, perhaps the countermeasures 
to smart weapons guidance systems — including modifying atmospheric 
conditions — will be an important part of a nation's defense. Thus the 
weapons/counter-weapons battle, coupled with more discriminate precision 
weapons and urban bombing constraints, as well as new concepts of information 
("systemic") warfare, could serve to make the potential for devastation or 
disablement of civilian systems, with inadvertent environmental damage, even 
worse in the future. 

It may be important to reaffirm the original intent of the ENMOD 
Convention, to strengthen the disarmament effect in the face of advances in 
military technology, as well as to more rigorously define environmental damage 
that might (or should be) applicable. Yet advances in military technology were not 

even discussed at the 1993 ENMOD Convention review conference. 

Legal Protections for Environmental Destroyers? 

A number of international agreements have been developed over the years with 
the very goal of limiting damage to the environment during war. Until the 1970s, 
treaties relating to the conduct of war focused on humans and their property. 
Provisions of the laws of war dealing with military necessity and proportionality 

130 Protection of the Environment During Armed Conflict 

related to the environment, but then attitudes began to change and environmental 
consequences began to be questioned as something other than the otherwise 
inevitable accompaniment of military action. 

Though armed conflict is always a tragedy for the environment, in the Gulf 
War, there was a perception prior to Operation Desert Storm that the venue for 
war, and the intensity of modern weapons, would mean that the war would be more 
environmentally destructive. But since global calamity did not occur, and the war's 
end was not defined, the environment was made subordinate to the political needs 
of the victorious States. 

Some would think that the environmental destruction that did occur might 
serve as a catalyst to bring the various agreements, laws, and proposals under 
review. But this has so far not been the case. There has been a lot of procedural 
wrangling, yet with the snuffing out of the last oil fire, and the shift of television's 
gaze away from the Gulf, interest in any real change also was extinguished. 

In civil society, a nation is now, in theory, to be held responsible for the 
environmental damage it causes. But we have not yet arrived at the point of any 
punishment for actions during warfare, let alone any clarity as to the illegality of 
the acts perpetrated. Over the years, a lack of enforcement against Iraqi use of 
chemical weapons and other grave breaches may have signalled to the Ba'athist 

Government that "international law" is a matter for posturing and propaganda, 

and not action. When napalm or others weapons are used experimentally or 

cynically as examples to avoid restrictions in international humanitarian law, 

similarly the message to other nations is that the secrecy surrounding them and 

their use might be proof of their worth, as well as signs of American duplicity in 

its compliance with international law. 

The destruction of Kuwait's oil resources and Iraq's electrical production were 
both done intentionally, both with precision. The juxtaposition of the two is 
merely to illustrate that one is clearly "illegal" and the other is not. The massive 
oil spills and oil fires polluted air, land, and water, threatening fisheries, ocean 
ecology, and public health. The bombing of electricity started a cascade of misery 
for the Iraqi civilian population, severely affecting irrigation, water treatment, 
sanitation, and agriculture. The boundary between "property damage" as specified 
in the law of war and natural {e.g., environmental) damage is increasingly thin. 

Most in the humanitarian and environmental community have argued that the 
scale of the oil spills and fires constitutes a breach of international law. However, 
to focus solely on scale leaves unresolved the main issue of contention between the 
military establishment and the humanitarian community, the presumption of 
military necessity. Regardless of scope, there is no evidence that the performance 
of Iraqi military forces was degraded by the loss of electricity. This is not to say 
that there was no effect, it is just that it is difficult to assert that a calculation of 
the destruction of the civilian utility can be shown to have "definite military 

Arkin 131 

advantage." Despite numerous annoyances, the oil spills and fires also did not 
create any definable military advantage for Iraq. 

None of this is to set up a counter-legal analysis. The codified law is useful to 
set the parameters that might constrain military operations to improve protections 
for the civilian population and the environment. Yet it is the political and public 
opinion constraints that are much more important in terms of cutting edge 
technologies or new situations. On close examination, the record of the Gulf War 
shows that when military leaders or Washington decision makers restricted 
destruction, they did so largely to avoid adverse public opinion, not because 
technicalities in the law were the issues of concern. 

Greater awareness of environmental "stewardship" and pollution prevention 
by soldiers and commanders has created an obvious ethos of responsibility for 
long-term effects of operations, and a receptiveness to limitations. There is no 
doubt that the very nature of modern society — urbanized, industrialized, 
increasingly dependent on electrically-driven amenities — makes it more 
vulnerable to disruptions. "A strategic center of gravity for most States beyond the 
agrarian stage is the power generation system," Colonel John A. Warden, the air 
war principal designer, wrote after Operation Desert Storm. "Without electrical 
power, production of civil and military goods, distribution of food and other 
essentials, civil and military communications, and life in general becomes difficult 
to impossible. Unless the stakes in the war are very high, most States will make 
desired concessions when their power generation system is put under sufficient 
pressure or actually destroyed." 

The Gulf War thus should portend the kind of damage we might see in the 
future. Mass destruction weapons did not kill masses, precision weapons did. The 
successful and precise destruction of intended targets had a devastating effect on 
the civilian population, one more reminiscent of bombing associated with 
old-style urban attacks and not a squeaky clean smart war. Environmental calamity 
on a global scale seems to have been avoided, but the very efficiency of harm, and 
the lingering impact of such a short conflict, should portend the potential for war's 
greater potential for destructiveness. 


*Columnist, writer and consultant specializing in modern warfare, nuclear weapons and arms control. 

1. Though the full explanation and cause of the drying of Iraq's southern marshes remains unclear, and U.S. 
interest in the subject is as much anti-Saddam as pro-environment, it is another important ecological cost of the 
Kuwaiti invasion; see CIA, "The Destruction of Iraq's Southern Marshes," IA 94-10020/NESA 94-10021/RTT 
94-10054 (Aug. 1994). 

2. On 9 January 1991, Secretary of State James Baker told Iraqi Foreign Minister Tariq Aziz in Geneva that "we 
will not allow any attempt to destroy Kuwaiti oilfields;" INA Reports Minutes of 'Aziz-Baker Meeting, 
FBIS-NES-92-009, 14 Jan. 1992 at 27. "Let me state . . . that the United States will not tolerate . . . destruction of 
Kuwait's oil fields and installations," President Bush wrote to Saddam Hussein. The letter stated that the acts would 
require the "strongest possible response" from the United States, one that would make the Iraqi leader and his country 
"pay a terrible price;" The text of the letter is contained in Sifry & Cerf, the Gulf War Reader at 178-79. See 

132 Protection of the Environment During Armed Conflict 

discussion of NSD-54 and the resulting response to the environmental damage in Arkin, Target Iraq: A 
Documentary History of an Air War (forthcoming, 1997). 

3. "A general consensus exists that there is adequate protection for natural resources and the environment in the 
law of war as now codified; what is required is a greater respect for the law of war, and an awareness of the potential 
effect particular military operations or means and methods of warfare many have on the environment;" Department 
of Defense, Report to Senate and House Appropriations Committees in response to Senate Report 102-154, 19 Jan. 
1993 at 8. 

4. International Committee of the Red Cross (ICRC), Commentary on the Additional Protocols of 8 June 1977 
to the Geneva Conventions of 12 August 1949 at 667. 

5. See Parks, Air War and the Law of War, 32 Air Force L. Rev. 202-18 (1990). The Air Force manual on the laws 
of armed conflict, written before the 1977 Additional Protocols, specifies that the selection of a dam as a target is "a 
matter of national decision at appropriate high policy levels;" Department of the Air Force, International Law — 77i* 
Conduct of Armed Conflict and Air Operations, AFP 1 10-31, 19 Nov. 1976 at 5-11. 

6. Soon after taking up his position as head of the Special Planning Group, Brig. General Glosson proposed that 
three dams — two on the Euphrates and one on the Tigris — be bombed if Iraq used chemical weapons; Atkinson, 
Crusade, the Untold Story of the Persian Gulf War (1993) at 86. 

7. U.S. Central Command (CENTCOM) Legal Lessons Learned, Joint Uniform Lessons Learned System 
QULLS) Number 31861-06100, Title: Legality of Targeting Dams and Dikes (18 Mar. 1991). 

8. Bouvier, Protection of the Natural Environment in Time of Armed Conflict, Int'l Rev. of the Red Cross, 567-578 
(Nov-Dec 1991). 

9. Arkin, supra n. 2 at ch. 13. 

10. Kuwait's four fields consisted of some 2000 wells, some 1300 of which were active and producing on 1 August 
1990. At the time of Iraq's invasion, about 850 of the 1300 producing wells (including wells in the 
Kuwaiti-administered portion of the Neutral Zone) were involved in pumping oil. Reports have varied as to the 
number of wells sabotaged, with the Kuwaiti Petroleum Company reporting in September 1991 that 749 wells were 
damaged, with a total of 610 fires. Most of wells (circa 450) were in the greater Burgan field (Maqwa, Ahmadi, and 
Burgan) south of Kuwait City; 60 were located in the Minagish, Umm Gudair, and Wafrah fields in southern Kuwait; 
and 100 were located in the Rawdatayn, Sabriya, Bahra, and Ratya oil fields in northern Kuwait. 

11. Twenty of 26 gathering stations that separate oil, gas and water recovered from underground reservoirs were 
damaged or destroyed. The upstream facilities of the oil collecting and distribution system consist of an additional 
main station and 23 substations at Wafrah. 

12. Kuwait had three refineries, at Mina Al- Ahmadi, Mina Abd Allah, and Mina ash Shuaybah. The refinery at 
Mina Al-Ahmadi was slightly damaged. The refinery at Mina Abd Allah was significantly damaged, evidently both 
from sabotage and from Coalition bombing. Mina ash Shuaybah received minor damage. A fourth refinery at Mina 
Az Zawr, owned by Saudi Arabia, was totally destroyed. 

13. Some of the flowing wells were ignited because the release of sulfur dioxide was less toxic than hydrogen sulfide 
gas emitted from the crude wells. 

14. U.S. Congress, Senate Gulf Pollution Task Force, The Environmental Aftermath of the Gulf War, at 23. 

15. Center for Naval Analysis, "A View of Desert Shield and Desert Storm as Seen From COMUSNAVCENT," 
at 5-12. 

16. Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification 
Techniques, 1977, 31 U.S.T. 333; reprinted in 16 I.L.M. 88 (1977). 

17. Protocol I Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims 
of International Armed Conflicts (1977), reprinted in 16 I.L.M. 1391 (1977). 

18. U.S. Department of Defense, Final Report to Congress, Conduct of the Persian Gulf war, Apr. 1992, at 

19. "During that treaty's negotiation, there was general agreement that one of its criteria for determining whether 
a violation had taken place ("long-term" ) was measured in decades. It is not clear the damage Iraq caused, while severe 
in a layman's sense of the term, would meet the technical-legal use of that term in Protocol I. The prohibition on 
damage to the environment contained in Protocol I were not intended to prohibit battlefield damage caused by 
conventional operations and, in all likelihood, would not apply to Iraq's actions in the Persian Gulf War;" Final 
Report to Congress, supra n. 18 at 625. 

20. Environmental Protection Agency Interagency Task Force, Report to the Congress, United States Gulf 
Environmental Technical Assistance, From January 27-July 31, 1991, Under PL 102-27, Sec. 309, at 4. 

21. Most of the discussion here comes from Chapter 9: Electrical Surgery, in Arkin, supra n. 2; Arkin, Power 
Failure: Destruction of Electricity in the Gulf War (forthcoming). 

22. Air Force theorists never considered the impact of their destruction on water distribution, purification, and 
sewage; Department of the U.S. Air Force, Gulf War Air Power Survey [hereinafter GWAPS], Vol. I, Part I, at 117. 
One former 'Checkmate' officer writes that after CNN reported that electricity and water were off in the Rasheed 

Arkin 133 

Hotel, planners were surprised. Ironically, it seems like this had been overlooked by the air campaign planners. This 
author vividly recalls polling the 'Checkmate' staff the first night of war and discovering that no one had realized that 
with the loss of electricity the water supply would also fail. Later discussions with personnel who were in the 'Black 
Hole' in Riyadh at that moment indicated they were also caught by surprise. 

Kuehl, A irpower vs. Electricity: Electric Power as a Target For Strategic Air Operations, 1 8 J. of Strat. Stud. 265 (Mar. 
1995) at n. 57. 

23. Report to the U.N. Secretary-General on humanitarian needs in Kuwait and Iraq in the immediate post-crisis 
environment by a mission to the area led by Mr. Martti Ahtisaari, Under Secretary-General for Administration and 
Management, S/22366 (20 Mar. 1991). 

24. Physicians for Human Rights, Press Statement: Iraq Mission April 3-10, 1991, at 3 (15 Apr. 1991). 

25. In particular, see Harvard Study Team, Harvard Study Team Report: Public Health in Iraq After the Gulf War, 
May 1991; International Study Team, Health and Welfare in Iraq After the Gulf Crisis: An In-Depth Assessment, Oct. 
1991; Final Report to the Congress, supra n. 18; Gwaps Summary Report, and Vols. I-V; and Atkinson, supra n. 6 
at 30-31 & 37-38. 

A year after the war, the internal debate appeared in the news media. See, for example, Defeat of Iraq Sparks Debate 
on Which Air Role Was Crucial, 27 Aviation Wk& Space Tech. 60-65, Jan. 1992; Gordon, Pentagon Study Cites Problems 
With Gulf Effort, The New York Times, 23 Feb. 1992, at Al. 

Two reports written by Air Force officers examine electrical targeting in a critical way: Griffith, Jr., Attacking 
Electrical Power, School of Advanced Airpower Studies (Air University), Thesis, 1993 (later to appear in Essays on 
Strategy XI, (Petrie ed. 1994) at 183-223); and Kuehl, HQ USAF, Directorate of Plans, Strategic Planning Division, 
Airpower vs. Electricity: Electric Power as a Target for Strategic Air Operations, (1993), later published supra n. 22. 

26. Final Report to Congress, supra n. 18 at 150. See also id. at 125, 127 & 612 for further discussion of the 
justification for bombing electricity. 

27. USCENTCOM News Briefing, General Schwarzkopf and Brig. General Glosson, Riyadh, Saudi Arabia, 30 
Jan. 1991. See also DOD News Briefing, Lt. General Kelly, 11 Feb. 1991, 4:05 PM. 

28. Supra n. 25 GWAPS, Vol. II, Part II, at 342-43. 

29. U.S. Department of the Navy, Annotated Supplement to The Commander's Handbook on The Law of Naval 
Operations, NWP 9 (Rev. A)/FMFM 1-10 (1989), para. 8.1.2. 

30. Supra n. 4 at 632-33. 

31. Aldrich, New Life for the Laws of War, 75 A.J.I.L. 780 (1981): "Proposals to add other items to the list [of 
prohibited objects of attack under Article 54] such as communication systems or food distribution and fuel reservoirs 
were rejected by the conference, as such items are often, if not always, important military objectives." 

32. Aldrich, Progressive Development of the Laws of War: A Reply to Criticisms of the 1977 Geneva Protocol I, 26 Va. 
J. Int'l. L. 706 (1986). See also Department of the Air Force, International Law — The Conduct of Armed Conflict and Air 
Operations, AFP 110-31 at 5-16 (19 Nov. 1976). 

33. Kuehl, supra n. 22, at 258. 

34. The language is taken from the Statement by Robert B. Rosenstock, United States Representative to the Sixth 
Committee of the 46th Session of the United Nations General Assembly, in the Sixth Committee, on Item 140, 
Exploitation of the Environment as a Weapon, Oct. 22, 1991 (Press Release U.S.U.N. 65-(91)). 

35. Drones, Iraqi surface-to-air missiles (SAMs) falling back to earth, cluster bomb casings, jettisoned ordnance 
and fuel tanks, all contributed remnants on the battlefield and to urban collateral damage. It was debris that had 
greater visibility if for no other reason than that intentional damage from attacks was otherwise so circumscribed. 

36. In this paper, ground- and air-delivered submunitions, as well as hand-sown ones (mines) are collectively 
referred to as submunitions, particularly since the subject mostly relates to their effects on the civilian population. 
This is in agreement with U.S. military doctrine which defines a scatterable mine as "a mine laid without regard to 
classical pattern and which is designed to be delivered by aircraft, artillery, missile, ground dispenser, or by hand;" 
Joint Chiefs of Staff (JCS), "Joint Doctrine for Barriers, Obstacles and Mine Warfare," Joint Pub 3-15, at GL-8 (30 
June 1993). 

37. Combined with another 13.6 million ground-delivered submunitions, the total number of individual cluster 
bomb-related explosives delivered on Kuwait and Iraq was some 34 million. The overall number is calculated on the 
basis of some 100,000 artillery projectiles, 10,000 Multiple Launch Rocket System (MLRS) rockets, and 60,000 air 
delivered cluster bombs. The number of submunitions carried by each weapon is 72 per dual-purpose improved 
conventional munition (DPICM) 155mm projectile, 644 per MLRS rocket, 247 per Mk20 Rockeye, 220 per CBU-52, 
650 per CBU-58, 717 per CBU-59, 650 per CBU-71, 60 per CBU-78 (45 anti-tank and 15 anti-personnel mines), 202 
per CBU-87, and 94 per CBU-89 (72 anti-tank and 22 anti-personnel mines). 

38. Over ten types of submunitions were used by Coalition forces in the Gulf War — 155mm and 203mm artillery 
projectiles, MLRS rockets, and aerial-delivered cluster bombs (Rockeyes, and CBU-52, -58, -7 1, -87, -89 "cluster bomb 
units" as well as British and French cluster bombs). 

39. Supra n. 25, Gwaps, Vol. II, Part I, at 261. See also Gwaps, Vol. IV, Part I, at 222. 

134 Protection of the Environment During Armed Conflict 

40. US military officials estimate that three to five percent of their artillery projectiles and bombs failed to explode, 
although soft sand may have increased the rate up to one-third in some areas. The GAO found that as many as 23 
percent of MLRS rocket submunitions failed to explode during acceptance testing; US Congress, General Accounting 
Office (GAO), "Operation Desert Storm: Casualties Caused by Improper Handling of Unexploded U.S. 
Submunitions," GAO/NSIAD-93-212, at 4 (Aug. 1993). 

One U.S. Army expert estimates 15 percent of submunitions did not detonate — "Sometimes you get 50 percent 
duttef Brady, Kuwaitis dying from old menace: unexploded bombs, Fort Worth Star-Telegram, 12 Jan. 1992 at 1. According 
to another report on unexploded ordnance, "Reports from Kuwait have said that around one third of submunitions 
failed to explode due to landing in soft sand;" Nash, RO in Kuwait: The Big Clean-Up, Mil. Tech., at 59 (July 1991). 
One U.S. expert was quoted as saying that "at least 600 bombs, rockets and artillery shells dropped or fired every day 
of the war will have failed to explode and thus constitute a continuing hazard somewhere in the war theater;" Ringle, 
After the Battles, Defusing the Debris, The Washington Post, 1 Mar. 1991 at Bl. See also Hedges, With a Bang! Bang! 
Bang! War Cleanup Goes On, The New York Times, 150ct. 1992at A12; Atkinson, Doing a Bang- Up Job: With Cautious 
Gusto, Troops Explode Iraq's Munitions, The Washington Post, 26 Mar. 1991 at A9. 

41. GAO, "Operation Desert Storm: Casualties Caused by Improper Handling of Unexploded US Submunitions," 
op.cit., at 4. 

42. Id. The GAO investigation solely related to the Army's experience with its own M42, M46 and M77 artillery 
and rocket-delivered submunitions. According to EOD Alert, Marine Corps Gazette, (Jan. 1994) at 9, 30 U.S. soldier 
deaths and 104 injuries were caused by unexploded ordnance. 

43. Jehl, Pool Report with the 1st Armored Division, (released by the Defense Department), Los Angeles Times, 25 
Feb. 1991. 

44. "Large quantities of cluster bombs were never used after the start of the ground war because of the rapid 
advance of allied forces and the fear that they would encounter undetonated bomblets;" U.S. Congress, General 
Accounting Office (GAO), "Limitations on the Role and Performance of B-52 Bombers in Conventional Conflicts," 

45. GAO, "Operation Desert Storm: Casualties Caused . . .," n. 40 at 9. As The Washington Post observed on 3 
March, "units of the Army's 1st Cavalry Division that had suffered no combat casualties in their unopposed drive 
through southern Iraq have seen several of their soldiers killed or wounded by bombs or mines in the area they are 
holding;" Branigan, Gruesome Examples of Horrors of War Abound in Iraqi Desert, The Washington Post, 3 Mar. 1991 
at A34. 

46. Sloyan, US Bomblets Killed 14 Americans in Gulf War, Newsday, 19 Sept. 1991 at 4. See also Growing Death Toll 
in EOD Operations, Jane's Def. Weekly, 20 June 1992 at 1061 ; Brady, Kuwaitis dying from old menace: unexploded bombs, 
Fort Worth Star-Telegram, 12 Jan. 1992 at 1. 

47. The request was made by Senator Chris Dodd (D-Conn.) after reservists from a Connecticut army unit were 
injured by submunitions. See Little Bombs, Big Questions, (Editorial), Hartford Courant, 5 Jan. 1992 at C2; Wagner, 
Army Completes Probe of Desert Storm Deaths, Hartford Courant, 3 Dec. 1991 at C9. 

48. DU is also used as counterweight components of aircraft elevators, landing gear, rotor blades and radar 
antennae; ballast in satellites, missiles and other craft; armor plate, and in small quantities, as a catalyst in some mines. 

49. U.S. Department of the Air Force, Table, "A-10 Operation Desert Storm Munitions Expended," n.d. (1991). 

50. U.S. Army Environmental Policy Institute, "Health and Environmental Consequences of Depleted Uranium 
use by the U.S. Army," Summary Report to Congress, at 2 (June 1994). 

51. U.S. Congress, General Accounting Office (GAO), "Operation Desert Storm: Army Not Adequately Prepared 
to Deal With Depleted Uranium Contamination," Jan. 1993, GAO/NSIAD-93-90. 

52. See Arkin, The Desert Glows— With Propaganda, Bull, of Atomic Sci. (May 1993). 

53. U.S. Army Environmental Policy Institute, Summary Report, supra n. 50 at 4-56. 

54. Kane, Night Vision Goggles and Desert Storm, Marine Corps Gazette, at 42 (Feb. 1992). 

55. The military clearly recognizes the constraints of operating smart weapons that are unable to counter natural 
and man-made atmospheric effects. In the future, new weapons and sensors such as the inertially aided munition 
(IAMX the sensor fuzed weapon (SFW), synthetic aperture radar (SAR), millimeter-wave (MMW) radar, gas laser 
radar (LADAR), and brilliant anti-tank (BAT) submunitions seek largely to neutralize the effects of bad weather and 
limited visibility. 

56. Supra n. 16. 

57. Before the ENMOD, and leading up to the negotiations, the U.S. Government (July 1972) renounced the use 
of climate modification techniques for hostile purposes, even if development was proved to be feasible (and desirable) 
in the future. The original Congressional Resolution (1973) calling for an international agreement referred to 
prohibition of activity "as a weapon of war." The bilateral talks agreed to by Presidents Brezhnev and Nixon in July 
1974 took on an even broader mandate, namely "to overcome the dangers of the use of environmental modification 
techniques for military purposes." The resulting convention narrowed the original scope considerably. 

Arkin 135 

58. Adam Roberts speculates that "from the international community's failure to react to the original attack on 
Iran in 1980, from its failure to do anything much about Iraq's use of gas, and from its actively continuing trade even 
in weapons, Saddam Hussein may well have learned the lesson that he could ignore international institutions and 
law, including the laws of war, with impunity;" Roberts, The Laws of War in the 1990-91 Gulf Conflict, Int'l Sec. at 
140-141 (Winter 1993/94). 

59. Some of the environmental concern seems contrived, such as the Clinton Administration's creation of a Deputy 
Under Secretary of Defense for Environmental Security in May 1 993. Similarly, the Pentagon's 1 994 draft "non-lethal" 
weapons policy defines non-lethals as "discriminate weapons that are explicitly designed and employed so as to 
incapacitate personnel or materiel, while minimizing fatalities and undesired damage to property and the environment" 
without defining why such limitations are desirable or required. See Office of the Assistant Secretary of Defense 
(Special Operations/Low-Intensity Conflict), Memorandum, Subject: Draft Non-Lethal Weapons Policy, 21 July 1994 
(emphasis added). 

60. Warden, Employing Air Power in the Twenty-first Century, in The Future of Air Power: in the Aftermath of 
the Gulf War, (Shultz & Pfaltzgraff eds. July 1992) at 64. 

Chapter XI 

Comment: The Environmental Threat of 
Military Operations 

Dr. Arthur G. Gaines, Jr.* 

We like to think of nature's beauties, to admire her outward appearance of peacefulness, to 
set her up as an example for human emulation. Yet under her seeming calm there is going on 
everywhere — in every pool, in every meadow, in every forest — murder, pillage, starvation, 
and suffering. 

A.C. Chandler 1 


This paper attempts to introduce a natural, and Earth sciences perspective 
into a deliberation otherwise dominated by legal scholars. This paper 
reflects the personal, and perhaps unusual, views of an academician trained in the 
sciences but conducting research at a marine policy center for the past nine years. 
It is motivated by the observation that the prevailing tenor of this discussion of 
environmental aspects of warfare seems disproportionately influenced by the 
emotional perception of the environment prevailing in these times — influenced 
either by accepting that viewpoint or, especially, by reacting to it. The first part of 
the paper outlines a view or construct of the extent and the manner in which the 
concept of environmental protection can reasonably be applied to military 
operations and warfare. The second part addresses two interrelated topics, both of 
which should benefit from tempering by a scientific perspective: 

a. The environmental impacts of warfare relative to those of other human activities, 
and as compared to the scale of natural disasters; and 

b. The relevance of these comparisons to the concept of "war crimes against the 

The conclusions to which I lead in this admittedly rhetorical examination are 
the following: In prosecuting humanitarian goals for peace or the alleviation of 
human suffering, it may be best not to look too narrowly to the natural 
environment for the paradigms. And, in refining thoughts on "crimes against the 

Gaines 137 

environment," an objective examination of the natural world may not provide the 
sharp contrasts we seek. 

Environmental awareness and sensitivity as a political ideology is growing 
worldwide, with the emergence and increasing power of the "green" movement 
and related vanguard activities. An "environmental ethic" has made inroads into 
civil law, international law, and, as reflected in the title of this conference, into the 
calculus of warfare. Most people agree there are numerous benefits to this trend, 
despite short-term frustrations. 

Some of us spanning the science/policy fields would like to see the 
environmental movement incorporate better scientific information to ensure that 
policy and natural systems are not at odds. An environmental movement based on 
misconceptions has little advantage over one that ignores the environment 
altogether. Unfortunately, numerous inconsistencies and misconceptions seem to 
abound despite the general public impression that the environmental movement 
is firmly based in science. We often lose track of the fact that suffering, destruction, 
and risk are not limited to the realm of humankind. As indicated in the opening 
quotation from Professor Chandler's book on parasitology, nature is far from the 
model of peacefulness that many of us would like to believe. 

Military Impacts on the Environment 

Military activities and their impacts can range over a wide scale, from 
comparatively benign impacts associated with the peacetime domestic or 
bureaucratic military setting, through the catastrophe of total war. This broad 
spectrum can be divided into two categories — the part associated with military 
preparedness, and the part associated with armed conflict (Figure 1). The 
demarcation criterion is the element of hostility: anticipated or actual exchange 
of hostile fire, loss of life, or imminent invasion. 

Military Preparedness 

Military preparedness includes all activities necessary to plan, staff, arm, 
maintain, and deploy national military forces, in the absence of actual armed 
conflict, during phases of both overall military expansion or overall military 
contraction. Industrial support activities related to military preparedness (Figure 
1, A) as illustrated during wartime and the Cold War years, can embrace a large 
part of a nation's commercial and industrial sector. These activities are conducted 
largely by civilians on contract to the military establishment, largely on private 
rather than government property, and often near population centers. Such 
activities include production, testing, storage, and transportation of war materiel; 
research and development; and other activities involved in industrial support of 
the military. These activities involve working with perhaps the most toxic, 
infectious, explosive, and radioactive materials used in modern society, and often 

1 38 Protection of the Environment During Armed Conflict 

Figure 1 
Environmental Impact of the Military 

Military Preparedness 





Armed Conflict 







in very large quantities. Nevertheless, to a large extent, if not in its entirety, this 
portion of military preparedness ought to be fully subject to the entire range of 
national environmental impact criteria. It should be possible to consider issues of 
environmental impact in the full domestic sense, especially including materials 
management — their selection, use, storage, recycling, inactivation, and ultimate 
long-term disposition. And it should be possible to anticipate and plan for 
incidents of human error and accidents that inevitably will occur in the course of 
all human endeavours. 

Military operations associated with military preparedness (Figure 1, B) 
involve activities related to the training, arming, maintenance, deployment, 
and inactivation of forces. These activities are conducted largely by military 
personnel on military bases and on military ships and aircraft, often in remote 
sites. Such activities involve assembling, storing, testing, and distributing war 
material; training and maintaining military forces in readiness; deploying 
forces and war material to potential trouble spots; patrolling, peacekeeping, 
and other military operations not conducted in anticipation of an imminent 
exchange of fire in the course of confrontation; and phasing down military 
preparedness. A new term-of-art, "Military Operations Other Than War" 
(MOOTW) may be the appropriate designation for these activities. 

Military operations in this sense of the term ought also to be sensitive to and 
compliant with the concept of environmental impact and relevant environmental 
laws. Unfortunately, there have been instances of environmental damage 
associated with the operation of military bases. A prominent one involves the 
Massachusetts Military Reservation (Otis Air Force Base, etc.) on Cape Cod, where 
groundwater pollution by sewage-derived nutrients and by organic solvents has 

Gaines 139 

been a major issue in recent years. Part of the problem stems from an 
understandable, though regrettable, ignorance of hydrogeology in the siting of 
wastewater disposal sites in 1936. As a result, downgradient wells, including a 
municipal well operated by the Town of Falmouth, were contaminated and had 
to be closed. Perhaps more significant, this pollution incidence has served to 
project an aura of "contamination" over the entire area, whose economy depends 
on tourism, second homes, and retirement homes. The problem began decades 
ago, before environmental laws were in place; the same problem, mostly on a 
smaller scale, is widespread around the world. The groundwater plume in question 
is currently the focus of a Superfund clean-up effort. Equally or more important 
is the need to address the fundamental issue of disposal of waste materials, to avoid 
propagating this problem into the future. 

The second problem at the Massachusetts Military Reservation involving 
contamination of groundwater appears to stem from a failure to establish a sound 
operational, base- wide procedure for use and disposal of organic solvent wastes. It 
appears that for several years individual managers used personal discretion in the 
disposal of these materials, which included dumping them into ad hoc landfills 
on the base. It is important for military bases (as well as civilian operations) to 
plan in an environmentally sound manner and to account quantitatively for the 
entire cycle of hazardous materials use, from their acquisition through their 
disposal. This is an achievable goal throughout the course of military 
preparedness activities. 

Armed Conflict 

In my scheme (Figure 1), armed conflict introduces the elements of 
significant and imminent personal danger or hostile destruction of warmaking 
assets into the conduct of military activities. A spectrum of intensity of conflict 
leading to possible environmental consequences can be defined extending from 
limited armed conflict to strategic-scale conflict (or full-scale nuclear 
confrontation). For the ultimate circumstances of global-scale, total war, 
including massive deployment of nuclear weapons, an environmental 
cataclysm could be expected. In a conflict of this scale, where the survival of 
nations and of mankind itself could be at stake, a discussion of environmental 
impact almost becomes meaningless. Recognition of the likely disaster of 
nuclear confrontation presumably motivated the nuclear arms limitation 
initiatives of the 1980's. Based on the behavior of the superpowers over the past 
several years, it appears that rational minds have concluded that strategic-scale 
conflict, with environmental and human consequences spelled out by the 
"nuclear winter" scenario, is unacceptable — it is not an option. For perspective, 
nevertheless, it should be mentioned that even the nightmare of the nuclear 
winter scenario has natural disaster analogs, such as collision of the planet with 

140 Protection of the Environment During Armed Conflict 

comets, asteroids, or other large celestial bodies, which would produce their own 
kind of "winter." 

Even under conditions involving limited armed conflict (Figure 1, C), it may 
not be possible to conduct military activities in a way that takes environmental 
impact fully into account. Most military leaders would probably say they would 
always put the lives and safety of their troops before environmental 
considerations. In armed conflict, it is likely that numerous commanding 
officers would need to make individual, and perhaps spontaneous, assessments 
of when the lives or safety of their forces are in jeopardy, and of the 
environmental assets at risk. The need to make such judgments during military 
operations, though complicated by greater urgency and stress, nonetheless 
represents only a special case of the larger societal need to balance environmental 
protection against the perceived dangers and benefits of not protecting the 
environment. This involves a subjective (and sometimes unconscious) assessment 
that is worth considering in a broader context. 

Bias in the Perception of Environmental Impact 

There is a tendency to ignore the environmental impact of human activities that 
are widely considered "good" or "necessary" for society, and a tendency to over-react 
to activities that are seen to disproportionally benefit a narrow, identifiable, interest 
group. Two examples — farming and road construction — serve to illustrate the 
inconsistency in the societal perception of environmental impact. 

Farming activities to sustain the world's human population involve control of 
natural plant and animal communities on a global scale. In the United States 1.5 
million square miles (39% of the nation's area) are devoted to farms (Table 1). In 
about 680,000 square miles used for plant crops, the naturally occurring first 
trophic level (primary producers; i.e., organisms capable of photosynthesis) has 
been destroyed, and one of a small number of crop plant species substituted in its 
place — corn, wheat, cotton, etc. This process involves massive destruction of 
natural systems, although it is not necessarily irreversible. U.S. croplands are 
irrigated (77,000 square miles), fertilized with chemicals, poisoned with 
herbicides and other pesticides, and mechanically plowed, all of which go far 
beyond comparable natural processes acting on the land. 

At the second trophic level ("herbivores"), introduced species such as cattle, 
pigs, and sheep number about 165 million on U.S. farms; and chickens outnumber 
people by more than 50 million. These animal species are often raised at densities 
far exceeding the natural capacity to sustain them. Biological diversity is generally 
ignored in this context, although loss of topsoil and contamination of natural 
surface-and groundwater are openly discussed as problems. These are problems 
that are relevant mostly to the continued human practice of agriculture. In any 
case, the concern over environmental impact is in no way proportional to the scale 

Gaines 141 

Table 1. Selected U.S. Agriculture Statistics— 1992 


I Use 

Use Crop 

Area (mi ) 

Land in farms 


















Irrigated land 













Source: U.S. Dept. of Agriculture, 1992 Census of Agriculture, Volume 1 
Geographic Area Series. 

of the matter, presumably because we all need farms. (Ironically, when crops are 
burned, such as during warfare, the environmental impact could be seen as positive 
if the effect is to return the land to natural systems.) Overall, the impact on the 
natural biological system is devastating — it is intended to be — but the outcome is 
the greatest agricultural productivity on Earth. 

Another widespread activity essential for our quality of life is road 
construction, which, like farming, does not occasion the environmental scrutiny 
and outcry that it might if it were considered on a purely objective basis. In the 
United States, there are about 1.4 million miles of paved roads. These roads 
entirely obliterate the natural plant and animal communities in an area of about 
14,000 square miles. Most of this road surface is paved with a hydrocarbon 
material known as asphalt. The amount of asphalt used to pave the nation's roads 
is about 0.66 cubic miles, or about 71,000 times the volume of hydrocarbons 
spilled during the 1989 tanker accident in Prince William Sound. It is believed 
that asphalt, a bituminous residue of petroleum, has a low chemical toxicity; but 
given the volume of material involved, the lack of fanfare over its widespread, 
intentional use is noteworthy — particularly in view of the public reaction to U.S. 
tanker spills. 

142 Protection of the Environment During Armed Conflict 

The Scale of Natural Disasters 

This discussion of natural disasters includes only those for which human 
fatalities are incidental — not, for example, natural diseases that specifically attack 
the human organism. Most natural disasters result from geologic hazards, such 
as earthquakes, volcanoes, landslides, and floods. Such natural events can result 
in very large numbers of human casualties. For example, according to the 
American Institute of Professional Geologists, human death resulting from the 
Tangshan (China) earthquake in 1976, estimated at 242,000, was about as costly 
in human lives as total U.S. battle deaths during World War II. Deaths from a 
single volcanic eruption in Colombia in 1985 amounted to about the same number 
as the taking of lives by murder in the United States in 1990 — about 20,000. Floods 
of the Yellow River in 1887 and the Yangtze River in 1931 resulted in estimated 
deaths of up to 6,000,000 and 3,700,000, respectively, among peoples residing on 
the flood plains of those Chinese rivers. 

Data on the occurrence of natural events resulting in loss of human life are no 


doubt incomplete. Famighetti provides one window into the frequency of natural 
disasters, as summarized in Table 2. According to this source, in recorded history 
(viz., since 526 A.D.), 17 natural geological events (mostly earthquakes and floods 
or tsunamis) have each resulted in over 100,000 deaths. At least an additional 52 
events caused over 10,000 human deaths, and about 75 more resulted in an excess 
of 1,000 deaths, earthquakes being the most common cause of disasters in this 
category. Overall, according to this source, 330 spectacular natural events have 
caused over 12 million human fatalities since 526 A.D. 

Table 2. 

Selected Natural Disasters Invoh 
Destruction of Social Ini 

ring Loss ( 

>f Human 


Life and 

Type of Natural 



Number of Events with Deaths 
> 100,000 > 10,000 > 1,000 >100 

U.S. tornadoes 
(since 1925) 







(since A.D. 79) 







(since 1888) 







(since 1228) 







(since 526) 









12,548,500 8 





Source: Summarizec 

from Famighetti, the World Almanac and Book of Facts 568- 


Gaines 143 

The above discussion applies to geological hazards resulting from "process." 
The American Institute of Professional Geologists (AIPG) also includes as 
geological hazards those resulting from natural "materials." Included in this 
category are toxic and radioactive materials (solids and gasses) such as asbestos 
and radon, as well as swelling soils, reactive aggregates, and acid drainage. These 
hazards are generally less spectacular and their impact distributed over longer 
time, but associated human deaths and economic costs can be high. For some of 
these hazardous materials, particularly asbestos and radon, widespread 
misconceptions abound. AIPG has observed that: 

"While some segments of the populace suffer needless fear and unwarranted financial 
loss, others are oblivious to real dangers. Massive regulatory actions that are not based 
upon solid science may be some of the most expensive blunders of this century." 

A synopsis of economic costs of geologic hazards in the United States (Table 3) 
suggests a figure in the tens of billions of dollars annually. These estimates 
probably represent a significant fraction of worldwide costs. 

Table 4 provides a sense of the relative destructiveness of earthquakes as 
compared with explosives. The comparison suffers from at least two deficiencies: 
the energy density of explosives is generally greater than for earthquakes, making 

Table 3. Economic Costs of Geologic Hazards in the United States 

Geologic Hazard 

Cost (1990 dollars) 

Hazards from materials 

Swelling soils 

$6 to 1 1 billion annually. 

Reactive aggregates 

No estimate 

Acid drainage 

$365 million annually to control; $13 to 54 billion cumulative to repair. 


$12 to 75 billion cumulative for remediation of rental and commercial 
buildings; total well above $100 billion including litigation and 


$100 billion ultimately to bring levels to EPA recommended levels 
(estimate based on 1/3 of American homes at $2,500 each, plus cost for 
energy and public buildings.) 

Hazards from process 


$230 million annually in decade prior to 1989; over $6 billion in 19889. 


$4 billion in 1980; several million annually in aircraft damage. 


$0.5 million to $2 billion annually. 


At least $125 million annually for human-caused subsidence. 


$3 to 4 billion annually. 

Storm suge/coastal 

$700 million annually in coastal erosion; over $40 billion in hurricanes 
and storm surge from 1989-1993. 

Source: American Institute of Professional Geologists. 

144 Protection of the Environment During Armed Conflict 

Table 4. Energy Equivalents of Earthquakes and Explosives 


TNT Energy 






Earthquake Effects 




< 6.3 kt 

damage to masonry; 

Boston, MA 1755 

difficult to stand 

Whittier, CA 1987 
Sierra Madre, CA 

Usually few 


< 100 kt 

panic; walls fall 

Armenia 1988 



< 6.2 Mt 

wholesale destruction 

Italy 1908 
Italy 1915 
China 1920 
Iran 1978 







total damage; waves 

Japan 1923 


seen on ground surface 

China 1927 
China 1976 
Mexico 1985 




Source: America] 

a Institute of Professional Geologists 

for greater destructiveness near the detonation site; and the chain of events actually 
responsible for human fatalities — e.g., fires, building collapse, flooding, or 
landslides — are different for the two events. Nevertheless, the Table makes the 
point that the energy associated with large earthquakes is roughly comparable to 
that of the largest nuclear weapons. 

The 1945-vintage fission bomb had an energy equivalent of about a Richter 6 
earthquake. The "Ivy King" fission test weapon of the 1950s was energetically 
equivalent to a Richter 6.5 earthquake (viz., about 500 kt). The largest nuclear 
device ever tested was a Soviet fission-fusion device of an estimated 50 Mt yield, 
which in earthquake terms is about Richter 8.5. The largest nuclear weapon 
designed (but not tested), also by the Soviets, was a fission-fusion-fission device 
that may have had a yield of 150 Mt — still within the energy equivalency of a 
Richter 8-9 earthquake. 

Table 4 suffers from the further inadequacy that maximum fatalities resulting 
from the detonation of a large weapon could easily involve many millions of people 
if causing human fatality were the objective in target selection. 

International recognition of the scale of natural disasters and related human 
suffering led to the formation of a special United Nations program addressing this 
topic. The International Decade for Natural Disaster Relief convened its first 
World Conference on Natural Disaster Reduction at Yokohama, Japan, from May 
23-27, 1994. 

Natural Disasters in Earth's History 

The recording of severe natural events not involving human death or suffering 
has probably been much less complete; and, of course, for the period before 

Gaines 145 

humans occupied the Earth (which comprises all but a few million years of the 
Earth's 5 billion year history), only indirect records exist. For the historical 
geologist, interpretation of these records is of major interest: conspicuous 
discontinuities in the geological record provide a basis for organizing and dating 
the history of the Earth. These discontinuities for the most part mark severe 
natural events or changes that, had humans been present, could likely have resulted 
in death, suffering, and property loss. In the words of Georges Cuvier, the great 
French geologist of the 19th Century, "Life on Earth has been frequently 


interrupted by frightful events." 

The following distinctions, drawn by the historical geologist Richard H. 
Benson, add a useful perspective to this discussion of environmental impact: 

Crisis — an event that occurs in the history of a system, when stress is sufficient to cause 
the imminent alteration of the system's principal structures, but, through absorption of 
this stress into its subsystems, the system survives. Natural crises occur often. 

Catastrophe — an event that occurs in the history of a system, when stress is sufficient 
to cause the imminent alteration of the system's principal structures, and the 
subsystems fail to absorb all of the stress but survive, although the system fails. In 
such cases, a new and modified system is then formed to take the place of the failed 
system. Natural catastrophes occur less often. 

Cataclysm — an event that occurs in the history of a system, when stress is sufficient 
to cause the imminent alteration of the system's principal structures, and both the 
system and its subsystems fail. Cataclysms rarely occur on a grand scale. 

In these definitions a system can be a biological, social, or ecosystem, or it can 
be any organization of interacting elements, including elements that are 
themselves smaller systems. 

Mass Mortalities in the Sea 

Another view of natural disasters is provided by Brongersma-Sanders in her 
paper on mass mortalities in the sea attributable to natural causes. Any of these 
natural events (summarized in Table 5) could provoke a major outcry if identified 
instead as an impact of human activities. 

Synopsis and Conclusions 

This commentary on the environmental threat of military operations is intended 
to supplement a legal discussion of that topic. It suggests that for a large portion of 
military operations, such as those involving military preparedness, the concept of 
environmental protection is reasonably applicable. In the case of limited armed 
conflict, environmental considerations are more difficult to incorporate; and for 

146 Protection of the Environment During Armed Conflict 

Table 5. Causes of Recent Mass Mortality of Marine Life 

Source of Mortality 



Mortality of, e.g., fish from: burial/suffocation by ash (Mt. Katmai, 
Alaska, 1912; Krakatoa, 1883) and lava (Mauna Loa, 1859, 1919, 1950); 
shock of eruption; poisonous gases. 

Tectonic earth- and 

Fish kill from shock of quake (Alaska, 1899; Massachusetts, 1755; 
Valparaiso, 1922); uplift of sea floor exposing invertebrates (Valparaiso, 
1822, 1906). 

Change in salinity 

Fish mortality from increased salinity (Laguna Madre, about every 10 
years); freshwater fishes swept into hypersaline sea (Dead Sea, Israel, 
1891, 1938). 

Temperature change 

Kills of marine life (fish, crustaceans) from cold winters (Baltic Sea, 
1929; North Sea, 1929, 1946; Bermuda, 1901; New England continental 
shelf [near Gulf Stream] 1881; Greenland, 1899. 

Noxious waterblooms 

Red tide bloom production of toxins killing fish, shellfish, and sea birds 
(British Columbia, 1936, 1951; Gulf of California, 1937; Peru, recurrent; 
Chile, 1895, 1916, 1932, 1950). 

Lack of 

oxygen/presence of 
H 2 

Sea of Azov, Norwegian fjords. 

Fatal spawning runs 

Iceland, annual kill of capelin. 


Alaska sea herring stranding on Prince of Wales Island (e.g., 1914). 

Severe storms 

Storm wave kill of 6,000-9,000 ducks and geese (California, 1952); 
fishkill on Scilly Islands, 1953; Black Sea mass mortality of plants, 
mollusks, crustaceans in 1935. 


Fish mortality (mesopelagic species) in California (1952) following 
intense upwelling event. 


Enormous quantities of dead fishes sited in coastal locations and in the 
open sea for which no explanation is at hand. 

[ Source: Brongersma-Sanders, Mass Mortality at Sea. 

strategic-scale conflict, involving nuclear exchange, environmental considerations 
are most meaningful, perhaps, on a scale appropriate to historical geology. 

This commentary shows that the scale of human suffering, property 
destruction, and economic loss associated with natural disasters is large, and in 
some ways comparable to the scale of limited armed conflict. Bias inherent to our 
society tends to downplay the significance of impacts of activities we need, such 
as farming and road building, and ignores major naturally occurring disasters 
while over-reacting to those that can be attributed to certain human activities, such 
as industrial or military activities. These generalizations have an important 
practical bearing on such concepts as "environmental threat" and "crimes against 
the environment," suggesting that laws may need to address intent rather than 
environmental impact. 

Gaines 147 

*Research Specialist at the Maine Policy Center, Woods Hole Oceanographic Institute, Woods Hole, 

1. Chandler & Read, Introduction to Parasitology 1 (1962). 

2. The exact definition of MOOTW is evolving. Some proposed uses of the term include instances involving armed 

3. LeBlanc, Sewage Plume in a Sand and Gravel Aquifer, Cape Cod, Massachusetts, U.S. Geological Survey 
Water-Supply Paper 218; Garabedian and LeBlanc, Overview of Contaminant Hydrology, Geochemistry and Microbiobgy 
at the Cape Cod Toxic Waste Research Site, U.S. Survey Water-Resources Investigations Report 88-4220. 

4. Bobertz, Transferring the Blame, 13 Envt'l F. 22 (19%). 

5. American Institute of Professional Geologists [hereinafter AIPG], The Citizen's Guide to Geologic Hazards 

6. Id. at 2. 

7. Famighetti, the World Almanac and Book of Facts 568-572 (1995). 

8. AIPG supra n. 5 at 2. 

9. This includes fatalities of 900,000 for the 1887 Chinese flood; independent estimates place fatalities as high as 
6,000,000 for that disaster, possibly raising this total to 17,648,500. 

10. AIPGsn/>ran. 5 at 2. 

11. Modified from AIPG supra n. 5 at 3. See original reference for data sources. 

12. AIPG supra, n. 5 at 39 and 41. 

13. As quoted in Ager, The New Catastrophism: the Importance of the Rare Event in Geological History 4 

14. Benson, Perfection, Continuity, and Common Sense in Historical Geology, in Catastrophes and Earth History 
(Berggren & van Couvering eds. 1984). 

15. Brongersma-Sanders, Mass Mortality at Sea, in Treatise on Marine Ecology and Paleoecology, Ecology 
941-1010 (Hedgepath ed. 1957). 

Chapter XII 

Panel Discussion: The Environmental Threat 

of Military Operations 

Vice Admiral James H. Doyle, Jr., U.S. Navy (Ret.): Good afternoon. I am Jim 
Doyle. I have the unenviable task of trying to come to grips with the facts of the 
situation. First of all, let me say what a great pleasure it is to be back up here at 
the Naval War College at one of Jack's forays and to see many old friends and to 
meet some new ones. In addressing this balancing role, that is, trying to figure out 
the risks versus the benefits of protecting the environment during combat, it is 
always helpful to know what the facts are in order not only to develop realistic 
international law related to armed conflict, but also to provide the basis for sound 
policy choices. Our panel will, hopefully, provide some insights as a basis for the 
discussions that will follow in subsequent panels. To the best of our knowledge, 
what are the actual effects on the environment of various land, sea, and air combat 
operations? Or, even before combat operations, in training and readiness, and all 
the other operations we are calling "peaceful deployments", to actually deploying 
armed forces in combat, what are the impacts of our operations on the 
environment? Are the effects upon the environment of those actions negligible? 
Are they short-term or are they long-term? If they are short-term or long-term, 
how would you characterize the significance of the effect upon the environment? 
Do the effects trigger collateral effects and, in turn, are they short-term or long-term? 
How significant might such collateral effects be? What is the relationship of the 
various combat operations to the accomplishment of the mission, and very 
importantly, as we heard just a moment ago, in what context are they being carried 
out? Now these are all very tough questions for our panel but we have a very 
distinguished group of panelists that will try to come to grips with this enquiry. As 
Admiral Stark and others have pointed out, the business of operating at the limited 
end of the spectrum of conflict poses a tough challenge in considering the possible 
environmental impacts of combat operations. Not only are you trying to limit the war 
and, hopefully, bring it to a diplomatic conclusion, you are also trying to limit any 
damage to the environment because you are probably going to have to go in there 
sooner or later and redress any environmental damage you may have caused. Well, we 
are going to have to try to come to grips with that. 

Our first speaker will be Colonel Frank R. Finch, Director of Environmental 
Programs in the Army. His mission is to ensure that the Army complies with all 
applicable environmental laws and regulations. Colonel Finch has had various 
command and staff assignments both within the United States and overseas, 

Panel Discussion 149 

including Deputy Chief of Staff for Engineering, U.S. Army Pacific, and the 
Commander of the Baltimore District of the Army Corps of Engineers. Frank 
would you lead off? 

Colonel Frank R. Finch, U.S. Army: Good afternoon. My task, as the Admiral 
indicated, is to look at the environmental threat of Army operations. But, before 
I begin summarizing my paper, I would like to just add a follow-on note to our last 
panel. There was some discussion as to the extent military people are trained to 
be conscious of environmental considerations as they prepare to go into combat 
or to go to war. I can respond to that question from personal experience. One of 
the things that we do out of my office is to run the Army's environmental hot line. 
This is, in reality, an assistance line, a one-stop 800 number, if you will, for anyone 
to call in and ask for help, whether it be with regulatory interpretations, or more 
complicated scientific questions. About a year ago, when the 10th Mountain 
Division was preparing to go in to what at that time looked like a hostile landing 
in Haiti, we handled dozens of phone calls from 10th Mountain planners and 
operators that were in their war planning process. They were developing plans 
both for deployment and for combat operations, and they were very concerned 
about doing all the proper things environmentally. We had quite a time answering 
all the questions they raised in making sure that they were approaching their duties 
in a diligent manner. I think that is just one indicator that our culture has changed 
considerably. For those of you who are not in the military and do not see it on a 
day-to-day basis, I think you would be surprised, pleasantly surprised, at the extent 
to which we have incorporated environmental planning into our day-to-day 

With that as a preface, let me try to summarize the key points of my paper. It's 
a lengthy paper and I will just address the highlights so that we will have plenty 
of time for discussion. First of all, I think we all recognize that environmental 
threats have been an inherent part of warfare as long as mankind has had conflict. 
By definition, in warfare both sides are committed to a cause that they are prepared 
to die for and are prepared to kill for. Very often, environmental considerations 
are not an important factor in the decision-making process. What I am going to 
try to do is to show you how we have analyzed the threat to the environment posed 
by combat operations in terms of scope and scale. I think that there has been a lot 
of discussion already today that that is an important factor in the planning process. 
It is not a black, white, or binary discussion here that is necessary, but a whole 
spectrum of conflict and a whole spectrum of threats. In my paper, I go back to 
400 B.C. Greece, where one of the first cases of a sacred temple being despoiled by 
the Athenians is recorded. This was done as a deliberate action and was designed 
basically just to antagonize the enemy. In the second century B.C., the Romans 
spread salt on the fields of Carthage to destroy their crops and to poison their soil. 

150 Protection of the Environment During Armed Conflict 

Sherman's march to the sea during the Civil War destroyed Confederate 
agriculture and industrial resources. In World War II there were many such 
occurrences. For example, the Russians used a scorched earth policy on their own 
territory to deny Germany the resources to continue its offensive. With respect to 
Vietnam, we have already discussed herbicides and their uses on vegetation in 
order to deny the enemy concealment. The long-term effects of herbicide use in 
Vietnam are still unclear. In the 1980s, the Soviets destroyed crops in the fields of 
Afghanistan to deny food to the rebels. During Operation Desert Storm, the Iraqis 
looted agriculture resources, destroyed irrigation capabilities, and destroyed oil 
processing facilities. Again, some of these actions are going to take us years to 
remedy. In my paper, I suggest a model to analyze hazards and note that the largest 
body of scientific analyses in this area comes from risk assessment of hazardous 
waste disposal operations. And here the general model to determine the hazard of 
any contemplated action is to look at a source-pathway-receptor process. A simple 
military example would be chemical nerve agents. Chemical nerve agents are the 
most toxic chemicals on earth. A person even briefly exposed to a small quantity 
of these chemicals will die, absent appropriate medical attention. Most such agents 
work either by being breathed or through absorption in the skin. Chemical nerve 
agents are delivered usually by air transport through spraying or through explosive 
munitions. Using the model that I described, the chemical agent is the source, air 
is the pathway, and the soldier is the receptor; you need all three to have a complete 

My paper then addresses the multiple sources of military threats to the natural 
environment. They could involve any physical, chemical, or biological agent that 
is capable of producing a specific harm or damage. The paper describes many of 
the sources of such threats. Let me read a few of them. Explosives, projectiles, 
chemical weapons, biological agents, and nuclear weapons are obvious ones. But, 
there is a much longer and less obvious list of hazardous sources, primarily 
chemicals, that are also essential in combat, including petroleum products, 
chemicals for biological and chemical decontamination, infectious waste from 
medical facilities, spent batteries, pesticides, and so forth. The list is almost 
endless. Contaminant sources may also be an indirect result of military operations, 
such as waste water treatment facilities that discharge untreated sewage following 
damage by an artillery shell. 

There are many ways we can categorize threat sources and effects and so forth; 
I try to offer a few in my paper. I think it is important to distinguish deliberate 
effects from accidental effects. Each hazard source must also be analyzed to 
determine its hazard potential. Again, borrowing from the hazardous waste 
management process, we can classify these hazards as corrosive, ignitable, reactive, 
toxic, and infectious. We can also look at time frames, "acute" means those that 
have an immediate impact on health, and "chronic" means those that require some 

Panel Discussion 151 

period of time to produce an adverse effect. Nations see and feel the immediate 
effects of acute warfare and its hazards but they feel and they worry about chronic 
effects such as we saw with Agent Orange, nuclear exposure, or the unknown effects 
associated with the so-called "Gulf Syndrome", for example. Effects on the ecology 
are equally uncertain. 

My paper also briefly discusses pathways, and I think one important point to 
look at is when you do not have all three elements of the source-pathway-receptor 
model. Chemical warfare is possible and indeed we prepared for it in the Gulf War 
because we had protective gear. That protective gear was intended to interrupt the 
pathway. You still had a source; you still had a receptor, but you didn't have a 
pathway if you had protective chemical gear that is working properly. Likewise, 
if you have a non-mobile agent located in an area without receptors, you do not 
have a risk because it too lacks a pathway. 

I spent a great deal of time in my paper talking about "uncertainty" and this 
probably deserves its own conference. But environmental persistence is a major 
factor. Chemical, biological, and radiological agents may transform when they are 
released into the environment. These processes can be chemical reactions, physical 
degradation, or biologically driven reactions. The products of these reactions may 
be more or less hazardous than the original agent. There are numerous 
mechanisms that influence the decay or change of an agent in the environment. 
One of these is hydrolysis, which is a reaction of water that can yield a different 
chemical. Another is photolysis reactions which are powered by sunlight in air, 
transforming vapors and aerosols. Biological agents will either grow, die, or 
mutate, depending upon environmental conditions they encounter. Chemicals in 
the water and in the soil are susceptible under the proper conditions to 
bio-degradation or bio-accumulation. As a common example, bio-accumulation of 
PCBs in fish living in contaminated streams represent a hazard to the organisms 
that eat the fish. To continue on with elements of uncertainty, the amount of 
contamination that reaches the receptor, and the rate at which it is absorbed, are 
determined by many factors as is the case of accumulation levels. Physical 
characteristics of the receptor are also key, such as body weight, lung capacity, skin 
surface area; and they influence the amount of contamination that actually enters 
the body. Inhalation rate, water uptake rate, and duration of exposure are three 
obvious factors that are important. 

The graphic that I use in my paper lays out these categories. The left hand side 
of the graphic lists the pre-combat phase, preparation to go to war, the combat 
phase, and the post-combat phase. This listing is further broken down to reflect 
acute and chronic effects. Across the top of the graphic are the Model categories 
of source, pathway, and receptor that I mentioned, as well as hazard classification. 
You can use this model to go through the various phases of combat operations and 
determine whether you are dealing with acute or chronic conditions. 

152 Protection of the Environment During Armed Conflict 

The next point that I want to make is that our weapons production system has 
produced major contamination problems for this country. I would like to read to 
you a short passage from the Office of Technology Assessment of the U.S. 
Congress. That office had this to say about the long-term environmental effects of 
weapons production: 

Many factors have contributed to the current waste and contamination problems at 
the weapons sites. The nature of manufacturing processes, which are inherently waste 
producing, [have a] long history of emphasizing the urgency of weapons production 
in the interest of national security to the neglect of environmental contamination, a 
lack of knowledge about or attention to the consequences of environmental 
contamination, and it is an enterprise that has operated in secrecy for decades without 
any independent oversight or meaningful public scrutiny. 

My paper briefly discusses Agent Orange from the standpoint that its half-life, 
when measured on a leaf, is two hours. Whereas, its half-life, when measured in 
soil, is ten years. Because its toxicity is so extreme, half-life becomes a very, very 
important factor when talking about soil contamination. 

The next major point was alluded to this morning — targeting of certain large 
facilities that support a nation's war-fighting capability can have tremendous 
short-term effects on the environment and also can have certain long-term effects. 
My paper uses the example of the RAF bombing of the Mohne Dam in May of 
1943. In the initial planning, the Allies focused on Hitler's industrial base and his 
ability to wage war. When the dam was breached, one thousand houses were 
destroyed or damaged; 1 1 factories were destroyed, and 1 14 damaged; and 25 road 
bridges were destroyed, and 10 damaged. Various power stations, pumping 
stations, water and gas facilities were also put out of action. The long-term 
environmental effects of this action are unknown. Damage to the environment was 
not analyzed at the time of the bombing and it is difficult to assess it 
retrospectively. It is unknown what types of factories were destroyed and what 
hazardous materials entered the Ruhr River. We know some chemicals would 
hydrolyze, some would settle out, and still others might bio- accumulate in 
organisms or biologically degrade. 

My next major point, also mentioned this morning, is that predictions of the 
environmental threat of military operations can be exaggerated. We have all talked 
about the oil spills and the destruction of the oil facilities in Kuwait. Most early 
coverage of this included some very dire predictions about the magnitude and 
duration of this effect. Believe me, I am not trying to minimize this problem, but 
I just want to put it in perspective. The original estimate to stop the oil fires ranged 
from two to five years. In fact, innovative technology was developed during the 
recovery operations and reduced this time to less than nine months. Also, the 
predicted impact of the smoke that suggested large regional and even global 

Panel Discussion 153 

damage was mitigated somewhat by meteorological conditions that fortunately 
limited some of the severe environmental effects to very localized areas. However, 
the long-term effects of this, both the oil spills and the oil fires, is still being 
examined. I think it is important to not draw any premature conclusions. 

I wanted to mention a point that I do not believe we have discussed yet. One 
long-term effect of military operations is that it is difficult to quantify the loss of 
talented people, historical records, and scientific equipment and capability. They 
could be used to provide better analysis of environmental problems and better 
strategies to recover and, indeed, to rebuild the country in question. Targeting of 
nuclear facilities or chemical facilities is, of course, a special concern. In the 
Bosnian conflict, we have seen war damage to some fifty factories along the 
Danube. Hazardous chemicals were involved in production of weapons and 
explosives there, as well as metal plating and refining of oil. Now these pollutants 
can be passed along downstream where they can settle in the river bottoms to be 
a future problem during dredging or whenever the river bottom is disturbed. Back 
in 1984, we had a well-known industrial incident in Bhopal, India which killed 
2300 people and injured 20 to 30 thousand others. This accident was due to a small 
amount of water being released into a storage tank of methyl isocyanide. Collateral 
damage from military operations could cause a similar tank to rupture and be 
exposed to water with equally horrendous results. The Bhopol plant was an 
insecticide processing factory similar to those in many countries. 

U.S. concern for environmental impacts is much greater and more sophisticated 
than it ever has been. However, potential adversaries may not share our ethical 
frame work. I think we discussed that at length this morning. The current military 
trend in armed conflict doctrine, as described, for example, in the Army's Force 
XXI doctrine, stresses information processing and technological innovations 
which reduce the size of the force, increase precision and lethality, and increase 
land area operations. Although the technology within U.S. and NATO forces is 
advanced, the technology of our enemy may run the spectrum. It is likely that 
environmental threats and impacts on the land caused by U.S. forces could 
decrease. However, as was stated earlier, in Operation Desert Storm, although 
everyone saw on CNN how precise our laser guided weapons could be, 93 percent 
of the ordinance that was dropped was gravity bombs, of which 70 percent missed 
their target. So, although we think of the Gulf War as a precision guided weapons 
war, there was a great deal of conventional ordinance dropped with inevitable 
collateral damage to the environment. 

In the concluding comments of my paper, I make several points to place all of 
this in context. First, I stress the utility of the use of the model for analysis of the 
threat. Secondly, I believe the environmental impact of military operations can be 
exaggerated in the short-term, and I also believe it is very difficult to predict in 
the long-term. Many people are studying the effects of the Gulf War and it is too 

154 Protection of the Environment During Armed Conflict 

early to say what the long-term damage to the environment is. Commanders should 
make military operational decisions when fully apprised of the risks and the 
uncertainties of environmental effects of their plans. There are times when 
military necessity would dictate that military operations will cause some adverse 
effect on the environment. But, as has been said earlier, commanders have an 
obligation to show due regard for the environment and to avoid unnecessary 
damage. Third, our ability to mitigate the effects of our combat activity has grown 
immensely. Fourth, our ability to clean up unexploded ordinance, particularly 
buried land mines, continues to challenge environmental resources and technology. 
I did not discuss that very much here, but it is a huge problem — detection and removal 
is a tedious and dangerous process for unexploded ordnance. Finally, as we assess 
environmental risks, we have to remember that a full range of warfare is possible 
and that other nations may not share our environmental ethic. The use of terrorist 
tactics against facilities which specifically target damage to the environment is 
very possible, and we have seen it in our most recent conflict. Thank you. 

Vice Admiral Doyle, Jr.: Thank you very much Frank. Our next speaker is 
Commander John Quinn, JAGC, USN. John is a graduate of Duke University. He 
entered the Navy as a Supply Corps officer but soon thereafter saw the light and 
became a lawyer. He is a graduate of Georgetown Law School and has a Master of 
Laws in Environmental Law from George Washington University. John is now 
the Environmental Counsel to the Chief of Naval Operations, Environmental 
Protection Division, and is representing the Director of that Division, Rear 
Admiral Schreifer, here today. I might add that he previously served as 
Environmental Counsel on the Staff of CINCPACFLT. John. 

Commander John P. Quinn, JAGC, U.S. Navy: Thank you very much Admiral. 
I would at the outset like to convey Rear Admiral Schreifer's regrets that he is not 
able to be with you today. He very much wanted to be here. He is currently the 
acting Deputy Chief of Naval Operations for Logistics. Dr. Ron DeMarco, 
representing the Office of Naval Research, and I have prepared a paper which we 
will be alluding to in our remarks. We will present a three-part discussion of the 
impact of combat and military operations other than war on the marine 
environment. Actually, I have the easy part. I get to lead off and do one of those 
parts and then Dr. DeMarco will take over and do the other two. What we would 
like to do is pose two questions and then hypothesize an answer. The first question 
is what should military planners and military commanders know about the marine 
environment as they prepare to, and actually do execute their missions. That is 
the part that I will address. The second part, which Dr. DeMarco will take, is the 
question of what actually do we know, and how extensive is our knowledge about 
the effect of combat and operations other than war on the marine environment. 

Panel Discussion 155 

He will point out that despite the fact that we do have a great deal of knowledge 
in this area, we have just scratched the surface, if you will, and there is still a great 
deal of uncertainty and unreliability, as has been mentioned several times so far 
today, regarding the anticipated effects versus what actually did occur with the 
benefit of hindsight. Dr. DeMarco will then offer a model for policy makers 
evaluating and dealing with this scientific uncertainty. 

Moving into the first part, what should military planners know about the effects 
of their operations on the marine environment? As I look at the statement of 
purpose for this Symposium, I note that it is mainly internationally focused, and 
appropriately so. The focus is to examine the existing international legal order to 
determine if it adequately proscribes environmental damage not justified by 
military necessity during armed conflict and to determine, basically, if that regime 
is adequate. The second purpose is to examine the interrelationship of the law of 
armed conflict and the peacetime environmental regime as well as the adequacy 
of existing mechanisms to enforce State responsibility, etc. As a person who is 
trained in and whose experience for the last six years has been primarily in 
domestic U.S. environmental law, as it affects the Navy, I think we would be remiss 
if we didn't pause during this Symposium and at least acknowledge the extent of 
requirements upon military operations that are imposed by the domestic law of 
the United States, perhaps by the domestic law of other nations, and acknowledge 
the extent to which those requirements actually travel with military forces in 
peacetime and to a certain extent in wartime as well. 

I will postulate that there is a continuum of action starting from peacetime 
operations and carrying all the way through military operations other than war 
and into limited war and total war. This is a continuum of intensity of action, if 
you will, and I just ask you to reflect on what legal regime controls each stage of 
that process. At what point does one legal regime end and another pick up? From 
the standpoint of domestic U.S. law applicable to the operations of the military, 
and particularly the Navy and the Coast Guard since we are charged with 
discussing the marine environment here, I would advance two propositions. One 
is that there are very substantial requirements to collect information about the 
impacts of war on the marine environment, and to analyze and consider that 
information in decision-making mechanisms, that are imposed by domestic law. 

Secondly, to a great extent, the requirements to acquire information and to 
consider it, at least from the domestic law standpoint of the United States, do not 
disappear in time of conflict. They may be modified. In fact they are modified to 
some extent. But, it is important to acknowledge that they do not entirely 
disappear, and perhaps to reflect on what the meaning of that may be. I would like 
to illustrate that by looking at three aspects of U.S. law very briefly and to then 
compare and contrast their peacetime requirements with what those requirements 
are in war. 

156 Protection of the Environment During Armed Conflict 

Colonel Finch mentioned environmental planning, the environmental 
planning done by the Army in preparation to going into a foreign country for 
purposes of conducting a military operation other than war. We have a very strong 
environmental planning regime in this country that has been in existence as early 
as 1970. The National Environmental Policy Act requires federal agencies to 
document the effects of their actions on the environment, including the marine 
environment, for any activity that would be considered a major federal action 
significantly effecting the quality of the human environment. In carrying out those 
responsibilities, the military services spend a lot of money and time and effort 
documenting what these impacts might be. This particular requirement travels 
with the Navy as it leaves port, at least as far out as the territorial limits of the 
United States, and it is a requirement that we pay a lot of time and attention to in 
order to stay on the right side of the law. 

Beyond our territorial seas, the conduct of the military in this arena is directed 
by Executive Order 12114, which requires certain examinations of the 
environmental consequences of our actions on the global commons and even 
within the territory of foreign countries. There are a number of exemptions and 
qualifications to those requirements, the ultimate effect being that, for the most 
part, an operation such as war or an armed conflict other than war would almost 
certainly not be subject to the environmental studies requirement. But, certain 
other activities that might be conducted in the marine environment, during 
peacetime in particular, would be so subject and, in fact, the requirements are 
adhered to. 

Now as far as the National Environmental Policy Act is concerned, how far into 
the continuum toward war does that extend? There is no national security 
exemption provided for in that Act. It does not say, "This does not apply during 
war," as do a few statues, mainly those pertaining to vessel source pollution. There 
is simply a requirement or proviso in the Act that in an emergency — not war — the 
agency concerned can consult with the Council on Environmental Quality and 
they will figure out how to do the right thing. In fact, as our paper points out, that 
has had to be done on a couple of occasions due to military exigency during 
Operation Desert Storm pertaining to some operations that had to take place back 

The environmental planning requirements of the National Environment Policy 
Act and Executive Order 12114 are significant, substantial information gathering 
and analyses requirements that the United States military must and does consider. 
They are, however, requirements that are only procedural in nature. They do not 
necessarily require that you make the environmentally correct call, simply that 
you document and that you consider what the effects are, the objective being 
enlightened decision-making. There are two other U.S. statues, however, that 
impose not only information requirements but substantive requirements on what 

Panel Discussion 157 

we can do. Those are the Endangered Species Act and the Marine Mammal 
Protection Act, both of which control U.S. entities on the high seas world-wide 
with regard to their requirements not to "take" an endangered species or a marine 
mammal of any description. If your activity, possibly including war, might result 
in a "take", than the requirement of these two Acts is to get a permit from the 
appropriate wildlife agency. In the process of getting such a permit, a considerable 
amount of biological information must be collected, provided and considered, 
most generally in a public way. Again, these requirements are extra-territorial, that 
is, they travel with the military when the military does travel. There are some 
qualifications to these actions under the Endangered Species Act. For example, 
there is a "relief valve". If an action otherwise must be taken, a committee of 
Cabinet level officials may grant an exemption from the requirements of the Act, 
but only after a certain process has taken place, which may make it difficult to take 
action in a very timely manner during a military exigency. Under the Marine 
Mammal Protection Act there is also such a "relief valve". These mandates of U.S. 
domestic law include quite substantial requirements, requirements that do not 
necessarily terminate, as you might think, the moment that we move into war or 
operations other than war. Moreover, at least several of them are extra-territorial 
in terms of their reach. 

So what is the bottom line here? There are environmental constraints other 
than those imposed by international law on what the military is able to do. We 
need to access our environmental posture with regard to staying within the 
guidelines, assess the risks of our military operations, and assess the risks of being 
perceived not to be in compliance with domestic and international environmental 
standards. As has been said numerous times throughout this Symposium, and 
from my perspective in the environmental compliance business of the Navy, I can 
attest that there seems to be a true environmental ethic that has evolved over the 
last number of years in part driven by requirements such as these. This ethic is in 
part driven by the fact that the Navy now consists, in significant part, of young 
men and women that have grown up with Big Bird telling them to recycle, and so 
forth. These people are now lieutenants, lieutenant commanders, and senior 
enlisted people. They are truly imbued with an environmental ethic. 
Consequently, these requirements are viewed as consistent with military 
operations to the extent that we will take every measure that we possibly can to 
protect the environment, consistent with the mission. I would like, at this point, 
to turn the rostrum over to Dr. DeMarco. Having talked about what the 
commander should know, Dr. DeMarco will now tell us what we do know. 

Vice Admiral Doyle: Thank you John. I am going to have to look into some of 
those provisions in our domestic law. Our next speaker is Dr. Ron DeMarco. He 
is one of our very dedicated Senior Executive Service civilians of the Naval 

158 Protection of the Environment During Armed Conflict 

establishment. He is the Director of Environmental Programs of the Office of 
Naval Research. In this capacity, he directs Navy-relevant research in the areas of 
chemistry, physics, and interdisciplinary environmental research. His past 
assignments have included Head of the Advanced Inorganic Materials Section and 
Head of the Advanced Materials Section. He has written widely, holds three 
patents, and has given numerous technical reports. Ron. 

Dr. Ronald A. DeMarco, Office of Naval Research: Thank you Admiral. It is a 
pleasure to be here as a scientist among legal and policy people. To borrow from 
Red Skeleton, my presentation is like a long-tailed cat in a room of rocking chairs. 
As Commander Quinn and I first started talking about our assignment today we 
realized very quickly that we were talking past each other; we were not talking the 
same language and we do not mean the same things by what we say. So what I am 
going to do is provide a scientific perspective because there is a difference when 
you talk about the impact of naval operations on the environment from a scientific 
versus a legal or policy point of view. I define "effect" as the result of an action. If 
we try to put it in military terms, we can look at the "effect" as the tonnage of 
bombs dropped. But that does not tell us anything about the consequences. The 
"impact" is that the target is destroyed, the target is missed, or it is partially 
destroyed and it will be back on-line in one week. The distinction between "effect" 
and "impact" is fairly important from a scientific standpoint. What we tend to see 
in the policy area is many people using effect and calling it impact. This will be 
the context in which I use these terms. When you talk about impact you have to 
know more than just the effect, you have to know what the capability was before 
and what the capability is after. There are time considerations to factor in as well. 
You can have a short-term impact that is very minor but in the long-term can be 
catastrophic. It is like changing the flow of water in a river. In the short-term, the 
impact may be minor. But, in the long-term it may create erosion or establish 
different flow patterns for the river and as a result you may flood some areas and 
destroy crop growing capabilities. Conversely, something that looks like a 
short-term catastrophe, and I think oil spills are of that nature, are in the 
long-term, due to bacteria that grows in oil polluted areas, able to be remediated. 
In the longer term, maybe ten or fifteen years, the impact may actually be very 
negligible. It can range from negative to beneficial. From the beneficial side, let 
us assume there was, for some reason, an excessive number of predators in some 
given species. So they are working very hard on the food chain below them and 
the chain can not survive. If by accident you happen to kill off some of the 
predators, you may actually have put the system in better balance than it was 
before. Whether an impact is negative or beneficial is often decided from a value 
judgment perspective, and this is part of the problem with science. Science takes 
a long time to complete, to verify, and to confirm, and often you do not have a long 

Panel Discussion 159 

time to wait to make decisions so it falls back on a value judgment. Society values 
life, society values other forms of life. There are differences in cultural values also. 
During the Gulf War, the Saudis wanted to protect their "RO" units, the 
reverse-osmosis water purification units, at the expense of other possibilities. So 
that was a value judgment on their part. 

Development of a sound environmental policy should consider the initial 
condition of the environment, the anticipated effect of the policy on the 
environment, the impact of that effect and the cost/benefit ratio of that impact. As 
I mentioned, to assess the impact of an action, you have to know the initial 
conditions of the environment. You have to know not only what your impact or 
effect might be, but what does nature itself do? Your impact may be relatively small 
compared to what nature normally does. What is the effect and what did you do 
to the environment? That becomes the "numbers" issue. Then comes the 
assessment of the impact and that is a very hard thing to do. It becomes a 
cost/benefit analysis and cost does not have to be measured in dollars. Cost can 
involve a variety of things. How do you assess the cost/benefit of the impact a policy 
decision may have? Assume you have a policy for tuna fishing, for example. 
Because you change the net size, fishermen may say they are going to catch fewer 
fish, therefore, there is an economic impact on them. You can calculate the number 
of dollars or training hours affected by a policy decision. You can say what those 
numbers are going to be, but what is the impact of those numbers on reduced 
training capabilities? In the military what you want to do is train as you fight, you 
do not want to train at half speed and then find yourself in a situation where you 
have to be at full speed and not be aware of what is happening and how things can 
change. So you can lose the edge there and you cannot put a dollar value on that. 
But there should be some type of an assessment of what the policy actually does, 
not only to the environment, but, from the military sense, to our military 

I am going to provide three examples and go through them to try and give you 
an idea of actual situations. The Russians, the former-Soviet Union, released 
papers saying they sent radio-nuclides into some of their rivers; that they took 
some of their reactors from some of their ships and threw them into the Barents 
Sea. They say the reactors are down there and here is the amount of nuclear 
material that was in them and here is when it happened. What do you do? This 
stuff is leaking and we are now talking about it's "migration", which could get it 
into the rich fishing areas off the coast of Scandinavian countries. It could move 
considerable distances. What policy do you adopt? What action do you take? One 
thing that was done at the U.S. Naval Research Laboratory, using their computing 
capabilities, was to model what was going to happen to those materials. They 
calculated the high level waste that was dumped with those reactors, looked at the 
rivers that emptied into the Barents Sea, and then looked at the radioactive waste 

160 Protection of the Environment During Armed Conflict 

that was dumped into the Irish Sea from the Sellafield nuclear power plant in the 

What they found was that the river releases from the former-Soviet Union, and 
the Sellafield releases from the U.K., basically accounted for all the nuclear activity 
that was in the water. If they were to calculate in the high level nuclear waste that 
was in the Soviet reactors, they should have had real numbers ten times higher 
than what they were seeing. So we were in a good-news/bad-news situation. You 
are not leaking the high level radiation material. That is the good news. The other 
part of the good news is that you are in a position to get monitoring out there and 
to be able to really watch what is happening. The bad news is that the high level 
nuclear waste is not leaking yet. What is the environmental impact of all this? We 
do not know. Are the nuclides that are present in the water up there in such dilute 
concentration that their chances of getting into the food chain are extremely small, 
negligible, zero? Or, are they there at a level that they might get into the food 
chain? That consequence has not been looked at but at least we know the effect at 
this point. 

The second situation I will address is the Gulf War oil spill. Six hundred plus 
million barrels of crude oil were dumped; six to eleven million, depending on your 
numbers, were released into the marine environment itself. The initial estimates 
were grim. It was believed that the oil slick would sink as the 1983 spill did, and 
if it did, it would cause catastrophic damage to sub-tidal organisms and there would 
be gross contamination of sub-tidal biological organisms. In actuality, that did not 
happen. There were physical, chemical, and biological reasons why it did not 
happen. The wind kept all the oil very close to the shores of Kuwait and Saudi 
Arabia. Many of the organisms on the shoreline were very severely impacted, 
including aquatic birds and animals that bore into the ground, like frogs. Oil went 
into the holes and it sat there. It does not weather there because there is no 
weathering down in the caverns. So there were some very severe impacts along the 
shore, but not what was anticipated. We also witnessed extensive oil recovery 
operations. Even before the war was over, people were already trying to recover 
the oil. The numbers vary, but somewhere between 15 and 35 percent of the oil 
spill was actually scooped up and taken away; it was recovered. A large amount of 
the oil evaporated. It is very hot in the Gulf and you get more evaporation there 
than you would normally. The discharges that regularly occur in the Gulf due to 
tanker traffic did not happen nearly as much because there was not much tanker 
traffic. Nobody wanted to run into a mine. So the tankers tended to remain in port 
and that lessened the impact on the environment. The intense solar radiation and 
enhanced chemical reaction, as mentioned by Colonel Finch earlier, helped 
mitigate some of the problem. But, as was pointed out by the Colonel, we do not 
know the long-term effects. One of the comments made by the National Oceans 
and Atmospheric Administration (NOAA) was that the environment has changed 

Panel Discussion 161 

and we do not know if it will ever come back to the way it was — it may now be 
different. What they found, however, were unspoiled areas that continue to 
prosper. If you can clean up what is there on the shore, you may be all right, in 
terms of ultimate recovery. How long that will take we just do not know. We are 
probably looking at twenty years before we can get to that stage. 

My third situational example is one that is a little closer to the Navy's heart. 
Acoustic thermometry of ocean climate (ATOC). ATOC looks to see if the 
"greenhouse effect" and global warming is actually occurring. The way this is done 
is you send impulses of sound into the deep basins of the oceans over thousand of 
miles and you measure the speed of the sound through the water. The speed of 
sound is very sensitive to the temperature of the water, so if there has been a change 
in the deep basin water temperature, there is a good possibility of global warming 
having occurred. 

The problem is you have to use low frequency sound and there are 
environmental groups that have argued that if you use low frequency sound at 
these levels you are going to deafen marine mammals; you are going to cause 
physiological trauma to the marine mammal population; and all sort of negative 
things are going to happen. In actuality, the sound that would have been used 
would have been less than that emitted by a tanker. The number I have seen is one 
tenth the value of a large tanker. We send tankers back and forth across the oceans 
all the time. We have not seen any deafening of any marine mammals that we know 
of. So what has happened is that the experiment has been stopped. California has 
now issued a source permit for the ATOC experiment, so they can use California. 
Hawaii has not issued a source permit, so the experiment is still on hold. The 
National Research Council did a report in 1994, so we are not looking at dated 
information, and all the information and papers they were able to put together 
concluded that low frequency sound does not appear to be a problem for marine 
mammals. Although this report exists, the National Marine Fisheries Service has 
a 150 decibel (dB) source level proposed ruling that is being looked at right now. 
Large tankers exceed 150 dBs. The navigational equipment on most ships exceeds 
that. Many practical things exceed that number already. We have been able to do 
this without problems in the past; 150 dBs is not a scientifically based number. 
No information they have constitutes a basis for any regulatory action, and yet 
there it is. This is of interest to the Navy because we use low frequency sound, 
sonar experimentation and a variety of other things. A ship may have to get permits 
in order to exceed the 150 dB limit if that ruling goes through. 

Now, what do we know about marine mammal hearing? We will spend some 
time on this as this is important to the Navy. Most of the hearing tests that have 
been done with a variety of species of seals are generally stopped at a kHz. We have 
to go lower than one kHz. We have determined that when you get down less than 
1000 Hz you have to increase the volume to at least 125 or 135 dB before the animal 

1 62 Protection of the Environment During Armed Conflict 

is able to hear it. Now hearing something and being harmed by that level of sound 
are two different things. Suppose my kids have their music on too loud. I can put 
a filter on it by shutting the door; I can turn it down; or, I can go away. But, if I 
was a marine mammal, I would have been "taken" because I would have been 
affected by that music. We are trying to understand the physiology and the hearing 
of marine mammals such as the Bottle-nosed porpoise. We have conducted hearing 
"tests" on individual porpoises over a period of fifteen years and have learned that 
they experience hearing loss as they age just as do humans. As an example, one 
porpoise could hear sound at 50 Hz at 50 dBs. Fifteen years later, that same animal 
had about 50 percent hearing at probably 60 or 70 Hz, but it required a power 
source of about 140 dBs for it to do so. What we are finding is that among marine 
mammals, hearing is naturally lost just like our hearing is naturally lost. That 
being true, how can we now assess what the impact of acoustics is on any particular 
marine mammal if we do not know the age of the particular animal and what his 
previous hearing was? 

We are also assessing the effect of low frequency sound on marine mammals. 
We have patterns of marine mammals diving, climbing, diving and climbing in 
the ocean. As the animal dives its respiratory rate and heart beat becomes very 
slow, and as it comes back up they increase again. If you introduced a sound at 
that point and saw a change in the animal's heart beat or respiratory rate, you might 
say it has been affected. We have done the same thing by determining whether an 
inputted low frequency sound affects the sounds Finback whales use to 
communicate with each other. Finback whales speak in dialect. Those in waters 
off California, the "southerners", have a bit more of a drawl than do Finbacks off 
of Greenland and northern Europe. If you did not know they spoke in dialect, and 
were used to hearing a drawl and suddenly, in a different area, you do not hear that 
drawl, you might decide that Finbacks have been impacted. You might decide 
there is a danger, that something is wrong. But, nothing is wrong. It is just that 
Finback whales speak differently. The point is that you cannot make valid 
environmental policy decisions without first understanding the environment or 
the species that you are concerned about. 

Let me return again to the process — the components of the environmental 
policy process. We began with mechanisms that produce environmental "effects". 
These may be military operations, nonmilitary operations and activities, or natural 
events that occur. Each of these generate some sort of effect. That effect can impact 
the security of the nation which then would trigger activity in the political system 
and could have political consequences. The effect could impact the physical 
environment and have consequences for ecological systems. Or, the effect could 
have its impact in the economic environment with consequences for the social 
system of the nation. Therefore, an impact assessment should be made that 
involves all of these parts of the puzzle. What we are seeking is a proper balance. 

Panel Discussion 163 

There has to be a balance. What happens is that environmental policy decisions 
may not be balanced. An example of that is the way the Navy shock tests its ships. 
You want to ensure that the integrity of the ship and its systems are properly 
protected from shock transmitted through the water column. But you are also 
concerned for the safety of marine mammals if they get too close to the test site. 
Laissez faire — shock test any place you want, or ultra restrictions — you cannot 
shock test at all. What the Navy does is take a balanced approach. We put spotters 
in planes and on surface craft. We have floating and fixed listening devices to listen 
for any marine mammals in a wide radius around the test site. If none are located, 
we do the test. If marine mammals are detected, the test will be delayed until they 
leave the area. So that is an illustration of the balancing that can occur to meet 
everyone's objectives. But, you really have to watch to ensure that the proper 
balance is maintained. If it tilts too much one way or the other a compensating 
change in the policy and regulations may be required to bring it back in line again. 
If policy-makers want to look at new policy, they really ought to do so in terms of 
the entire assessment and the ability to balance the benefits and the costs with the 
policy that is generated. Thank you. 

Vice Admiral Doyle, Jr.: Thank you Ron. Our next speaker is Mr. William Arkin. 
Bill is a columnist, an author, and a consultant specializing in modern warfare, 
nuclear weapons, arms control, and the environment. You name it and he has 
written about it. Bill was Director of Military Research for Greenpeace 
International and co-author of a book on modern warfare and the environment in 
the Gulf War. He presently has a Mac Arthur Foundation Grant for looking at the 
destruction of electrical generating facilities in warfare. He is also working with 
Greenpeace International on the general subject of denuclearization of the world's 
oceans. Bill. 

Mr. William M. Arkin: First, I should say as the initial person speaking at this 
conference who does not work for the U.S. Government that what I am about to 
say is very critical of the US Government. Because of that, I should declare at the 
outset that I believe that environmental protection is adequate in warfare, but I do 
not think it is because of the law. I think it is because of our culture or ethic. The 
problem as I see it is that lawyers and military operators do not want to codify too 
many constraints. There is a cultural reality that much of what occurs during war 
is obviously secret; a reality that is used by some to deflect public opinion and to 
avoid outside intervention or control. When I say "outside", I mean the Air Force 
avoiding outside intervention and control perhaps even from another Service, or 
vice versa. I say that environmental protection is adequate because, to some degree, 
when I heard the presentation in the previous panel I expected examples to be 
given by the operators of cases where they felt that they could not conduct certain 

164 Protection of the Environment During Armed Conflict 

military operations during warfare because of environmental restrictions and I did 
not hear any examples come up. There is a presumption, somehow, that 
environmental regulations and law do restrict operations or that in some way the 
lives of soldiers and sailors has to be balanced against environmental protection 
and I believe that dichotomy is false. In fact, the conduct of good military 
operations, and here again I refer to the United States, are not at odds with 
environmental protection. And, in fact, the conduct of bad military operations, 
that is, operations that are done to avoid domestic environmental regulation or 
international regulation, but are done in secret, ultimately are more detrimental 
to the enforcement of international law. That is the basis of my paper. I look at a 
number of examples in which actual practices during the Gulf War contradicted 
or violated the legal obligations of the United States but because they were done 
in secret, or because they did not receive as much attention as what the Iraqis did, 
they are not "lessons to be learned," so to speak. In my paper, I argue that in spite 
of the absence of any war crimes being prosecuted against Iraq for its gross 
violations, in spite of the focus away from the Gulf upon the extinguishment of 
the last oil fires in November of 1991, and in spite of no new laws being 
promulgated as a result of the Gulf War (no new Geneva protocols), environmental 
protection has advanced. I examine some limited examples from the Gulf War that 
I think are applicable to future military operations. First, on a micro-level, I look 
at the use of certain weapons which I classify as "controversial" weapons. I classify 
them as "controversial" weapons because none of them are illegal, and here I refer 
to napalm, fuel-air explosives, cluster bombs, and depleted uranium ammunition. 
For whatever reason, we read about them in newspapers all the time. When the 
Ecuadorians and the Peruvians have a little spat, the Ecuadorian press is filled 
with articles saying the Peruvians are using napalm or when the press goes into 
Chechnya, the locals say the Russians use cluster bombs. No one really quite knows 
why they are referring to these weapons, as opposed to other weapons. Why does 
the news media report that napalm, or fuel-air explosives, or cluster bombs are 
used as opposed to just good old fashion other kinds of weapons which do similar 
or worse damage? I am not sure I have a clear answer other than that there seems 
to be an ethic of understanding of the repugnance of certain types of weapons. 
Whether you believe that the ones that I have mentioned are in that category or 
not is irrelevant. As General Linhard said this morning, the use of cluster bombs 
in the Vietnam War, in terms of going after triple-A on dikes, actually can be 
demonstrated as being a much less destructive means than resort to other, 
non-controversial bombs that might breach the dike. Cluster bombs used in urban 
attacks might be considered a more destructive means because of the high dud 
rate. Undetonated sub-munitions become virtual mines that have an adverse 
impact on the civilian population. Depleted uranium is clearly a superior tank 
killer to tungsten. It is cheaper; it is more efficient. Nevertheless, there is a residual 

Panel Discussion 165 

environmental effect from the use of depleted uranium that has now been 
demonstrated in the Gulf War and it seems that that classifies it as a controversial 
weapon. On the micro-level, after I look at certain types of weapons, my paper looks 
at the bombing of certain types of targets and here I look at two in particular, dams 
and oil tankers. In the case of dams, the United States and the Coalition did not attack 
any dams in the Gulf War. There were some suggestions early on by the Air Force 
that dams be considered as potential targets in response to Iraqi use of chemical 
weapons as a punitive measure, and three dams were identified by 
"Checkmate" — Headquarters, USAF Air Staff Planning Group — that would, if 
struck, have the most adverse civilian effect. They were chosen specifically for that 
purpose. However, legally they were scrubbed and that proposal was rejected at 
the policy level. As the war plan developed, and as the war was prosecuted, 
hydropower stations co-located at dams were looked at very closely in terms of the 
implications of striking those hydropower stations given the potential collateral 
damage to dams that might result. The conclusions being that there were methods 
that were tried and true from Vietnam for attacking those hydropower stations by 
the aircraft flying parallel to the dam wall, and by the use of precision guided 
weapons, which would minimize the danger to the dam, therefore hydropower 
stations were allowed to be hit. Having said all of that, according to the declassified 
Joint Uniform Lessons Learned System (JULLS) of U.S. Central Command 
(CENTCOM), the CENTCOM lawyers argued that in the future the U.S. Air Force 
should bomb dams because if we do not we are going to lose that possibility through 
some airtight legal restriction. Therefore, dams should be a part of target lists in future 

The second target I address in my paper is oil tankers and here the issue of law, 
of rules of engagement, listening to General Linhard speak earlier today, comes 
into full force. There were intense shouting matches between Admiral Arthur and 
General Schwartzkopf about the legitimacy of targeting tankers. The Navy 
attacked an Iraqi tanker on the 19th of January and sank it, causing a significant 
spill. That was a 72,000 ton tanker, one of Iraq's largest, presumed to be almost 
full of oil. Admiral Arthur argued to General Schwartzkopf why is not a tanker as 
legitimate a target as a dam or electrical power plants that you are hitting in Iraq. 
General Schwartzkopf argued to Admiral Arthur, "I do not give a [expletive 
deleted] what you think about whether electrical power plants or oil tankers are 
lawful targets, I say they are not going to be hit and that is what the rules of 
engagement say." Now I have interviewed the principals involved, and I have also 
interviewed the JAGs, and the J AGs all say the same thing, "Well, we do not know 
what they discussed." So when it comes to really ticklish questions of what to target 
and under what circumstances, often times they are resolved at very high levels 
with not much legal scrubbing, and without much legal consideration. But still I 
conclude that despite the fact the Navy had a very different interpretation of the 

166 Protection of the Environment During Armed Conflict 

rules of engagement than did the CENTCOM staff, and despite the fact that one 
tanker was hit and then the operation ceased until later in the war when, after the 
Iraqis started spilling oil, the ROE were changed and Iraqi tankers were again hit, 
it appears that when you talk about "the rules", they are really important. "The 
rules" as codified, are really important because at the decision-making level there 
is a lot of leeway as to what can and cannot be hit. So today we have talked a lot 
about "commanders," like we were talking about a commander on a ship or a 
captain in a platoon and what a company might be doing, but, in fact, commanders 
are also four-star generals and admirals who have at their disposal far more 
destructive means of attack. 

I should also say that one of our Coalition partners, the French, attacked tankers 
in the Gulf War as well, and they bombed Iraqi tankers moored at the Port of Al 
Ahmadi in Kuwait and two days later the Iraqis started to expel oil into the Gulf 
from that port. Now is there a cause and effect? I do not know, but why do we not 
know that the French attacked a tanker at the Port of Al Ahmadi? Because it is 
secret, because in order to not criticize a Coalition partner who did not follow the 
rules of engagement, they just decided to sweep it under the rug. I discuss at the 
end of the paper my perception of Iraqi views as a result of my trips to Iraq. 

At the macro-level, I talk about what I call the "reverberations of military 
operations" to expand our definition of collateral damage. And here I look at 
remnants of war which Colonel Finch described in terms of the horrific land mine 
problem that we are facing worldwide. In the Gulf War, I do not need to tell you 
that the remnants question was enormous. It just so happens that when you have 
1 .2 million soldiers and 14,000 armored vehicles on a battlefield, they leave behind 
a lot of garbage. It is just unavoidable. Nevertheless, a lot of that remnant is toxic 
and some of it is explosive. The Gulf War saw the largest use of cluster bombs in 
the history of warfare, some 60,000 cluster bombs dropped from the air, or 
approximately one third of the munitions dropped from the air. It is estimated, 
with a conservative figure of 3%-5% duds, that somewhere around 2.7 million 
bomblets from cluster bombs were left behind. That is approximately the same 
number of mines that were left behind in Kuwait. 

In my paper I talk about the remnants of war in the context of the "toxicity of 
the modern battlefield" and I use the term "toxicity of the modern battlefield" 
because of the latest view of the "Gulf War syndrome", and I say the latest view 
because maybe next week's view will be different. It is a kind of soup, if you will, 
a toxic soup. The common thread which seems to run between these syndromes, 
and there are more than one, is that most of the soldiers who are showing these 
symptoms were exposed to a variety of substances, including vaccines and chemical 
antidotes, as well as other highly toxic materials. One of the substances that the 
National Science Foundation pointed to in their report, as did the Rockefeller 
University in their report, was paint. I am a former Army guy and as any of you 

Panel Discussion 167 

who are former Army guys know, when you paint tanks or Army vehicles, it is 
done in an airtight environment with tremendous attention paid to human 
exposure because of the high toxicity of anti-reflective camouflage paint. In the 
Gulf War a lot of expedients were used in order to do this same thing. It is not 
coincidental, therefore, that many of the people who have been exposed to "Gulf 
War syndrome" are from supply and services units, as opposed to those who were 
in combat units, because those in supply and service units tend to be exposed to 
more toxic materials. I am talking about the whole gamut, from lubricants, to 
paints, to solvents, etc. Now, you may think that the "Gulf War syndrome" is pretty 
far afield, but I do not think you can pick up many newspapers in a week's time 
in America and not read one or two articles about "Gulf War syndrome." It seems 
to have evoked enormous emotional energy on the part of veterans and has 
collected a combination of former POW/MIA activists, UFO activists, antiwar 
activists, and environmentalists. Actually, the environmentalists seem to stay away 
from the Gulf War syndrome issue because it has to do with the military, and they 
hate the military. Nevertheless, the reverberations, the unknowns, the 
combination of factors, is what is interesting about the "Gulf War syndrome." 

When we talk about "long-lasting" and "long-term," we are talking about 
decades. So even what Mr. Harper said this morning, about how we are going to 
determine what the environmental effect of Operation Desert Storm was by 1997, 
is absurd. We are just now beginning to see Kuwait's data about the health effects 
of the war, just now. Kuwait had a conference in December 1994, where it first 
began to reveal some resultant health statistics — respiratory diseases up 50 
percent, child and infant mortality up something like 25 percent from prewar 
levels. Are these attributable to the environmental decay that occurred in the Gulf 
War? We do not know, and we are not going to know for some time. 

Reverberations to me are also important because it is a new fad within the U.S. 
military; this fad called information warfare. I think the Air Force calls it "parallel 
warfare" and I heard General Linhard refer to it this morning as "strategic 
paralysis." Everybody has a term for it now. Information warfare is systemic 
warfare, if you will, an attempt to conduct military operations so as to have a 
systemic effect on the enemy. The idea is that our societies are becoming so tightly 
inter-woven and interconnected; that communications and electronics and 
electricity are so tightly inter-woven, that to disrupt those aspects of society is to 
have a greater military effect than actual physical destruction. You see this coming 
out of the Air War College at Maxwell Air Force Base. You see this coming out of 
Joint Chiefs of Staff Memorandum of Policy - 30 (JCSMOP-30). You see it coming 
out of the Information Warfare School at the National Defense University. This 
theory, the thinking, about reverberation and the interconnectedness of society, I 
find useful and interesting because in the Gulf War the actual prosecution of that 
conflict was done with the intent of having that reverberative effect. And here I 

168 Protection of the Environment During Armed Conflict 

refer to the bombing of electricity, the bombing of the national electrical grid in 
Iraq to have a military effect. The fact of the matter is that you cannot show that 
it had any military effect. The Gulf War Air Power Survey concluded that it is not 
possible to demonstrate that the destruction of Iraqi electricity had any impact on 
command and control, or air defenses, or chemical or biological weapons. It had 
a presumed effect but not a proven effect. A recent article in the Journal of Strategic 
Studies by Dan Kuehl, who is a professor at the National War College and who 
was a member of "Checkmate" during the Gulf War, concludes that neither in 
Vietnam, Korea, nor in the Gulf War can one conclude that the destruction of 
electricity had any effect. But what was the reverberating effect on the civilian 

The reverberating effect was that some of the very targets which were proscribed 
by international law, some of the very targets which the rules of engagements stated 
could not be attacked — water being the particular one — were effected. As they 
found on 18 January, the day after the first day of bombing, all of a sudden CNN 
was reporting that the water was off in the hotel. And I have anecdotes of guys 
sitting in "Checkmate" in the Pentagon running around saying, "Did you think 
that the water was going to go off?" And, they said, "[Expletive deleted], we never 
thought that the water was going to go off." But, all of a sudden, they found that 
by the systemic attack on electricity, water distribution, water purification, and 
sewage treatment were similarly effected. So a target which was not physically 
attacked was disabled by the destruction of electricity. 

The impact on the civilian population is, of course, in dispute. Most 
demographers argue that from 1991 to 1994, 140,000 Iraqi's died in excess of the 
number that would have died under normal demographic conditions — 140,000 
people. Now the Air Force argues this figure is not attributable to electricity. It is 
attributable to sanctions; it is attributable to the [expletive deleted] life in Iraq; it 
is attributable to the lack of food; and it is attributable to war damage. But, if we 
are talking about environmental destruction; if we are talking about any sensible 
reason why you restrict environmental destruction, it is because of the effect that 
that environmental destruction has on people. And, as I sat here as a true-blue 
tree-hugger, listening to the two previous presentations about the need to protect 
marine mammals and endangered species, and all that, I saw a lot of chuckling in 
the room, and I join you. But the fact of the matter is that environmental protection 
is about the sustainment of human life, and that may relate to preserving 
bio-diversity, and preserving an ecological balance, and preserving the natural 
environment in a state which will sustain human life. But, when we make an 
evaluation of the environmental effect of warfare, when we talk about the 
environmental impact, we have to ask what was the environmental impact of the 
oil fires in Kuwait? What did it do to the Kuwait people? What did it do to their 
ability to sustain their life in the long-term? And here, ironically, I would have to 

Panel Discussion 169 

say that other than the spotty health statistics which we are just beginning to see, 
the answer is "not very much." Kuwait is now producing oil at a level of 
approximately 70 percent of what it was producing pre-war and because of many 
of the factors that Ron DeMarco described in his presentation, the oil spills seemed 
to have been mitigated — certainly not to the levels that would have been required 
in the Exxon Valdez or the Amoco Cadiz. But, CNN is not there any more; so we 
do not have to look at it. The Kuwaiti and Saudi interpretations of the level of 
environmental remediation that is required is different than ours. They are willing 
to live in that environment, but live they cannot. 

Now we heard a lot this morning about the Iraqis this and the Iraqis that. I 
spent a couple of months in Iraq since the war, on three trips, as a part of the 
Harvard Study Team. In August 1991, 1 was there for a month and in 1993, 1 was 
there for a month. I had an opportunity to talk to Iraqis and to interview them and 
to ask them "why." I seemed to have gotten three both direct and elliptical 
responses. The first thing that all Iraqis say is, "What we did is no worse than what 
you did." So I say, "What did we do?" And they say, "You bombed nuclear power 
plants. You bombed chemical weapons facilities. You bombed irrigation barrages. 
You bombed bridges. You bombed urban areas. You used fuel-air explosives and 
you used napalm." All of the things that you read in the news, the Iraqis read it as 
well. So when the New York Times printed an article that said depleted uranium 
is a problem in Iraq, the Iraqis said depleted uranium is a problem. When I asked 
them how do you know epidemiologically that it is a problem their answer was, 
"We read it in the New York Times." They could not produce evidence of higher 
incidence of cancer; they could not show that there was even any diagnostic effect, 
but there was a presumption. 

Second, there are sufficient documents now that have been released, Iraqi 
documents, captured in the Gulf War, that conclusively show that the intent of 
Iraq's destruction of the oil wells was vindictive and had no military purpose 
whatsoever. I have them in my possession. When I hear you folks, U.S. government 
lawyers, argue that the Iraqi destruction of the oil wells in Kuwait had some 
military effect, or that it had a presumed military value, I just am stunned. The 
documentation is there. The Defence Intelligence Agency has in its hands Iraqi 
documents that show that in the second week of August 1990, less than a week 
after invading Kuwait, the Iraqis began to wire together the oil wells to explode 
them as a totally vindictive measure if they were expelled from Kuwait early. The 
documents are there, the Iraqi documents are available and yet for some reason, 
which I do not fathom or understand, in the Conduct of the Persian Gulf War 
report, the Title V report, and in the presentation by General Linhard this 
morning, there is this hint that perhaps what Iraq did was justified, and here I will 
get back to effect and impact. It may have had some military effect but to argue 
that that was the intent behind what Iraq did is really grotesque. When I have 

1 70 Protection of the Environment During Armed Conflict 

shown those documents to Iraqi officials, their answer is, "What the military does 
is not what the Government does." 

Number three. What all Iraqis seem to say is that the things that they did had 
an environmental impact and were extraordinary but that they were "necessitated 
by the situation." I asked, "How does that comport with your acknowledgement 
that destroying the oil wells was not done to complicate the targeting of your 
forces?" What does "necessitated by the situation" mean? And their answer was, 
"Our military operation was to destroy Kuwait. Therefore, we destroyed the wells 
because that was what our military operation was." Is that a violation of 
international law? Yes. But did they see it as being a part of their military 
operation? Yes. That is what they were directed to do. If they were forced to 
evacuate from Kuwait, their mission was to destroy the infrastructure. 

Next, for those of you who question whether others recognize international law 
or understand it, I think the Iraqi case is also interesting and instructive. Whether 
you believe that CNN was a stooge in the Gulf War, or believe that the news media 
did the Iraqi's propaganda for them, the fact is that on 21 January 1991, when the 
Iraqis took Peter Arnett to Dour, a village in northern Iraq that was flattened by 
a B52 bombing attack and was first revealed on TV, or when the Iraqis took Peter 
Arnett to the baby milk factory, or to the Mosque, or to this place, or that place, 
they knew enough to distinguish that those were the places that suffered collateral 
damage. The Iraqis never took CNN to military targets, including electrical power 
plants. They never took CNN to oil refineries. They never took CNN to 
government ministries in Baghdad. They took them to the places that anyone who 
has half a brain, who is not just blinded by thinking the Iraqis are all liars and 
therefore should be ignored, would accept as cases of legitimate collateral damage. 
Now the U.S., of course, had an explanation for each case. Nevertheless, it 
demonstrates that the Iraqis understood what they were doing; they understood 
the cases. And similarly, consider the acts of perfidy that Iraq perpetuated in the 
war, such as the case where they created false damage, and the case where they 
reversed their tank turrets. When I ask the legal people in the Iraqi foreign ministry 
about them, they pulled out their International Committee of the Red Cross 
(ICRC) manuals and showed me how those cases were legal. They argued that these 
were not acts of perfidy; that it is not established in international law that you 
cannot turn your tank turrets around. When I asked why they turned their tank 
turrets around they responded, "Because they feared U.S. lasers were going to be 
directed at the range finders on their tanks and, therefore, that they did not want 
to have their optical systems facing forward toward the U.S. forces. 

What do I conclude from all of this? Well, in my paper I point to all of these 
controversial weapons and controversial practices and the political constraints, 
either because of public opinion or because of internal pressure, that seems to have 
been brought to bear in each case. To conclude, I generally agree with the Mr. 

Panel Discussion 171 

Harper; the law seems sufficient. The basic rules of proportionality and the overlap 
of these various measures seems sufficient. Does that address Mr. Harper's own 
argument that enforcement is the problem, when we are the ones that have failed 
to enforce the law when others broke them? The answer is no. But when the true 
record of the Gulf War is looked at, when the true examples that challenge 
international law are looked at, it seems to me that we come up with a very different 
conclusion. Thank you very much. 

Vice Admiral Doyle, Jr.: Thank you Bill, for that very provocative and insightful 
presentation. I told you he would talk about anything. It is my pleasure to now 
introduce the commentator for our panel, Dr. Arthur Gaines. Arthur is a Research 
Specialist with the Marine Policy Center at Woods Hole Oceanographic Institute. 
He conducts research on ocean economics, law, policy, and management. He is the 
author of several papers on biochemistry and estuaries in the coastal ocean. Arthur. 

Dr. Arthur G. Gaines, Jr., Woods Hole Oceanographic Institute: Thank you 
Admiral Doyle. I would like to start by telling you something about myself and 
my own viewpoint. My background is in the environmental sciences and 
oceanography. I am interested in how scientific information can be brought to 
bear on making better decisions. At the same time, I would call myself an 
environmentalist. I give more money than I like to think about to environmental 
groups, principally land preservation groups and environmental education groups. 
I find that the professional end of what I do is very often at conflict with these 
sentiments and often puts me on the opposite side of the table from people who 
call themselves environmentalists. I see a number of inconsistencies among 
so-called environmentalists or people who espouse environmental concerns that 
make me feel that, in a way, they are their own worst enemy. For example, everyone 
is concerned about oil spills, but when was an environmental impact statement 
performed on the use of asphalt all over the world for paving roads? That is a lot 
of oil. If people see oil on the beach, it is a crisis. But what about all the roads that 
are made of oil? What about farming? What about an environmental impact 
statement on farming? Farming is one of the most destructive environmental 
activities around. The entire bio-diversity of farm land, in essence, is reduced to 
one species. Wheat, rice, whatever is growing. The use of pesticides is very 
damaging to normal insects and organisms that would inhabit a farmed area. The 
use of nutrients has a very widespread impact on the quality of drinking water, the 
water quality of adjacent ponds, the receiving waters, rivers, and so forth. There 
are places in the American West, in the farm belt, where the ground water 
concentration of nitrite fertilizer is sixty parts per million. That is six times greater 
than the drinking water standard permitted by the Environmental Protection 
Agency. Yet you do not hear people saying farming is an environmental problem. 

172 Protection of the Environment During Armed Conflict 

Before I get into the substance of my comments, I would like to point out that 
people feel that environmental protection is consistent with the best human 
interest, while I would say that they are often at odds. Farming is not consistent 
with the best environmental concerns. Farming destroys the environment. People, 
especially environmentalists, but everyone to a certain extent, have a feeling that 
nature is peaceful and that we should seek to emulate nature for peace and 
harmony. I took a course in parasitology years ago in college and the quote in the 
front of that book by the author, Chandler, was that we think of nature as peaceful 
and we seek to emulate it, yet in every meadow, in every stream, under every rock, 
in every creek, there is murder, destruction, and suffering going on all the time. I 
think that is a more balanced view than the idea that nature is very peaceful. That 
concludes my introductory comments. Maybe you will see where I am coming 

Secondly, I would like to tell you something about the institution I represent 
because I do not ordinarily meet with a group like this and I thank Professor 
Grunawalt for inviting me. Before I begin, I would like to congratulate the panel 
on their very interesting papers. Every one of them was interesting and, in fact, I 
have noticed in the course of the day, that there is really very little distinct 
disagreement among them. I hear people falling in different places on the 
spectrum, but other than the outcome of the Ottawa Conference, I do not see any 
distinct disagreements. One of the advantages for someone like me to be here is 
that it provides an opportunity to get to know some of you and the organizations 
you are with, and vice versa. 

I am with the Woods Hole Oceanographic Institution. Most of you who know 
of the Institute think of it in terms of basic ocean research. Our organization 
obviously has an administrative layer that provides administrative services, that 
operates our ships and submersibles, and that administers research, and so forth. 
The level at which research and creativity are accomplished, and the level at which 
proposals are written and sent out, is the next layer down. This second layer 
consists of 250 people, approximately, who do work in physical oceanography, 
biology, chemistry, geology, and ocean engineering. We have a third layer with 
Centers, which tends to bring those disciplines together again in interdisciplinary 
kinds of work. I am with the Marine Policy Center. At the present, we consider 
ourselves as sort of the "proto-department". We may become the sixth department 
at the Institution at some point. The Marine Policy Center, unlike all of the other 
departments that deal with earth sciences and engineering, incorporates the 
disciplines of law, economics, policy analysis, science and technology, and we 
conduct work on the law of the sea among other topics. My own background is in 
biology, geology, and oceanography. My work focuses on how marine science and 
technology bears on the decision-making process for use of the environment, for 
use of the ocean, and for its protection. 

Panel Discussion 173 

My terminology in some of these discussions of military matters could be way 
off because I am not use to talking about these things. If it is, I will my correct 
paper for the published version. To evaluate the environmental impact of military 
systems, of having a military, one needs to consider the whole thing, in essence, 
from the beginning to the end. I see really two separate categories of environmental 
impact. One of them is associated with military preparedness, which involves all 
of the industrial support, research and development, production, transportation, 
storage, and so forth, associated with providing the military with the wherewithal 
to defend the nation, and it consists of non-warlike military operations. This would 
include training camps, operation of bases, storage of ordnance, training, and also, 
activation and deployment of forces. It does not involve any armed conflict. This 
category of military activity is typically conducted in a climate where, since there 
are no casualties, no one is upset, where there is generally more clear thinking. 
There can be a state of what you might call — efficiency. Materials are used 
efficiently and carefully, compared to what it might be under other circumstances. 
What I am saying is that environmental preservation, environmental regulation, 
and environmental protection are all consistent with this activity. There is no 
reason to believe that it is not possible to be responsive to these constraints. From 
what our military speakers here have said, the comments that I have heard today 
on that military preparedness side, we can talk reasonably about environmental 
protection in association with military activities. But, consider military activity 
that involves armed conflict. Under conditions of armed conflict, the stable mode 
I would propose is one of maximizing power. Even in the case of limited armed 
conflict, you would still see a tendency to maximize the delivery of force and power 
within the boundaries of the limits imposed by law and policy. Under those 
circumstances there are casualties, there are more likely to be accidents, things are 
likely to happen fast, decisions need to be made quickly, alternatives evaluated, 
and so forth. Nevertheless, in the case of limited armed warfare, the conflict is still 
limited. There is rational thought, and to some extent, but perhaps not as great as 
in the military-preparedness side of the equation, environmental protection can 
be a reality. I think what we have heard today confirms that it is a reality under 
those circumstances. Now, when we speak of unlimited armed conflict, what I call, 
total warfare or strategic scale conflict, in which we are talking about employment 
of intercontinental ballistic missiles, hundred megaton scale nuclear weapons, and 
the like, in that context we can no longer talk about environmental protection. If 
the situation gets to that level, there is no discussion of protecting the 
environment. It no longer makes any sense. 

We have not heard too much today about the environmental impact of the 
industrial military support infrastructure, and I am not going to try to do it myself. 
The whole nuclear fuel cycle is one which we have discovered has fundamental 
environmental significance — the storage of waste products, their transport, 

174 Protection of the Environment During Armed Conflict 

reprocessing, accidents, and so forth. With respect to weapons development 
strategy, research and development of some weapons seems to be completely 
inconsistent with the idea of minimizing adverse environmental impacts. For 
example, one of John Craven's examples is the low altitude nuclear ballistic missile. 
It is, in essence, an unshielded nuclear reactor carried in a cruise missile that lays 
down a lethal 500 rad swath of radiation beneath it as it cruises for months at a 
speed of Mach 3.5. Now that weapon could not even be tested without having a 
hideous environmental impact. According to John Craven, apparently it has been 
developed, and there is one in a lead crypt somewhere. My point is that important 
decisions need to be made about research and development of weaponry which 
will have significant environmental impact. 

Military operations which do not involve armed conflict, including training, 
readiness, and deployment, as well as the operation of military bases, have not, in 
the past, been conducted in ways that are always concerned with environmental 
impact, although we are improving in this area. Similarly, the activation and 
deployment of forces is often associated with an increase in environmental 
accidents, as I mentioned earlier. Here too, military activity could be made more 
amenable to environmental protective measures. 

The ground water plume at Otis Air Force Base on Cape Cod is an example of 
a problem that started during the early part of World War II when Camp Edwards 
was used as a staging area to deploy troops. Hydrocarbons, nutrients, and other 
materials were dumped into the ground. The resulting plume is 11,000 feet long 
and has closed down one of the wells of the town of Falmouth. This is a problem 
that in the future we do not need to have. I am not inclined to go back and point 
fingers for something that happened fifty years ago; I do not think that is 
appropriate in any way, but we do not need that to happen in the future. 

Finally, with respect to limited armed conflict, there are at least three areas 
where there can be mitigation of adverse environmental impacts. One is in target 
selection. As an example, presumably you would not want to hit an active 
plutonium plant given the grave potential danger that the release of plutonium 
would have on the civilian population. There are other legitimate military targets 
that you would not want to hit as an environmental measure. Whether you did or 
not would depend on what the pros and cons were, the military advantages, and 
environmental disadvantages, and I think that there is room there for 
environmental concern. Such targets might include electrical grids, water systems, 
sewage treatment plants, transportation networks, communication facilities, and 
so forth. Whether you hit them or not may be a matter of debate, but there could 
be some environmental concerns expressed there. Civilian targets, such as the 
Bhopal-kind of fertilizer production plant, may best not be hit if you are concerned 
about the environmental consequences of doing so. 

Panel Discussion 175 

There are tactical methodologies that I have heard discussed here today that 
can avoid or minimize adverse environmental impact. For example, the capture 
of an oil tanker instead of its destruction. If it is possible to capture or disable it 
instead of sinking it, that has presumably a significant environmental 
consequence. A civilian population could be demoralized by information, rather 
than by destroying their city, possibly. Use of weapons that are not likely to have 
large collateral effect is a similar methodology that we have heard a lot about today. 
In terms of specific weaponry used in armed conflict, we should consider the 
longevity of their environmental impact when evaluating the desirability of their 
employment. I would add remediation as a further consideration, which Mr. Arkin 
also mentioned. We should ask ourselves, "How easy will it be to clean up this 
situation? How easy will it be to prevent ongoing impacts?" 

I am supposed to know something about environmental impacts and I have 
only pessimism to transmit to you today on that issue. When we think about this 
subject we should recognize that there are hierarchies of organization in the 
environment, the ecosystem being the largest. Habitats taken together, make up 
ecosystems and within each habitat are various communities, which, in turn, are 
assemblages of different kinds, different populations of organisms. A population 
is an assemblage of the same kind of species and so forth going down to the gene. 
Acute environmental impacts, those in essence that involve very quick death, are 
the only category of impacts in all of those systems that we have any kind of handle 
on. We use measures as LD-50, lethal dose 50. If you add different amounts of 
chemicals or toxicant, or you change the temperature in increments, at what point 
do you see death of the adult or death of the juvenile or collapse and loss of the 
community, and so forth. There is some hope in understanding acute impacts and 
having something to say about them. But, when it comes to chronic impacts 
involving increased susceptibility to disease or impaired feeding or impaired 
competitive ability of a species as a result of something that has happened, these 
are very difficult, if not impossible, to predict. They may take months or years or 
decades to express themselves in any particular case. Take, for example, the decline 
of coral reefs. No one knows why coral reefs in some areas are declining. This 
decline is not sudden, it has happened over a period of decades. 

Another way to gain some perspective on all of this, and to understand the 
resilience of individual organisms and communities, is to look at natural disasters. 
Obviously, natural disasters have been happening for hundreds of millions of 
years. And obviously, people have little or nothing to do with any of them, except 
possibly fire. What I have tried to do in my paper is say something about the 
frequency with which natural disasters occur, the area that might be affected by 
them, and something about the longevity of their impacts. I make a totally gut 
impact assessment using an arbitrary scale of one to ten, where one is a very small 
impact and ten is certain major destruction. As an example, at least every few 

176 Protection of the Environment During Armed Conflict 

months some place is hit by lightning. An individual lightning strike would affect, 
generally, a small area. You could be very close to a bolt of lightning and you would 
not be affected. The longevity of the adverse environmental impact of a lightning 
strike might be as long as one year. Maybe you could see where lightning struck 
or split a tree or destroyed a house a year later. It's immediate impact could be 
either very little or it could kill people. Conversely, tornadoes are very severe 
natural events that may have a war-like impact. Certainly volcanoes do. In the 
Galapagos Islands, volcanoes have spewed molten lava over 100 square miles of 
land. Now if you have hundreds of square miles of land buried in burning lava you 
could have a very serious impact on birds and tortoises, and so forth. Earthquakes 
may cause widespread loss of life, as did the recent Japanese earthquakes. The 
destruction in San Francisco, California resulting from the earthquake of 1989, 
involved major losses in civic infrastructure. Floods can be equally devastating. 
The hurricane now battering the Virgin Islands also has a war-like impact. A 
meteor impact may have a huge impact on the natural environment with 
nuclear-like consequences, that is a nuclear winter-like scenario, darkness, dust, 
loss of huge populations of species throughout the world. The longevity of the 
meteor impact that killed off the dinosaurs a hundred million years ago is still 
here. Mankind probably would not be here if that meteor had not hit. We are still 
living with that impact. I would say that nuclear war, total war, would have an 
impact like that meteor impact. The point of this is that if we look at the range of 
natural disasters, it does not provide rational arguments against warfare. The range 
of natural disasters is about as bad as warfare. Yet, natural systems recover from 
fire, flood, hurricanes, and so forth. When you destroy a dam, what you are really 
doing is turning a situation back to what it use to be. Destruction of dams is said 
to be environmentally destructive, but building the dam in the first place was 
environmentally destructive because it drowned everything in the upstream 
valley. Destroying the dam returns the valley to what it use to be, although it has 
horrible short-term consequences for people. 

One final point. The direction of environmental concerns and environmental 
doctrine around the world is getting increasingly stringent and will have an 
increasing impact on the military. The nebulous concern with environmental 
protection that we see now is almost nothing compared to what is coming. 

Let us look for a moment at the "precautionary principle" of Agenda 21. In its 
most stringent wording it turns around the concept of the environmental impact 
statement to look at it the other way. It is not saying that in order to do something 
you have to examine the circumstances and see whether it may or may not have 
an adverse environmental impact. What the precautionary principle says is that 
unless you can prove that there is no impact in advance you cannot go ahead with 
the proposed activity. This would typically be applied to industrial development, 
and so forth. But, can you imagine waging warfare under circumstances where you 

Panel Discussion 177 

have to prove that the armed conflict will not have an adverse impact on the 
environment in advance? Another emerging doctrine that is becoming 
increasingly common is the notion that the "polluter pays." If an industry has 
damaged the environment and it can be demonstrated that it has damaged the 
environment, it must pay to put things right. That kind of thinking presumably 
can have a huge impact on the military. There is also increasing provision for wide 
public participation in the permitting or evaluation of environmental impacts. I 
am not sure that we will necessarily see increased public participation in military 
activities as well, but that is probably going to be a problem in the future. 
Requirements for research and monitoring, and financing that research and 
monitoring, are already happening but are likely to increase and become greater 
in the future. 

I would just close by again thanking Professor Grunawalt and the panel and 
Admiral Doyle for the opportunity to speak. 

Vice Admiral Doyle, Jr.: Thank you, Arthur. We are now open for questions from 
the floor. 

Dr. Glen Plant, London School of Economics and Political Science: I am going 
to attack Bill Arkin. Bill, for a tree hugger you take a very anthropocentric view 
of the environment don't you? You are looking at human health aspects alone. 
You are not taking into account the biological or the aesthetic aspects. And, you 
are saying that what we did to the Iraqis was worse than what the Iraqis did to us, 
without looking at the intention behind the acts and without looking at the harm 
that was done overall, which was surely the only fair process to undertake. 

Mr. Arkin: I do not know that I said that what we did to the Iraqis was worse than 
what they did to us. I do not believe that, and if one has an anthropocentric view 
of the world, obviously aggressing upon one's neighbors and violating all of the 
standards of conduct in law are much worse than defending against that aggression. 
So that is my answer. As for my anthropocentric view of the world, I guess that's 
why I do not work for Greenpeace anymore. 

Vice Admiral Doyle, Jr.: Any other questions? Yes, Captain Rose. 

Captain Stephen A. Rose, JAGC, U.S. Navy, U.S. Atlantic Command: Also a 
question for Mr. Arkin who struck a lot of sparks here. I get the sense that your 
confidence in the "environmental common sense" is just that. That there is an 
ethos, or a common sense in the public weal that acts as a self-regulating 

178 Protection of the Environment During Armed Conflict 

mechanism and that a lot of what we are about here seems to be a kind of nit-picking 
or juridical soul-searching that is unnecessary. Could you elaborate on that a bit? 

Mr. Arkin: A friend of mine who read my paper said, "You do not want to say this 
Bill." One of the points he made was that in real wars, not the Gulf War, maybe 
these weapons or these methods or means of warfare would be used or people would 
perceive their use to be important because they were connected to military 
necessity. Whereas, in the Gulf War, surplus military capability allowed the 
Coalition to have many more choices and, therefore, it's compliance with the law 
was easier to ensure. I guess that is a flaw of my argument. Nevertheless, I think 
it is important to argue that environmental protection is codified in our behavior 
and actions, regardless of what U.S. interpretations of Additional Protocol I are 
or of what the law might be. If we have virtual compliance, to use a computer term 
that is popular today, it is important to codify that virtual compliance. The fact of 
the matter is that for political and public relations reasons we did not do certain 
things because the political leadership and military leadership perceived that 
doing them would have an adverse effect on public opinion. To demonstrate and 
promote that, I think, enhances the cultural norm because it creates virtual 
compliance. I would prefer to see that napalm or fuel-air explosives, or certain 
types of weapons or methods of warfare not be applied because of their adverse 
humanitarian effect and limited military utility rather than to argue endlessly 
about whether we should have better laws for that same effect. I think in the court 
of public opinion and the court of the real world, certain things are not done 
because of the perceived impact, as opposed to because of the letter of the law. 

Professor Christopher Greenwood, Cambridge University: I would like to 
startle Bill Arkin enormously by saying that I agreed with some of the things he 
said, not all of them, just some. I am quite sure that had we been able to put together 
a symposium that also had some 20 representatives of Greenpeace on one side of 
the room, probably not the same side as most of the rest of us, and 20 or so 
representatives of the Iraqi Government, they would currently be attacking Mr. 
Arkin's paper also. Whether that would make him feel better or worse I do not 
know. I would like to take up a point that Bill Arkin made and tie it into something 
that Dr. DeMarco said in his presentation and that is the very considerable 
difficulty of proving certain effects in times of war. Now, to some extent that is 
because unless you defeat your adversary completely, you just do not have access 
to the raw informational material at the end of the conflict. We do not know some 
of the effects that took place in Iraq because the Iraqi Government will not give 
us that sort of information, indeed, may well not have it itself. But, there is, I think, 
a very considerable danger in this area in taking received wisdom as though it was 
proven scientific truth and that was something that as a non-scientist, I found 

Panel Discussion 179 

enormously valuable in the two presentations about the impact of armed conflict 
on the marine environment. What you find, if you look at the history of warfare, 
is that certain assumptions are made about the effect of military operations, that 
is, what you could and could not achieve by way of bombing, or how accurate 
bombing was capable of being, et cetera. But what hatched in the First World War, 
and then carried through and was treated as though were written on tablets of stone 
in the Second, turned out to be totally untrue. Now that is the danger on one side. 
The danger on the other is that you take a case where you cannot prove conclusively 
what military effects were brought about by depriving the Iraqi armed forces of 
access to their ordinary electricity supply. You cannot prove what those effects are 
and compare them with observable collateral side effects of those attacks on the 
power stations. There is a danger in saying, "Well, here you have an unproven 
effect, here you have a proven one. Let us focus on what we can prove, and ignore 
the other side of it completely." That, I think, would equally be a very considerable 
mistake. So taking a single, isolated, provable part of the effect on the environment 
and discarding all of the much more difficult aspects would, I think, be to 
misunderstand the way in which international law requires us to look at the 
environmental effects of warfare. 

Professor Michael Bothe, Johann Wolfgang Goethe University: My question is 
for Bill Arkin. I am puzzled about the question of the role of law. Do you think 
that the fact that most of us do not kill has nothing to do with the law, just habits, 
and common sense? This seemed to be your implication, and being a somewhat 
self-respecting lawyer, this of course, is a stance that I could not accept. I think the 
role of law is to give some certainty of expectations, to put some order in social 
rules and that is a salutary role. Having said that, I know of course, that the 
motivation of a particular person behaving as he or she does is not exclusively 
inspired by legal considerations, it is a multitude of factors. It is culture, but please, 
the law is part of that culture and, therefore, it matters. I wonder whether you did 
not neglect some parts of this culture, which I agree with you, is changing indeed. 
That being so, I think what is necessary is a cool evaluation of what really happened 
and, therefore, I think the exchange is particularly valuable because what used to 
be a traditional perception of admissible or non-admissible damage may not be 
admissible in the current circumstances, because the social conditions, the 
physical conditions, are changing. There are no more free spaces because the 
impact of the things we do is felt around the globe. If you hit the life support system 
of a big city, that is different from what it was even in the Second World War where 
the individual still lived in a context where life support systems of the big cities 
did not matter in the same way they do today. I think your paper has shown this 
quite well and in this respect I agree with you. Not any other. 

180 Protection of the Environment During Armed Conflict 

Dr. John H. McNeill, U.S. Department of Defense: I also found the discussion 
very interesting and, following on some remarks that Chris Greenwood just made, 
I would like to focus on what Mr. Arkin was referring to earlier as the ethic, as 
opposed to the law. We can and will argue about what the law is, but with respect 
to the ethic and the realization that many of the environmental effects of military 
operations are not proven — perhaps are unprovable and unknowable, at least 
during our lifetimes — it seems that the ethic operates in a manner which affects 
political self-deterrence, at least in examples that we are familiar with here in the 
United States. I think a comparable example to the environmental side was the 
self-deterrence that operated at the end of the conflict in Iraq. You will recall that 
the media was very interested in what was going to happen with respect to the 
so-called "highway of death", which many of us remember quite vividly. That too 
involved an ethic that resulted in political self-deterrence. Similarly, we did not 
take actions in reprisal against Iraq for the wanton destruction of the 732 well 
heads. The law might have permitted us to do that, but we did not do it. Reprisal 
action in that instance was seen as something that was, as a matter of public policy, 
unacceptable. So I am wondering if the suggestion made by Mr. Arkin, that we 
ought to, in affect, codify these rules, is meant indirectly as a suggestion that the 
United States, and perhaps other members of the Coalition in the Gulf, other 
Western countries particularly, might similarly be self-deterred and, therefore, 
would benefit from rules that they were forced to observe as a political matter, 
being accepted and forced on others, even though there might not be the scientific 
ability to appreciate what the threat to the environment would be from the actions 
that would, thereby, be prohibited. It is an interesting proposition. Would you 
care to comment? 

Mr. Arkin: Let me just answer Professor Bothe first and say that I spoke that the 
law was adequate. I did not say that it was irrelevant. I just felt that the existing 
law provided the framework for everything that has been discussed today and I 
have heard nothing yet that says to me that what we have discussed does not fall 
within the framework of existing law. That is all. I meant adequate, not irrelevant. 
I think that enforcement does relate to deterrence and I will give you an 
example. Since the end of the Gulf War, the U.S. Government has been arguing 
very vociferously that Iraq is practicing a form of ecocide in the Southern marshes 
by diverting water away from an area that sustains an indigenous marsh life 
culture. The CIA has issued reports; a lot of attention has been paid to this. 
Madeline Albright has brought it before the U.N. Security Council. When I was 
in Iraq in 1993, 1 was taken on a Government trip to the marshes, including an 
Iraqi helicopter ride — which was scary in its own right, because I thought I might 
be shot down in the "No Fly Zone." One of the things that the Iraqi environmental 
people, and there are Iraqi environmental people, argued was that as mere 

Panel Discussion 181 

functionaries in a scientific ministry they did not really see why their changing 
the course of the Tigris River and their various canaling and channeling irrigation 
projects, as they called them, could possibly be construed by the United States as 
a violation of ecological international laws. They said, "Look at what Iraq did in 
the Gulf in terms of blowing up all those Kuwaiti oil rigs, et cetera. The 
international community never took any action as a result of what we did to the 
environment there." So their attitude was, "What we do to our environment is 
different from what we might do to your environment and since there is not 
enforcement of some standard practice that says we cannot do something to our 
own environment, than we just assume that what we do in our country is our own 
business." A part of my answer to you would be that I can show that the lack of 
any kind of international enforcement had a real impact in that the Iraqi's 
perceived that they might get away with something that they otherwise might not 
have. Another thing I would say would be that all of this discussion of the Gulf 
War is both instructive and irrelevant because of the many unique qualities of that 
conflict and the fact that we had choices to make there that we may not have to 
make in the future. It was a type of conflict where you could actually sit and choose 
targets to hit, sit and choose weapons to use, and sit and decide whether you are 
going to launch a ground war or not — I think Larry Freedman called it "war by 
appointment." It seems that that is war of a very different quality, where a lot of 
these issues of reprisal and heat of passion and what is done when you feel like you 
are losing a war or when you feel like you really have to do something to give 
yourself a step up in a war, does not really come into play. That was the situation 
in the Gulf War, at least on our side. That, I would say, is in agreement with 
Professor Bothe's point that the law is really important. You need to have legal 
standards, even in this nice casual war, to say these are still things that if this were 
a heated, passionate war, one could not do and it is unfortunate in that regard that 
there are a lot of Iraqi's running around, including the Iraqi leadership, who in 
1995 feel that they got away with murder, literally. The U.S. Government, I think, 
has been a part of that unfortunate policy. 

Vice Admiral Doyle, Jr.: We have to close our discussion here and I would like 
to thank the panel. 





Chapter XIII 

Oceans Law, the Maritime Environment, and 
the Law of Naval Warfare 

Professor George K. Walker* 


Persian Gulf armed conflicts during 1980-88 (the Iran-Iraq conflict) and 
1990-91 (the Gulf War between Iraq and the U.N. Coalition after Iraq's 
invasion and occupation of Kuwait) have resulted in environmental degradations 
of Gulf waters and the land and airspace over States party to the conflicts. Perhaps 
the worst of these was what a Time writer called a "Man-Made Hell on Earth" 
when Iraq dynamited over 550 of 684 producing Kuwaiti oil wells in early 1991 
during the Gulf War. 

This paper does not address environmental issues related to land and air 
warfare. Rather, the ensuing analysis explores the maritime aspects of these wars, 
i.e. the "Tanker War" in the Persian Gulf during 1980-88, and conflict at sea during 
the Gulf War of 1990-91, in their environmental contexts. 

In 1983, Iraqi rocket attacks hit Iran's Nowruz offshore drilling facilities, 
causing a 20-million barrel oil spill into the Gulf. Although early reports that the 
slick had equalled the size of Belgium were later discounted, it was big enough to 
threaten Bahraini, Qatari and Saudi desalination plants before strong winds blew 
it offshore and partially dispersed it. Fish imports into the United Arab Emirates 
(U.A.E.) were stopped becuase of oil contamination in the fishing grounds. Iraq 
rejected Iran's request for a partial truce so that oil cappers could try to stop the 
2000-5000 barrels per day flow. The result was that the leakage lasted for nine 
months. This may have been in response to Iran's attack on Iraqi oil terminals 
and ports early in the war, which resulted in their closure. There are no reports of 
significant pollution of the Gulf resulting from these attacks. In 1986, Iraq 
bombed Iran's Sirri, Lavan and Larak oil terminals, and Iran attacked the neutral 
U.A.E. Abu al-Bakoush oil installations. In none of these cases were there reports 
of significant spillage into the Gulf. The next year, U.S. naval forces attacked 
Iranian offshore oil rigs used as an Iranian gunboat base in response to Iran's 
Silkworm missile strike on a reflagged tanker, 5.5. Sea Isle City, in Kuwaiti waters. 
There is no report of petroleum spillage on the high seas resulting from either 
attack. 7 

1 86 Protection of the Environment During Armed Conflict 

Tanker War shipping losses from attacks by both belligerents were another 
source of marine pollution during that conflict. Although most tankers traveled 
in ballast to the Gulf, they and incoming cargo vessels had bunker fuels aboard. 
All outbound ships also had bunkers aboard, and nearly all tankers leaving the 
Gulf departed with a full load. These vessels, as well as inbound and outbound 
cargo ships, were attacked by the belligerents. Iraq and Iran also laid naval mines, 
either initially set adrift or which came loose from their moorings. Several 
merchantmen, among them neutral flagged vessels, were mined. A U.S. warship, 
U.S.S. Samuel B. Roberts, was seriously damaged by an Iranian-laid mine in 1988. 
Iraqi aircraft attacked tankers escorted by Iranian warships, and both countries 
conducted land-based air attacks on merchant ships, primarily tankers, of neutral 
flags, some of which were under convoy by neutral warships. Iran used its surface 
navy to attack these vessels as well. The U.N. Security Council twice condemned 
these attacks and the result on the environment. In 1987, an Iraqi Mirage I aircraft 
mistakenly launched two airborne Exocet missiles at, and seriously damaged, the 
U.S. warship, U.S.S. Stark. Another source of marine pollution came from losses 
of naval vessels, principally those of Iran, hit as self-defense measures following 
attacks on U.S. naval vessels. The conflict was a major war, not a small one, 
particularly when the commitments of Iran and Iraq were measured. For the only 
time since World War II, deliberate, sustained operations were carried out against 
merchant ships. Iran and Iraq attacked more than 400 merchantmen, sinking 31 
with 50 more declared total losses. Write-off losses stood at nearly half the World 


War II tonnage sunk. The Second World War lasted for just under six years. The 
Iran-Iraq War ground on for eight years. The reason for the disparity between the 
relatively small number of ships lost and the huge tonnage losses is, of course, the 
larger displacement of merchant vessels in the 1980s. The possible result when a 
tanker was attacked during 1980-88 was the risk of a considerably larger oil spill 
for each ship attacked than during World War II. 

Ten days after the U.N. Security Council-authorized Coalition action to drive 
Iraq out of Kuwait began during the Gulf War, Iraq opened valves of its Mina 
al-Bakr offshore terminal and occupied-Kuwait's Sea Island terminal. Iraq also 
dumped oil from five tankers at Mina al-Bakr. From 3 to 16 million barrels of oil 
flowed into the upper Gulf. When the oil reached Arabian peninsula shores, 
thousands of migratory birds died in the muck. Fishing grounds were ruined. The 
food chain for all forms of Gulf wildlife was interrupted. Beaches were made 
unusable for the tourist industry. Saudi desalination plants, which supplied the 
civil population and Coalition military forces with drinking water, were 
threatened. Coalition air forces stopped the flood by bombing the pumping 

There was little destruction of merchant shipping during the 1990-91 Gulf War. 
The U.N. embargo and authorizations for interception and diversion of Iraq-bound 

Walker 187 


vessels did not result in any attacks. Only a few Coaltion warships were damaged, 

mostly by mines, and although Iraqi naval forces were destroyed, they were mostly 

1 \ 
small ships. Most vessel-source pollution came from the Mina al-Bakr tankers. 

As both conflicts make clear, if the belligerents who initiated environmental 
degradation had hoped to improve their fortunes on the battlefield by these tactics, 
any optimism went a-glimmering. The Iran-Iraq war wore on for five more years 
before ending in mid- 1988. The Iraqi attack on Nowruz was not a war-stopper, 
and leakage from stricken merchantmen did not even receive media attention. 
Similarly, blasting oil wells and dumping Kuwaiti crude into the upper Gulf 
during the 1990-91 war did not influence events appreciably. 

Although environmental damage and restoration were not as long-lasting as 
first predicted, the economic loss was staggering. Oil spills and resulting slicks 
dwarfed the size of previous accidental spills. Perhaps 24 times as much oil as was 
released in the 1989 grounding of Exxon Valdez in Alaska's Prince William Sound, 
went into the Gulf because of Iraq's actions in 1991. The 1978 allision and 
breakup of Amoco Cadiz resulted in a spill a fourth or less of Iraq's deliberate 

17 r 

discharge in 1991. There is no account of how much leaked from damaged or 

sunken ships during the Tanker War, but since many merchantmen that were hit 

carried petroleum, it may have been considerable. Damaged or sunken warships 


undoubtedly leaked bunkers into the Gulf. 

The foregoing survey does not include oil going overboard in deballasting or 
from land-based sources not connected with armed conflict. Worldwide figures 
for this pollution rose from about a million metric tons annually in the 1960s to 
nearly 7 million tons in 1973, with over half from land-based sources and 35 

percent from ships. Two-thirds of the latter have been said to be from "routine 

tanker operations." 

Environmental degradation during international armed conflict is not a new 

phenomenon. Pollution of the sea on a measurable scale during warfare at sea has 

largely been an aspect of Twentieth Century conflicts, particularly after oil 

replaced coal as the primary source of energy for steam-powered ships, and the 

world began to consume petroleum as the primary fuel for transportation, as a 

major source for heating, and an ingredient for plastics and other products. The 

Persian Gulf has been a particularly busy highway for transporting petroleum, 

since a high percentage of the Earth's proven reserves are within the territories of 


States bordering the Gulf. The problem of pollution of the oceans is not new or 
confined to the Gulf. However, the recent Gulf wars have merely underscored 
issues that have arisen on a worldscale basis, usually in the context of accidents 
through collisions or groundings of tankers. These accidents, like the loss of 
R.M.S. Titanic in 1912 and the resulting 1914 Convention for Safety of Life at Sea, 

have tended to be catalysts for treaties or other action to prevent recurrences. 


1 88 Protection of the Environment During Armed Conflict 

The world little noted warnings of the potential for environmental degradation 
of the seas before, during and after the Tanker War. However, there were 
numerous claims that Iraq had violated existing international norms, notably 
those in the Environmental Modification Convention and Additional Protocol 

2S • 26 

I to the Geneva Conventions of 1949, which declare principles of humanitarian 
law during armed conflict. The U.N. Security Council passed Resolution 687, 
declaring Iraq "liable under international law for any direct damage, including 
environmental damage and in depletion of natural resources, or . . . injury as a 

• 27 

result of [its] unlawful invasion and occupation of Kuwait." There were also calls 
in the United Nations and other quarters for action in the form of additional legal 

protections, e.g., a Fifth or "Green" Geneva Convention to protect the 

environment during armed conflict. The latter efforts largely came to naught, 

primarily because participants concluded that no new agreements were necessary 


if existing ones were enforced. The question of belligerents' culpability for 
environmental damage during international armed conflict at sea remains as a 
possible source of rhetoric, if not law, in future conflicts. Publication of the San 


Remo Manual in 1995 demonstrates that the issue remains alive in 

commentators' minds, as does this Symposium. 

This paper is a partial summary of principal findings of my research on this 
complex subject and is limited to the law of the sea, the oceans environment and 
how these sometimes overlapping bodies of law relate to the law of armed conflict 
at sea, i.e. the law of naval warfare. Land-based aspects of environmental issues 
{e.g., transborder air pollution), and problems related exclusively to land warfare 
or air warfare above the land, are not discussed. 

II. The Law of the Maritime Environment, the Law of the Sea, and the 

Law of Naval Warfare 

There is an enormous volume of law related to the maritime environment, most 

of it in treaties appearing since the 1958 Geneva Conventions on the Law of the 

31 32 

Sea. If international agreements related to conservation of marine resources or 

maritime safety are considered, insofar as observing these standards would 

promote a better oceans environment, there were scattered efforts at protection of 

the oceans well before 1958. The same is true with respect to the law of naval 

warfare, where treaties negotiated to regulate aspects of warfare or humanitarian 

principles to be observed during war derivatively benefit the environment, 

particularly when conflict at sea has impact ashore. Agreements of this nature 

include the 1907 Hague Conventions dealing with shore bombardment and mine 

warfare ; the 1925 Geneva Gas Protocol, whose prohibitions on gas and 

bacteriological warfare affect human and nonhuman inhabitants of the 

2C if. 

environment , the 1935 Roerich Pact protecting monuments, etc., ashore; parts 
of the 1949 Geneva Conventions ; and the 1954 Hague Cultural Property 

Walker 189 


Convention, which provides inter alia for safe sealift of protected objects. There 
is thus as deep a legacy of what today are called environmental concerns in the law 
of armed conflict as those agreements dealing with pollution or species protection, 
which today might be lumped under the same rubric. 


The 1982 U.N. Convention on the Law of the Sea is the first worldwide 
multilateral agreement attempting to deal comprehensively with maritime 
environmental problems. For those countries that are or become parties, the 
Convention will replace the 1958 LOS Conventions. Bahrain and Iraq ratified 
it in 1985, and Kuwait in 1986; many other countries, e.g. France and the U.A.E., 
were signatories, but other States with prominent roles in the Gulf wars — e.g., the 
United Kingdom and the United States — were not signatories or parties during 
the Tanker War or the 1990-91 conflict. Thus, for some States there was an 
obligation not to defeat the object and purpose of the Convention during part of 
these confrontations, and others were bound by the custom the Convention 

The Convention has different provisions dealing with the welter of custom and 
treaties affecting the maritime environment; it continues 1958 convention 
provisions stating the relationship between the law of the sea and the law of armed 
conflict and its component, the law of naval warfare. 

A. The Relationship Between the 1982 LOS Convention and Other 
Environmental Treaties 

The 1982 LOS Convention will be an effective if mild trumping device — much 
as the U.N. Charter, Article 103, declares that Charter norms supersede those of 
all other treaties — for agreements related to maritime environmental protection, 
whether already in force or to come into force, which may have special terms but 
which "should be carried out in a manner consistent with the general principles 
and objectives of [the] Convention." This is slightly different from Article 
31 1(2), the general supersession provision for the Convention, which declares that 
it does not alter existing rights "which arise from other agreements compatible 
with this Convention" and which do not affect enjoyment of other parties' rights 


or performance of their obligations. The upshot is that all agreements in place 
or to be negotiated, if related to the generally-stated environmental norms of the 
Convention, must conform to these Convention norms. 

Reading of Part XII of the 1982 LOS Convention, as well as many references 
to environmental standards scattered elsewhere throughout the document, 
demonstrates that specifics are more often found in other agreements, perhaps 
bilateral, and frequently regional in recent years. The latter have been often 
sponsored by the U.N. Environment Programme (UNEP), which developed after 
the Stockholm 1972 U.N. Conference on the Human Environment. Examples 
of these include two that are particularly relevant to this analysis, the 1978 Kuwait 

190 Protection of the Environment During Armed Conflict 

Regional Convention and Protocol and the 1982 Red Sea Convention and 
Protocol. Although the Persian Gulf was the principal theater of maritime 
military operations during the 1990-91 Gulf war, there were many Coalition 
interceptions of Iraq-bound merchantmen in the Red Sea, and some missile and 
air strikes were launched from there. In many instances, detailed regulations are 
developed by administrative bodies established by the treaties. This procedure 


is contemplated in the 1982 LOS Convention. 


There is the possibility, of course, that a parallel but contradictory custom or 
other source of law may develop alongside Convention-based norms. The 
developing customary norm might be the same as, and thereby strengthen, the 
Convention norm. If in opposition, the custom will weaken the treaty norm. 
However, no treaty, and probably no custom, can supersede the U.N. Charter, 
mandatory norms developed under it, or;'ws cogens norms. 

B. "Other Rules" Clauses in the Conventions 

Both the 1958 and 1982 LOS Conventions include clauses, sometimes 
overlooked in analysis or commentary, stating that rights under these agreements 
are subject to "other rules of international law" as well as terms in the particular 
convention. For example, Article 87(1) of the 1982 LOS Convention, which 
declares high seas freedoms, also says that "Freedom of the high seas is exercised 
under the conditions laid down by this Convention and by other rules of 
international law." Four conclusions can be stated. 

First, the overwhelming majority of commentators — including the 
International Law Commission, a U.N. General Assembly agency of international 
law experts — have stated that the "other rules" clauses in the 1958 and 1982 LOS 


Conventions refer to the law of armed conflict, a component of which is the law 
of naval warfare. Therefore, provisions such as Article 88 of the 1982 LOS 
Convention state a truism — i.e. that the high seas are reserved for peaceful 


purposes — but high seas usage can be subject to the law of naval warfare, when 
Article 87(1 )'s other rules clause is read with Article 88. As in the case of the 1958 

That provision does not preclude . . . use of the high seas by naval forces. Their use 
for aggressive purposes, which would . . . violat[e] . . . Article 2(4) of the [U.N.] 
Charter . . . , is forbidden as well by Article 88 [of the Convention]. See also LOS 
Convention, Article 301, requiring parties, in exercising their rights and 
p[er]forming their duties under the Convention, to refrain from any threat or use of 
force in violation of the Charter. 

This analysis is buttressed by the Charter's trumping clause; no treaty can 


supersede the Charter. Thus, the peaceful purposes language in Article 88 and 


other provisions of the Convention cannot override Charter norms, such as those 

Walker 191 

in Article 2(4), but also those in Article 51, i.e. the "inherent right of individual 

and collective self-defense." 

Second, there is no indication that the LOS Convention drafters thought that 

the other rules clauses refer to anything else, and particularly to any customary 

law of the environment. International environmental law was a mere gleam in 

academics' and futurists' eyes when the 1958 LOS Conventions were signed, with 

only a patchwork of international agreements on the subject, and there is no 

indication that the International Law Commission considered the issue. By 

contrast, there was an established body of law dealing with armed conflict 

situations, including naval warfare, at the time. 

Third, other agreements dealing with protection of the maritime environment 

include clauses exempting, or partially exempting, their application during armed 

conflict or similar situations. Some speak of war, others armed conflict or the 

need to protect vital national interests. This includes the recently-ratified North 

American Free Trade Agreement. This tends to confirm the view of applying 

the law of armed conflict as a separate body of law in appropriate situations. To 

the extent that treaties dealing with the maritime environment do not have such 

clauses, such agreements must be read in the light of the LOS conventions, which 
include such provisions. And to the extent that the 1958 LOS conventions today 

recite customary norms — and such is the case with the High Seas 

Convention — applying the laws of armed conflict (LOAC) as a separate body of 

law in appropriate situations as a customary norm must also be considered with 


LOAC treaties and other sources when analyzing environmental issues in this 

Fourth, principles of the law of treaties — e.g., impossibility of performance, 


fundamental change of circumstances, or war, the last applying only to parties 


to a conflict — may suspend operation of international agreements during a 
conflict or other emergency situation, or may terminate them. The outbreak of 
hostilities obviously does not suspend or terminate humanitarian conventions 
designed to apply in armed conflict. The other side of the coin is the policy of 


pacta sunt servanda, i.e., treaties should be observed, and one manifestation of this 
principle is that States signing treaties should not behave so as to defeat their object 

of Of: 

and purpose. The often-amorphous law of treaty succession must be 
considered, particularly with respect to older agreements, including those stating 
the law of armed conflict, to the extent that such treaties are not part of customary 


law today. If these agreements restate custom, and are subject to treaty succession 

principles with respect to a particular country, that country is doubly bound. 

The conclusion is inescapable that the other rules clauses of the 1958 

Conventions — provisions that were carried forward into the 1982 LOS 

Convention — mean that the terms of the Conventions are subject to the law of 

armed conflict, of which the law of naval warfare is a part. Since the 1958 High 

192 Protection of the Environment During Armed Conflict 

Seas Convention is generally regarded as a restatement of customary law, its other 
rules clauses are part of the customary norms governing oceans law during armed 

C. The 1982 LOS Convention and the Maritime Environment 

Although the Convention is prolix on the subject of the environment, the 


changes it proposes are neither great nor radical; it takes a holistic approach. 
The core of marine environmental standards are in Part XII, which establishes for 
the first time a comprehensive legal framework for protecting and preserving the 

marine environment. Other Convention provisions deal with environmental 

issues in the context of specific ocean areas. 

1. Part XII of the Convention 

Part XII begins by declaring that "States have the obligation to protect and 

preserve the marine environment." The Convention does not define "marine 

environment," but the negotiators generally understood that the atmosphere is 

included where relevant. It also includes living resources, marine ecosystems 

and sea water quality. The Convention defines "pollution of the marine 

environment"; it 

. . . means 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 the legitimate 


uses of the sea, impairment of quality for use of sea water and reduction of amenities. 

The Convention also declares that States' "sovereign right to exploit their 
natural resources" pursuant to national environmental policies in, e.g., the EEZ, 

is subject to a "duty to preserve and protect the marine environment" against 


significant damage. 

States must act individually and jointly to prevent, reduce and control pollution 
of the marine environment from any source, using best practicable means at their 
disposal, in accordance with their capabilities. They must harmonize national 


policies, i.e., national laws, with this requirement. In doing so, they must ensure 
that they do not damage other States or their environment by pollution, or that 


pollution does not spread beyond their areas of sovereignty or control, e.g„ the 
EEZ, as well as the territorial sea. Required measures include those designed 
to minimize to the greatest possible extent releasing toxic, harmful or noxious 
substances, especially those that are persistent, from land-based sources, from or 
through the atmosphere or by dumping ; pollution from vessels, including 
accident prevention measures, dealing with emergencies, safety at sea, preventing 
discharges, and regulating design, construction, equipping, operating and 

Walker 193 

manning vessels; pollution from installations for exploring or exploiting natural 
resources of the seabed and subsoil; pollution from other installations operating 


in the marine environment. In so acting, States must refrain from unjustifiable 
interference with other States' exercising their Convention rights and duties. 
Measures taken must include those necessary to protect and preserve rare or fragile 
ecosystems and habitats of depleted, threatened or endangered species and other 
marine life. In combatting pollution, States must not act to transfer damage or 
hazards from one area to another, or to transfer one type of pollution into 
another. Technologies that alter or harm the environment, or introduce new or 
alien species that would significantly harm the environment must be avoided. 
There are two distinct duties: avoiding use of harmful technologies, and 

"maintain[ing] the natural state of the marine environment," the latter an 

innovation in international law. 

The Convention requires environmental cooperation on global and regional 

bases. Other provisions require cooperation in scientific research and in 

establishing scientific criteria for rules for pollution prevention, reduction and 

control. States must also monitor, publish and assess the marine environment 

and provide scientific and technical assistance, with preference for developing 

States. A State must notify other countries and competent international 

organizations (e.g., the International Maritime Organization, IMO) of actual or 

imminent pollution damage to the environment. Notification is a rule of 

customary international law. Notice "also envisages that a notified State may 


wish to take preventive action to avert damage to itself." States must jointly 
develop and promote contingency plans to combat pollution, cooperating with 
international organizations within limits of their capabilities. 

The Convention establishes standards for international rules and national laws 
to combat pollution. States must adopt measures at least as effective as 
international rules and standards to prevent, reduce and control pollution from 
land-based sources; seabed activities, artificial islands and installations subject to 
"national jurisdiction;" the Area; and vessels of their registry or flag. The 
phrase "national jurisdiction" includes internal waters, the territorial sea, the 


EEZ, the continental shelf and archipelagic waters. 

1 18 

Similar principles govern ocean dumping. Dumping in another State's 
territorial sea, EEZ or continental shelf waters requires the coastal State's express 

prior approval; it may regulate such dumping after consulting with other affected 


Although some drafters thought that emergency fuel discharge from aircraft 

might not be an exception to prohibitions on ocean dumping without prior express 

approval, eventually the conclusion was that general international law allows such 


on force majeure or distress theories as an exception to treaty compliance. What 
is true for aircraft is also true for ships; distress and force majeure theories are 

194 Protection of the Environment During Armed Conflict 

recognized for innocent passage and straits transit passage regimes. Distress and 
force majeure can be valid claims during armed conflict situations, with different 
rules applying in relationships among States not party to a conflict, relationships 
between belligerents and States not party to a conflict, and relationships between 

1 22 

States must harmonize national policies at regional levels and must work at 
the global level to establish rules, standards and recommended practices and 

2. Controlling Pollution and Protecting the Environment in Specific Ocean Areas 
The 1982 Convention, Part XII, also recites standards related to specific ocean 

areas, e.g., the territorial sea. In some cases, e.g. the contiguous zone, there is no 

reference in Part XII. 

The Convention has special rules for controlling pollution from vessels in the 

territorial sea. States may publish special rules for foreign-flag ships' entry into 

port or internal waters, after due notice. These can be cooperative arrangements. 

States may adopt special rules for foreign-flag vessels within their territorial sea, 

including ships in innocent passage. However, no special rule can hamper 

innocent passage. 

These provisions are consistent with the Convention's navigational articles, 

which declare that passage is considered prejudicial to the coastal State's peace, 

good order or security if a foreign-flag ship "engages in . . . any act of wilful and 

serious pollution contrary to [the] Conventionf,]" and which allows the coastal 

State to adopt regulations, "in conformity with . . . this Convention and other rules 

of international law, relating to innocent passage ... in respect of . . . conservation 

of the living resources of the sea [and] . . . preservation of the environment of the 

coastal State and the prevention, reduction and control of pollution thereof. . ." 

with due notice of such rules. Foreign ships must comply with these rules. 

Tankers, nuclear-powered ships and vessels carrying nuclear or other inherently 

dangerous or noxious substances or materials may be required to confine their 

passage to sea lanes established by the littoral State. These ships must also observe 

any special precautions stated in international agreements. As in other 

circumstances, coastal States cannot hamper innocent passage except pursuant to 

the Convention. In applying regulations adopted in accordance with it, the 

practical effect cannot be to deny or impair innocent passage. There can be no 

discrimination in form or fact against any State's ships or against vessels carrying 


cargo to, from or for any State. 

However, coastal States may act to prevent breach of conditions attached to port 
calls or passage to internal waters. Moreover, they may temporarily suspend 
innocent passage in specific areas of their territorial sea if essential for protecting 
their security after duly published notice of a suspension. While this might 

Walker 195 
arguably allow suspension for "environmental security" reasons, such is not the 


case. Repetition from the Territorial Sea Convention, and the 1982 


Convention's drafting history, point to a different view. The right of temporary 
suspension balances between a coastal State's right to protect its territorial 


integrity through legitimate self-defense measures and rights of navigation, etc., 
under the territorial sea innocent passage regime. How protecting a coastal State's 
environment fits into the analysis is a different issue. 

The same territorial sea rules for criminal and civil jurisdiction, and for 
immunity of warships and other government ships operated for non-commercial 
purposes, also apply to environment-related claims. For example, warships that 
do not comply with valid coastal State environmental regulations can only be 
required to leave the territorial sea immediately. Flag States are responsible under 

international law for loss or damage caused by their warships or other 

noncommercial vessels. * The Convention's innocent passage rules, insofar as 

they concern environmental protection, are also subject to "other rules of 

international law," i.e., the law of naval warfare. 

The Convention's innocent passage rules apply to straits for which innocent 

passage rights obtain and to archipelagic waters passage. If a country qualifying 

as an archipelagic State declares archipelagic sea lanes and air routes and they are 

adopted by the appropriate international organization (i.e. IMO), duties of ships 

and aircraft regarding the oceans environment, authorization for the archipelagic 

State to adopt laws, and the requirement that the right of passage shall not be 

hampered or suspended applicable to straits transit passage, attach to archipelagic 

sea lanes passage. A difference between straits innocent passage and archipelagic 

innocent passage, whether lanes have been declared or not, is that archipelagic 

States may suspend innocent passage for security reasons as under the territorial 

1 36 

sea regime, while straits innocent passage is nonsuspendable. Although coastal 
States may take appropriate enforcement measures against vessels "causing or 
threatening major damage" to the straits environment because they have violated 
navigational safety, maritime traffic or environmental laws while in transit passage 
(the regime for most straits), this does not apply to warships or other vessels 


entitled to sovereign immunity. 

Article 33 of the Convention, permitting a contiguous zone, does not 
specifically mention environmental protection. It allows declaration of such a 
zone, which, if no EEZ has been claimed, is a high seas area contiguous to the 
territorial sea but no wider than 24 miles from territorial sea baselines. The coastal 
State may exercise control in the zone to prevent infringement of its customs, 
fiscal, immigration or sanitary (i.e., health or quarantine) laws and to punish 


violations committed within the territorial sea. It is conceivable that 
environmental protection claims could be made with respect to health law 
enforcement, but this has not been the traditional view of the zone's purpose. 

196 Protection of the Environment During Armed Conflict 

Article 33 is tied to Article 303 of the Convention, which sets standards for 
archeological and historical objects found at sea. "Found at sea" seems to have 
a more comprehensive scope than "found in the marine environment." Another 
problem with Article 303 is that there is no agreed definition of the terms 
"archaeological" and "historical." Article 303 says that its terms are also 
"without prejudice to other international agreements and rules of international 
law regarding the protection of objects of an archaeological and historical 
nature," a variant on the "other rules" clauses that make the Convention subject 
to the law of armed conflict in appropriate situations. In internal waters, the 
territorial sea and archipelagic waters, coastal State law governs as to artifacts 
found there; beyond, out to the Area, i.e., the deep seabed beyond national 
jurisdiction or sovereignty, Article 303 controls but does not accord sovereign 
rights. Objects found in the Area must be preserved or disposed of for the benefit 
of humankind, with "particular regard" for the State of origin, if that can be 

Consistent with the Convention's navigational articles, as in the case of the 
territorial sea, coastal States may adopt special laws for their EEZs. Although 
there is no explicit cross-reference to Convention continental shelf principles in 
this Part XII provision, clearly the coastal State has the same kind of 
environmental rights and responsibilities with regard to activities on its 
continental shelf where shelf sovereignty has been declared with no claim for an 
EEZ. For both the EEZ and the continental shelf, coastal States must have due 
regard for other oceans users' high seas rights, including navigation and 


overflight. Both are subject to sovereign immunity exceptions for, e.g., warships, 
and the "other rules of international law" principle, in connection with coastal 
State environmental regulation. 

Provisions allowing coastal State regulation of pollution from vessels in the 
territorial sea, the EEZ and above the continental shelf are considered an 
"innovation for the general law of the sea," which usually has looked to flag or 
registry States to control pollution from ships. Whether considered lex lata or 
de legeferenda today, these innovative provisions are subject to qualifications: there 
must be a balance of due regard for others' high seas rights, e.g., freedoms of 
navigation or overflight; warships and other non-commercial vessels retain 
sovereign immunity; and any attempt at environmental regulation of these sea 
areas is subject to law of armed conflict principles in appropriate situations 
through the "other rules" clauses. 

The 1982 Convention also provides for enforcing environmental standards. 
States must adopt laws implementing international norms for land-based 
pollution, pollution from seabed activities, ocean dumping, and through or from 
the atmosphere. The pollution hazard must be significant. 

Walker 197 

States in whose port a vessel, suspected of polluting that State's internal or 
territorial waters or EEZ, in violation of international standards, is located, may 
investigate, detain or begin enforcement against that ship. These rights are subject 
to, e.g., notice to the flag or registry State, nondiscriminatory enforcement, and 
enforcement only through State vessels, e.g., warships or vessels on authorized 
government service. Enforcing States may not endanger safety of navigation or 
create a hazard to an accused vessel, bring it to an unsafe port or anchorage, or 
expose the marine environment to "an unreasonable risk." A detaining State is 
liable for unlawful enforcement measures, excessive "in the light of available 
information" at the time. The Convention also provides in Article 221 that 

1. Nothing . . . prejudice^] the right of States, pursuant to international law, both 
customary and conventional, to take and enforce measures beyond the territorial sea 
proportionate to the actual or threatened damage to protect their coastline or related 
interests, including fishing, from pollution or threat of pollution following upon a 
maritime casualty or acts relating to such a casualty, which may reasonably be 
expected to result in major harmful consequences. 

2 "[MJaritime casualty" means a collision of vessels, stranding or other incident 

of navigation, or other occurrence on board a vessel or external to it resulting in 
material damage or imminent threat of material damage to a vessel or cargo. 

Measures to be taken under Art. 221(1) include destruction of the vessel. These 

provisions, found in other widely-accepted pollution prevention conventions, 

may be close to acceptance as customary international law, if such is not already 

the case. Such a right of intervention would have justified Persian Gulf 
countries' acting to prevent oil pollution damage from the attacks on oil terminal 
facilities or vessels during the Tanker War, assuming there was a threat within 
the Convention definition, and that the leakage resulting from the attacks was a 
"casualty" within the meaning of Article 221(2), i.e., an "occurrence on board a 
vessel or external to it resulting in, or imminent threat, of material damage to a 
vessel or cargo." The provisions may not have applied to Iran and Iraq in that war 
because of the "other rules" clauses of the LOS Conventions, applicable at least as 
customary law, but as between Persian Gulf States not party to the conflict and 
either belligerent, or as between States not party to the war, the law of the sea 
applied in this context. Since U.N. Security Council resolutions at least 
theoretically involved all countries around the Gulf during the 1990-91 conflict, 
LOS principles allowing intervention may have gone by the boards because of the 
other rules clauses as to the Iraq-initiated spill from the Kuwaiti port. To the 
extent that Article 221 would apply as a customary norm, it supplied additional 
justification for Coalition attacks to stop the discharge. 

In the context of the Convention's enforcement provisions, here too warships, 
naval auxiliaries and other vessels or aircraft on government non-commercial 

198 Protection of the Environment During Armed Conflict 

service may not be detained and have sovereign immunity; this is qualified by 
requiring flag States to ensure, by adopting "appropriate measures" not impairing 
operations or operational capabilities of such ships or aircraft, that they operate 
consistently, so far as is reasonable and practicable, with the Convention. This 
policy repeats other Convention immunity rules except for the "appropriate 
measures" qualification. It 

. . . acknowledges that military vessels and aircraft are unique platforms not always 
adaptable to conventional environmental technologies and equipment because of 
weight and space limitations, harsh operating conditions, the requirements of 
long-term sustainability, or other security considerations. . . . [Slecurity needs may 
limit compliance with disclosure requirements. 

Some regional environmental protection agreements either omit a 

declaration of the customary immunity rule or do not append the 1982 LOS 

Convention's limitations and requirements for appropriate measures. The Kuwait 

Regional Convention and the Red Sea Convention are examples of the latter. 

To the extent that the Convention binds treaty partners in a given context, those 

treaties must be considered modified to that extent. To the extent that the LOS 

Convention restates customary law, the longstanding principle of warship and 

i fn 
naval auxiliary immunity is a powerful factor for its application in these 

contexts as well. 

Other divisions of the 1982 LOS Convention providing for environmental 
protection independently of Part XII include those dealing with vessel accidents 
on the high seas, high seas fishing, and the Area, also a part of the high seas, and 
marine scientific research. The Convention's high seas fishing provisions follow 
in part those of the 1958 conventions, but rules for the Area are unique to the 1982 
Convention. Because there has been little technology capable of exploiting that 
part of the ocean, and because the Convention has only recently come into force, 
these provisions are presently largely theoretical in nature. Nevertheless, they are 
likely to have impact in the next century, and many restate concepts in other ocean 
areas regulated by the Convention. 

The Convention requires more of flag States as to ships under their registry and 
operating on the high seas. Flag States must ensure "that the master, officers and, 
to the extent appropriate, the crew are fully conversant with and required to 
observe the applicable international regulations concerning . . . prevention, 
reduction and control of marine pollution. . . ." The Convention also requires 
States to "cause an inquiry to be held . . . into every marine casualty or incident of 
navigation on the high seas involving a ship flying its flag and causing [inter 
alia] . . . serious damage ... to the marine environment. The flag State and the 
other State shall co-operate in the conduct of any inquiry . . . into any such marine 
casualty or incident of navigation." 

Walker 199 

There is a duty among States bordering semi-enclosed areas, i.e., a gulf or other 
body surrounded by two or more States and connected to another sea or the ocean 
by a narrow outlet, such as the Persian Gulf, to coordinate managing, conserving, 
exploring and exploiting oceanic living resources, and to coordinate implementing 


their rights and duties as to protecting and preserving the marine environment. 
Marine scientific research is recognized as a high seas right in the 1982 


Convention, but such operations must be conducted in compliance with 

relevant regulations adopted in conformity with the Convention including those 

protecting and preserving the marine environment. 

Although high seas fisherfolk retain the traditional freedom to seek their 

catch, the Convention seines in that right to a certain extent, as it has been 

under earlier treaties and practice. It "has never been an unfettered right." The 

Convention explicitly subjects high seas fishing rights to limiting treaties, and to 

cooperation in achieving agreements, as well as rules it sets for certain fish stocks 


and on conserving high seas living resources. To the extent that these treaties 

impose environmental controls, the high seas freedom to fish is curtailed. The 

same is true for conservation measures imposed by coastal States or agreements. 

Although the Convention imposes a due regard formula on concurrent exercise 

i if\ 
of high seas freedoms such as navigation, overflight and fishing, this formula 

does not apply to environmental concerns. The only indirect exception is the 

r ... 178 

due regard requirement for Area activities, which might include environmental 

The Area — defined as the seabed, ocean floor and subsoil beyond national 

179 r 

jurisdictional limits — and its resources are declared the common heritage of 

humankind. National jurisdiction means, inter alia, a declared EEZ or 

continental shelf. The legal status of the water column or airspace above the Area 


is not affected by Convention provisions dealing with it. Area governance is 


vested in an Authority, which must adopt rules and procedures for preventing, 
reducing and controlling pollution and other hazards to the marine environment, 
including coastlines, interfering with the ecological balance of that environment, 
with particular attention being paid to protection from harmful effects of activities 
such as drilling, dredging, excavation, waste disposal, building and operating or 
maintaining installations, pipelines and other devices. These rules must also 
protect and conserve Area natural resources and prevent damage to flora and fauna 
of the marine environment. The Authority must take necessary measures, which 

may supplement existing treaties, to protect human life, in connection with Area 

operations. There is also an obligation to preserve objects of an archaeological 

and historical nature found in the Area, with particular regard paid to preferential 

rights of a State or country of origin, and which incorporates by reference other 

1 84 

rules of law and agreements dealing with artifacts protection. The Convention 
also requires that Area activities be undertaken " with reasonable regard for other 

200 Protection of the Environment During Armed Conflict 

activities in the marine environment." Area installations, like those in the EEZ 
and on the continental shelf, inter alia must not be established "where interference 
may be caused to the use of recognized sea lanes essential to international 

navigation or in areas of intense fishing activity Other activities in the marine 

environment shall be conducted with reasonable regard for activities in the 
Area." 185 

Convention provisions for the Area include an "other rules of international 
law" clause: 

The general conduct of States in relation to the Area shall be in accordance with the 
provisions of this Part [XI], the principles embodied in the [U.N.] Charter . . . and 
other rules of international law in the interests of maintaining peace and security and 
promoting international co-operation and mutual understanding. 

As in the case of the high seas generally, the Convention declares that the Area 


shall only be used for peaceful purposes. The same interpretations should obtain 
for application of these articles as analyzed under other parts of the 1982 


Convention and its 1958 antecedents. "Other rules" means the law of armed 
conflict may be applied in certain contexts. The "peaceful purposes" provision 
means that no State can take any action, e.g., aggression, in violation of the Charter. 
Peaceful activities under Area rules include military activities, e.g., naval task force 



3. Regional Agreements, the 1982 LOS Convention, and the Law of Armed Conflict at 

The Kuwait Regional Convention, to which all Persian Gulf countries are party, 
including Iran and Iraq, covers the entire Gulf, except for bordering States' 
internal waters. Similarly, the Red Sea Convention's geographic sweep includes 
that body and the Gulf of Aden, again excepting bordering States' internal 


waters. Both define "marine pollution" in nearly identical terms as 

introduction by man, directly or indirectly, of substances or energy into the marine 
environment resulting or likely to result in such deleterious effects as harm to living 
resources, hazards to human health, hindrance to marine activities including fishing, 

• • 191 

impairment of [the] quality of use for use of [the] sea and reduction of amenities[.] 

Parties pledge cooperation to prevent, abate and combat pollution of the marine 
environment in the Gulf or the Red Sea, whether caused by ships, dumping from 
ships or aircraft, from exploring and exploiting the territorial sea and its subsoil 


and the continental shelf, or land reclamation activities. The Conventions 

1 Q3 

Protocols amplify this pledge. The latter include broad definitions of "marine 
emergency" to trigger application; it means 

Walker 201 

. . . any casualty, incident, occurrence or situation, however caused, resulting in 
substantial pollution or imminent threat of substantial pollution to the marine 
environment by oil or other harmful substances and includes, inter alia, collisions, 
strandings and other incidents involving ships, including tankers, blow-outs arising 
from petroleum drilling and production activities, and the presence of oil or other 
harmful substances arising from the failure of industrial installations^] 

These Conventions and Protocols do not explicitly provide for anticipatory 
self-defense against imminent pollution threats, as does the 1982 LOS 


Convention. However, the Protocols appear to contemplate such by allowing 
"every appropriate measure to combat pollution and/or to rectify the situation," 
provided that other countries are notified of emergency responses, defined as 
"any activity intended to prevent, mitigate or eliminate pollution by oil or other 
harmful substances or threat of such pollution resulting from marine 


emergencies." This broad grant of authority must be tempered by the 


limitations of proportionality, etc., stated in the 1982 Convention. This 
Convention language further justifies, subject to notice and proportionality 

principles, the concept of anticipatory reaction to imminent threat. And if this be 


so, might such be further support for the concept of anticipatory self-defense? 

These regional treaties had applications during the Tanker War and the 1 990-9 1 
conflict. The Red Sea Convention and Protocol did not apply to the 1980-88 war, 
except as being supportive of common principles in the Kuwait Convention and 
Protocol, which did apply, geographically, to the Persian Gulf. 

There were two belligerents in the Tanker War, Iran and Iraq. The Kuwait 
Convention and its Protocol could not have applied perse as between them, either 


because of application of the other rules principles of the law of the sea, or 
because of law of treaties principles such as impossibility of performance, 

fundamental change of circumstances or armed conflict between them, all of which 


are grounds for suspending international agreements. However, except insofar 
as the latter grounds would apply as between belligerents and other Gulf States 
party to the Convention and its Protocol, their pledges to prevent, abate and 


combat pollution of the marine environment remained in force. To the extent 
that the agreements' terms restated customary norms, these too remained in 

Given the completion of the LOS Convention, its clauses paramount and its 
terms, virtually identical with those of the Kuwait Convention and its Protocol, 
together with terms of other treaties around the world that were virtually identical 
with the Convention and the Protocol by 1982, there was at least a developing 
customary norm, and perhaps a customary rule, alongside treaty principles stated 


in the Kuwait Convention and its Protocol, by 1982. If this is so, the belligerents 
were obliged not to act so as to pollute, or act to cause an imminent threat, to other 
Gulf States' interests, and to interests of other countries using Gulf waters for 

202 Protection of the Environment During Armed Conflict 

freedom of navigation through actions such as attacks on the Nowruz and other 

terminal facilities when the result at the time of decision was likely to be a 

substantial spill. Under the Kuwait Convention, Iran was arguably within its 

rights to ask for an opportunity to stop the outflow. For the same reasons, there 

may have been violations of the Convention and the Protocol with respect to 

spillage resulting from Iraqi and Iranian attacks on shipping during the war, if 

such could have been foreseen to have resulted in substantial risk to other States' 

environmental interests, and such risks occurred. The record is less than clear on 


this point. 

With respect to the 1990-91 conflict, the analysis is different. First, Iraq could 

21 1 

claim suspension of the Convention and its Protocol under the law of treaties. 
Second, it could be argued that U.N. Security Council resolutions superseded the 
Convention and its Protocol because of the supremacy of Charter-based law in 

actions on the environment and in authorizing all necessary means to eject Iraq 

from Kuwait. To the extent that customary law was embodied in these treaties 

and such customary law survived in the face of Council action under the 


Charter, Iraq clearly violated these norms in its deliberate spillage of oil into 
the Gulf to foil a projected Coalition amphibious attack. 

Since Coalition naval operations extended into the Red Sea as well as the Persian 


Gulf, there was the potential of application of the Red Sea Convention and its 

21 f\ 

Protocol as to treaty parties such as Saudi Arabia and Jordan. If the two 
Conventions and Protocols, together with the 1982 LOS Convention, could be said 
to state customary norms that survived Council action under the Charter, there 
was a potential for violation by Coalition naval forces. The record is void as to both 
Red Sea and Gulf operations, and it is highly likely that there were no violations 
of customary norms by the Coalition in either theater. 

4. The Convention and the Law of the Maritime Environment 

This summary of Convention terms for protecting the marine environment 
demonstrates that Part XII and those terms included in other parts of the treaty 
are indeed prolix and comprehensive and there is little that is new law or 
unanticipated. Indeed, provisions related to the environment in many cases repeat 
principles seen in other contexts: the concept of "due regard" where there are two 
or more oceans uses at stake ; confirmation of the sovereign immunity of 
warships, naval auxiliaries and other government vessels on non-commercial 

? 1 8 

service and State aircraft ; confirmation of application of the law of armed 
conflict in the context of environmental protection through application of other 
rules clauses, which do not include customary law of the environment as part of 

219 • 

"other rules" ; the same usage of "peaceful purposes" language in connection 

220 • • 

with the Area as on the high seas generally. Approval of the use of anticipatory 
self-defense against an environmental threat, previously stated in earlier treaties, 

Walker 203 
is some precedent for the concept of anticipatory self-defense in the context of the 


inherent right to self-defense mentioned in the Charter. 

Other Persian Gulf States could possibly have asserted claims during the 
Tanker War if the belligerents' attacks on Gulf shipping caused slicks that 

threatened their interests, or if the attacks on the oil terminals, including that on 

Nowruz in 1983, raised the same threat. A similar analysis obtains for the 

Kuwait Convention and its Protocol. 

Whether the deliberate flood by Iraq during the 1990-91 conflict could have 

been a predicate for similar claims depends on whether the law of the sea was 

superseded by the law of the Charter, and particularly the effect of U.N. Security 

Council decisions. A similar analysis would obtain under the regional 

225 r 

conventions. Although there was the potential for applying the same law to 
Coalition operations, there is no indication that there were violations by Coalition 


naval forces. 

Apparently these issues were not advanced in either war, but as the Convention 
is accepted by more States, either as treaty law or as customary norms, these claims 
may be raised in the future, particularly if the Convention is buttressed by similar 

terms in regional and bilateral agreements, although the Convention's norms 

trump any to the contrary in these treaties. 

This cursory review of a complex body of law raises the double question of the 

relationship between the law of the maritime environment and the general law of 

the sea, perhaps under a "due regard" analysis, and the relationship between the 

law of the environment and the law of armed conflict, perhaps also on a "due 

regard" basis. This is complicated by the Convention's placement of some 

environmental norms within Part XII, the general standards, and its sprinkling 


others throughout the treaty. How do these bodies of law — the law of the 
maritime environment, the general law of the sea, and the law of armed 
conflict — interrelate? The Convention gives no clear answer on this issue. 


If the 1982 LOS Convention is a "constitution" for the law of the sea where the 
law of armed conflict is not involved, its provisions for protecting the marine 
environment could be said to be a seagoing "bill of rights" for the environment. 
Treaties varying from Convention environmental protection provisions are 


subject to the Convention's terms for those States that are party to it. Custom 
may compete with the Convention in the future, and;us cogens and U.N. Charter 


norms may supersede part of it as well. 

Customary norms, first codified in the 1958 LOS Conventions, confirming 
sovereign immunity for warships, naval auxiliaries and other vessels on 
government non-commercial service and State aircraft, are affirmed in the 1982 
Convention and have been repeated in regional agreements. Similarly, 

204 Protection of the Environment During Armed Conflict 

recognition of the law of armed conflict and its component, the law of naval 
warfare, as applicable in certain situations, is confirmed in the Convention's 


navigational articles and its environmental provisions. The principle of "due 
regard" for competing oceans uses, particularly on the high seas, has been carried 


forward into the 1982 Convention. 

What is new is a complex, prolix protection for the maritime environment. The 
fundamental issue has become the relationship of this relatively new body of law 
with the general law of the sea and the law of armed conflict. 


•Professor of Law, Wake Forest University 

1. Elmer- Dcwiu,A Man-Made Hell on Earth, Time, Mar. 18, 1991, at 36. 

2. For other accounts, which in most cases rely on contemporaneous media reports, of assaults on the 
environment during the 1990-91 conflict, see generally U.S. Department of Defense, Final Report to Congress: 
Conductofthe Persian Gulf War 147, 624-25 (1992) [hereinafter DOD Report]; Edwards, The Iraqi Oil "Weapon" 
in the 1991 Gulf War: A Law of Armed Conflict Analysis, 40Nav. L. Rev. 105, 108-10(1991); Leibler, Deliberate Wartime 
Environmental Damage: New Challenges for International Law, 23 Cal. W. Int'l L.J. 67-68 (1992); Low & Hodgkinson, 
Compensation for Wartime Environmental Damage: Challenges to International Law After the Gulf War, 35 Va. J. Int'l L. 
405, 410-12 (1995); Okorodudu-Fubara, Oil in the Persian Gulf War: Legal Appraisal of an Environmental Disaster, 23 
St. Mary's L.J. 123, 129 (1991); Lijnzaad & Tanja, Protection of the Environment in Times of Armed Conflict: The 
Iraq-Kuwait War, 1993 Neth. Int'l L. Rev. 169, 170-71; Plant, Introduction, in Environmental Protection and the 
Law of War: A "Fifth" Geneva Convention on the Protection of the Environment in Tmeof Armed Conflict 
(Plant ed. 1992) at 3 [hereinafter Environmental Protection]; Roberts, Environmental Destruction in the 1991 Gulf 
War, 32 Int'l R. Red Cross 538, 540-49 (1992); Salter, Environmental Legal Issues Arising from the Gulf Conflict, 8 Oil & 
Gas L. & Tax. Rev. 348, (1990); Sharp, The Effective Deterrence of Environmental Damage During Armed Conflict: A Case 
A nalysts of the Persian Gulf War, 1 37 Mil. L. Rev. 1 , 40-4 1 ( 1 992); Zedalis, Burning of the Kuwaiti Oilfields and the Laws 
of War, 24 Vand. J. Transnat'l L. 711,713(1991); Edgerton, Comment, Eco-Terroritst Acts During the Persian Gulf War: 
Is International Law Sufficient to Hold Iraq Liable?, 22 Ga. J. Int'l & Comp. L. 151, 153 (1992). 

3. See Roberts, Environmental Issues in International Armed Conflict: The Experience of the Gulf War, Chap. XIV, 

4. Walker, State Practice Following World War II, 1945-1990, in Targeting Enemy Merchant Shipping 121,159 
(Nav. WarC. Int'l L. Stud., v. 65,Grunawalted. 1993) at 121, 1 59; Okorodudu-Fubara, supra n. 2, at 129; Salter, supra 
n. 2 at 349, estimates the leakage was 30,000 tons of crude oil per day, considerably more than the summary of media 

5. Walker, iwpran. 4, at 158. 

6. Id. at 161 ; Chronology 1986, 65 Foreign Aff. 653, 672-76 (1987). 

7. Walker, supra n. 4, at 165; Hayes, Naval Rules of Engagement: Management Tools for Crisis (1989) 
48-49; McNeill, Neutral Rights and Maritime Sanctions: The Effects of Two Wars, 31 Va. J. Int'l L. 631, 638-39 (1991); 
Peace, Remarks, in Panel, Neutrality, the Rights of Shipping and the Use of Force in the Persian Gulf War (Part I), 1988 
Proc. Am. Soc'y Int'l L. 148, 152 (1990); Peace, Major Maritime Events in the Persian Gulf Between 1984 and 1991: A 
Juridical Analysis, 31 Va. J. Int'l L. 545, 557-58 (1991); N.Y. Times, Oct. 20, 1987, at A10; see also letter of President 
Reagan to House Speaker Wright, Oct. 20, 1987, 23 Weekly Comp. of Pres. Docs. 1206 (1987). 

8. Walker, supra n. 4, at 1 59-66, citing inter alia Fenrick, The Military Objective and the Principle of Distinction in 
the Law of Naval Warfare, in Bochumer Schriften Zur Friedenssicherung Und Zum Humanitaren Volkerrecht 
(Heinegg ed., v. 7, 1991) at 1,20; see also Fenrick, Legal Aspects of Targeting in the Law of Naval Warfare, 1991 Can. Y.B. 
Int'l L. 238, 260. 

9. Over 200 merchant mariners died. Hoffman, Neutral Mariners and Humanitarian Law: A Precedent for Protecting 
Neutrals in Armed Conflict, 1992 Int'l Rev. Red Cross 274, 285-86; Russo, Neutrality at Sea in Transition: State Practice 
in the Gulf War as Emerging International Customary Law, 19 Ocean Devel. & Int'l L. 381, 397(1988); see also Wiswall, 
Remarks, in Panel, Neutrality, the Rights of Shipping and the Use of Force in the Persian Gulf War (Part II), 1 988 Proc. Am. 
Soc'y Int'l L. 594-95 (1990); Wiswall, Neutrality, the Rights of Shipping and the Use of Force in the Persian Gulf, 31 Va. J. 
Int'l L. 619,621(1991). 

Walker 205 

10. See generally Iraqi Symposium, 15 S. 111. L.J. 41 1 (1991); Schachter, United Nations Law in the Gulf Conflict, 85 
A.J.I.L. 452 (1991); Walker, The Crisis Over Kuwait, August 1990-February 1991, in Symposium on International Law and 
the Rules of War: The Crisis Over Kuwait, 1991 Duke J. Comp. & Int'l L. 1, 25, 29-40. 

11. DOD Report, supra n. 2, at 624-25; Moore, Crisis in the Gulf: Enforcing the Rule of Law (1992) at 78-79; 
Edgerton, supra n. 2, at 152; Edwards, supra n. 2, at 105-08; Lijnzaad & Tanja, supra n. 2, at 170; Low & Hodgkinson, 
supra n. 2; Okorodudu-Fubara, supra n. 2, at 129-30, 132-36; Plant, Introduction, in Environmental Protection, supra, 
n. 2, at 3; Plant, Legal Aspects of Marine Pollution During the Gulf War, 7 Int'l J. Estuarine & Coastal Law 217-18 (1992) 
[hereinafter Legal Aspects]; Sharp, supra n. 2, at 4142; Zedalis, supra n. 2, at 713. Iraq's shelling Saudi Arabia's Khafji 
oil facilities in late January 1991 resulted in leakage into the Gulf on Saudi Arabia's north coast; this has been 
characterized as collateral damage. Plant, supra at 218. 

12. See generally Friedman, Desert Victory: The War for Kuwait (1991) ch. 4; Walker, supra n. 10, at 35-36. 

13. Friedman, supra n. 12, at 209, 211-13, 361-64; Melia, "Damn the Torpedoes": A Short History of U.S. 
Naval Mine Countermeasures, 1777-1991, (1991) at 127-32. 

14. Iraq arguably believed that smoke from oil fires, and perhaps heat and light from them, would confuse 
Coalition fire control systems and would blind Coalition pilots and gunners. The oil slick may have been designed to 
impede or stop an amphibious assault by naval and marine forces on beaches near Kuwait City. There was also the 
possibility that the oil would clog desalination plants in Saudi Arabia and thereby deprive the civil population and 
Coalition forces of water supply. Although some Coalition weapons systems were affected, the oil fires were not a 
major problem, the threatened amphibious assault was a Coalition ruse to pin down Iraqi defenders. The flooding 
may have been Iraqi retaliation to Coalition air strikes against the homeland. DOD Report, supra n. 2, at 147, 624-25; 
Edgerton, supra n. 2, at 132-33; Edwards, supra n. 2, at 117; Leibler, supra n. 2, at 127-28; Low & Hodgkinson, supra 
n. 2; Okorodudu-Fubara, supra n. 2, at 129-32; Plant, Legal Aspects, supra n. 11, at 223, noting that Iraq might claim 
that its action had a military objective. 

15. See generally Leibler, supra n. 2, at 127-28; Okorodudu-Fubara, supra n. 2, at 13241; Edgerton, supra n. 2, at 

16. Leibler, supra n. 2, at 126-27. 

17. Okorodudu-Fubara, supra n. 2, at 138. 

18. See Walker, supra n. 4, at 166. Few if any merchant ships were hit by hostile fire during the 1990-91 war; a 
couple of Coalition warships were mined, and Iraqi maritime forces, including captured Kuwaiti assets, were sunk. 
See generally DOD Report, supra n. 2, at 97, 157, 188-90, 193-%, 199-208; Melia, supra n. 13, at 128-29. 

19. 2 O'Connell, The International Law of the Sea (Shearer ed. 1984) at 984. 

20. In 1926, the Preliminary Conference on Oil Pollution of Navigational Waters produced a Draft Convention, 
reprintedin 1 Foreign Relofthe U.S.: 1926, at 238, 245 (1941). No government signed it, but some shipowners signed 
a "gentleman's agreement" not to discharge oily water within 50 miles of a coast. The draft convention became the 
basis for the Convention for Prevention of Pollution of the Sea by Oil, May 12, 1954, 12 U.S.T. 2989, 327 U.N.T.S. 3 
[hereinafter 1954 Oil Pollution Convention], amended Apr. 11, 1962, 17 id. 1523, 600 U.N.T.S. 332, Oct. 21, 1969, 28 
id. 1205, Oct. 12, 1 97 1, reprinted in 2 Wallace, The Marine Mammal Commission Compendium of Selected Treaties, 
International Agreements, and Other Relevant Documents on Marine Resources, Wildlife, and the 
Environment (1994) at 1693; Oct. 15, 197 '1, reprinted in id. 1695. Colombos, The International Lawofthe Sea (6th 
rev. ed. 1967) at Sec. 445; 4 Nordquist et al., United Nations Convention on the Law of the Sea 1982: A 
Commentary (1991) at 4. Environmental warfare is equally old. See Okorodudu-Fubara, supra n. 2, at 14243. 

21. Convention for Safety of Life at Sea, Jan. 20, 1914, 219 Consol. T.S. 177 [hereinafter 1914 SOLAS]. 

22. E.g. Convention on Civil Liability for Oil Pollution Damage, Nov. 29, 1969, [hereinafter Civil Liability 
Convention], 973 U.N.T.S. 3, supplemented by Protocol, Nov. 19, 1976, reprinted in 16 I.L.M.617 (1977), a response 
to the 1967 Torrey Canyon grounding. Healy, The C.M.I, and IMCO Draft Conventions on Civil Liability for Oil Pollution, 
1 J. Mar. L. & Com. 93 (1969). The Convention, supra, was modified by a Protocol of May 25, 1984, reprinted in 6 
Benedict on Admiralty (7th ed. rev., Wiswall ed. 1995), Doc. 6A and a Protocol of Nov. 27, 1992, reprinted in id., Doc. 
6B; neither are in force for the United States. The Convention Relating to Intervention on the High Seas in Cases of 
Oil Pollution Casualties, Nov. 29, 1969, 26 U.S.T. 765, 970 U.N.T.S. 212 [hereinafter 1969 Intervention Convention], 
also was a response to Torrey Canyon; it has been amended by the Protocol Relating to Intervention on the High Steas 
in Cases of Marine Pollution by Substances Other than Oil, Nov. 2, 1973, T.I.A.S. No. 10561, reprinted in 13 I.L.M. 
605 (1973) [hereinafter 1973 Intervention Protocol]. The Intervention on the High Seas Act, 33 U.S.C. §§ 1471-78 
(1994) implements the Convention and its Protocol. See also 2 O'Connell, supra n. 19, at 1006-07; Schoenbaum, 
Admiralty and Maritime Law (2d ed. 1994) § 16-1 at 825. 

23. In 1970, however, Richard A. Falk, told a Naval War College audience that the Torrey Canyon spill was the 
"Hiroshima" of the Ecological Age. See Falk, New Trends in International Law: The Challenges of the Ecological Age, 
Nav. War C. Rev. 18, 21 (1970) . 

24. Convention on Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, 
May 18, 1977, 31 U.S.T. 333; 1108 U.N.T.S. 152 [hereinafter ENMOD Convention]. 

206 Protection of the Environment During Armed Conflict 

25. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to Protection of Victims of 
International Armed Conflicts, June 8, 1977, 1 125 U.N.T.S. 3; see also Protocol Additional to Geneva Conventions of 
12 August 1949, and Relating to Protection of Victims of Non-International Armed Conflicts, June 8, 1977, id. 609. 
Although the United States is likely to ratify Additional Protocol II, the Reagan Administration had serious 
reservations concerning Additional Protocol I and did not seek U.S. Senate advice and consent for it. Letter of 
Transmittal from President Reagan to the U.S. Senate, Jan. 29, 1987; Letter of Submittal from Secretary of State 
Shultz to President Reagan, Dec. 13, 1986, in Message from the President of the United States Transmitting the 
Protocol II Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of 
Noninternational Armed Conflicts, Concluded at Geneva on June 10, 1977, S. Treaty Doc. No. 100-2, 100th Cong., 
1st Sess. (1987), reprinted in 26 I.L.M. 561 (1987). Many Additional Protocol I signatories filed declarations or 

26. Convention for Amelioration of the Condition of Wounded and Sick in Armed Forces in the Field, Aug. 12, 
1949,6 U.S.T. 3114; 75 U.N.T.S. 31; Convention for Amelioration of Wounded, Sick and Shipwrecked Members of 
Armed Forces at Sea, Aug. 12, 1949, id. 3217; 75 U.N.T.S. 85 [hereinafter Second Geneva Convention]; Convention 
Relative to Treatment of Prisoners of War, Aug. 1 2, 1 949, id. 33 16; 75 U.N.T.S. 135; Convention Relative to Protection 
of Civilian Persons in Time of War, Aug. 12, 1949, id. 3516; 75 U.N.T.S. 287 [hereinafter Fourth Convention], 
provisions of which bear, directly or indirectly, on environmental issues during armed conflict. 

27. U.N. S.C. Res. 687, U.N. Doc. S/RES/687 (1991), reprinted in 30 I.L.M.846 (1991); U.N. General Assembly 
Resolution 47/37 (1992) also declared that existing international law prohibits environmental damage and depletion 
of natural resources, e.g. destruction of oil wells and releasing oil into the sea as occurred during the 1990-91 war. 

28. See generally Birnie & Boyle, International Law and the Environment (1994) at 128; Diederich, "Law of 
War" and Ecology - A Proposal for a Workable Approach to Protecting the Environment Through the Law of War, 1 36 Mil. 
L. Rev. 137, 160(1992); Lijnzaad & Tanja, supra n. 2, at 189-200; Morris, Protection of the Environment in Wartime: The 
United Nations General Assembly Considers the Need for a New Convention, 27 Int'l Law. 775 (1993); Sharp, supra n. 2, at 
3; Plant, Elements of a "Fifth Geneva" Convention on the Protection of the Environment in Time of Armed Conflict, in 
Environmental Protection, supra n. 2, at 37; Plant, Government Proposals and Future Prospects, in id. 170; Plant, Legal 
Aspects, supra n. 1 1 , at 229-3 1 ; Plant, Responses to the London Conference and the Ottawa Conference of Experts on the Use 
of the Environment as a Tool of Conventional Warfare, 10-12 July 1991, in Environmental Protection, supra at 161; 
Terry, The Environment and the Laws of War: The Impact of Desert Storm, 45 Nav. War C. Rev. 60, 65 (1992). 

29. U.N.G.A. Res. 47/37, supra n. 27; Morris, supra n. 28, at 780. 

30. Group of International Lawyers & Naval Experts, San Remo Manual on International Law 
Applicable to Armed Conflicts at Sea (Doswald-Beck ed.1995) [hereinafter San Remo Manual], analyzed by 
Doswald-Beck, The San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 89 A. J. I. L. 192 (1995), 
the first compilation of the law of naval warfare since the London Declaration Concerning the Laws of Naval War, 
Feb. 26, 1909 [hereinafter London Declaration], reprinted in The Law of Naval Warfare: A Collection of 
Agreements and Documents with Commentaries (Ronzitti ed. 1988) at 223 [hereinafter Law of Naval Warfare], 
an unratified multilateral treaty, and Institut de Droit International, Oxford Manual of Naval War (1913) [hereafter 
Oxford Manual], reprinted in Law of Naval Warfare, supra at 277. When World War I began, France and Russia 
tried to comply with the Declaration; Germany and Austria-Hungary adopted parts; the United Kingdom adopted 
it with additions and modifications, which were imitated by France, Italy and Russia. The Declaration became a 
propaganda issue and after further modifications was withdrawn in 1916. The United Kingdom explained that it was 
returning to the historic and admitted rules of the law of nations. 2 O'Connell, supra n. 19, at 1 104; see also Colombos, 
supra n. 20, §§ 503-06. Today, the Declaration is considered to be a mixed bag of accepted rules, plus principles no 
longer relevant, in modern sea warfare. Stone, Legal Controls of International Conflict (2d ed. 1959) at 109; 
Kalshovcn, Commentary, in Law of Naval Warfare, supra at 257, 273-74. Nor did the Oxford Manual achieve its goal 
of restating the rules. Verri, Commentary, in id. at 329, 340. Before and after these publications, naval powers have 
published compilations that have received acceptance by commentators, albeit with differing views on some points. 
See, e.g., U.S. Department of the Navy, Commander's Handbook on the Law of Naval Operations, NWP 9 (Rev. A)/FMFM 
1-10 [hereafter NWP 9 (Rev. A)], analyzed in The Law of Naval Operations (Nav. War C. Int'l L. Stud., v. 64, 
Robertson ed. 1991). Sources such as the Declaration, the Oxford Manual, the San Remo Manual and NWP 9A, can 
strengthen the authority of custom or general principles and are secondary sources in any event. I.C.J. Statute, Art. 
38(1); Restatement of Foreign Relations Lawofthe United States sees. 102-03 (1987) [hereinafter Restatement 
(Third)]; Brownlie, Principles of Public International Law (4th ed. 1990) at 5. 

31. Convention on the Continental Shelf, Apr. 29, 1958 [hereinafter Continental Shelf Convention], 15 U.S.T. 
471, 499 U.N.T.S. 311; Convention on the High Seas [hereinafter High Seas Convention], Apr. 29, 1958, 13 id. 2312; 
450 U.N.T.S. 82; Convention on Fisheries and Conservation of the Living Resources of the High Seas, Apr. 29, 1958 
[hereinafter Fishery Convention], 17 id. 138, 559 U.N.T.S. 285; Convention on the Territorial Sea and Contiguous 
Zone, Apr. 29, 1958 [hereinafter Territorial Sea Convention], 15 id. 1606; 516 U.N.T.S. 205, [collectively cited 
hereinafter as the 1958 LOS Conventions]. The preamble of the High Seas Convention declares that it restates 

Walker 207 

customary international law, and is considered to restate customary law. Many, but not all, of the provisions of the 
other Conventions reflect customary international law. Annotated Supplement to NWP 9 (Rev. A), supra n. 30, para. 
1.1 at 1-2 n. 4; cf. 1 O'Connell, the International Law of the Sea (Shearer ed. 1982) at 385, 474-76. 

32. E.g., Convention for Regulation of Whaling, Sept. 13, 1931, 49 Stat. 3079; 155 L.N.T.S. 349, supplemented 
by Convention for Regulation of Whaling, Dec. 2, 1946, 62 id. 1716; 161 U.N.T.S. 72, modified by Protocol, Nov. 19, 
1956, 10 U.S.T. 952; 338 U.N.T.S. 366. There are many amendments to the Protocol Schedule. See U. S. Department 
of State, Treaties in Force (1995) 443-44 [hereinafter TIF]. 

33. E.g., 1914 SOLAS, supra n. 21, applying only to passenger ships; Regulations for Preventing Collisions at 
Sea, July 15, 1972, 28 U.S.T. 3459; 1050 U.N.T.S. 16, [collectively hereinafter 1972 Colregs], reprinted in part as a 
composite document in 6 Benedict, supra n. 22, Doc. 3-4; Convention for Safety of Life at Sea, Nov. 1, 1974, 32 U.S.T. 
47, amended by Protocol, Feb. 17, 1978, 32 U.S.T. 5577 and as further amended; Proces-verbal of Rectification to 
SOLAS 1974, T.I.A.S. 10626, and other amendments [hereinafter 1974 Solas], reprinted and summarized in 6B & 6C 
Benedict, supra, Docs. 14-1, 14-2, 14-6 -14-20. What began as a single treaty in 1914 to regulate passenger liner safety, 
and thereby minimize losses by sinkings and therefore pollution of the sea from fuel (e.g. oil) and cargoes, has expanded 
into two sets of international agreements, Solas (dealing primarily with internal safety of vessels) and Colregs 
(establishing rules for safe navigation of vessels in relation to each other and thereby contributing to environmental 
protection through collision minimization), which contribute indirectly to a cleaner maritime environment. Before 
becoming party to these agreements, many States had legislation governing rules of the road, e.g. Act to Adopt 
Regulations for Preventing Collisions at Sea, ch. 802, 26 Stat. 320, which collectively could be argued to be State 
custom on the point. Brownlie, supra n. 30, at 5. Today, national legislation implements the agreements for many 
countries, including navigation of internal waters, although the 1972 Colregs, supra, rule 1(b), 28 U.S.T. at 3467, 
allows States to declare national rules for internal waters. The United States has special internal waters rules. See 
Inland Rules, 33 U.S.C. §§ 2001-38 (1994); demarcation lines are published in 33 C.F.R §§ 80.01-80.175 (1994). Of 
particular interest to navies in reducing collision risks, and therefore the risk of pollution resulting from accidents, 
are incidents at sea agreements, e.g., Agreement on Prevention of Incidents on and over the High Seas, May 25, 1972, 
USSR-U.S., 23 U.S.T. 1168; 852 U.N.T.S. 151, and Protocol; May 22, 1973, 24 U.S.T. 1063, supplemented by 
Agreement on Prevention of Dangerous Military Activities, June 12, 1989, reprinted in 28 I.L.M. 877 (1989); see also 1 
Brown, the International Law of the Sea (1994) at 285; Nagle, Note, The Dangerous Military Activities Agreement: 
Minimum Order and Superpower Relations on the World's Oceans, 31 Va. J. Int'l L. 125 (1990). 

34. Hague Convention (VIII) Relative to Laying of Automatic Submarine Contact Mines, Oct. 18, 1907, Arts. 
1-6, 36 Stat. 2332, 2343-44; Hague Convention (IX) Concerning Bombarded by Naval Forces in Time of War, Oct. 
18, 1907, Arts. 1-4, id. 2351, 2363-64. 

35. Protocol for Prohibition of Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological 
Methods of Warfare, June 17, 1925, 94 L.N.T.S. 65, with U.S. no-first-use reservation, Dec. 16, 1974, 26 U.S.T. 571-72. 

36. Treaty on Protection of Artistic and Scientific Institutions and Historic Monuments, Apr. 15, 1935, Arts. 
1-3, 49 Stat. 3267, 3268-70; 167 L.N.T.S. 289, 290 [hereinafter Roerich Pact]. 

37. See, e.g., Fourth Geneva Convention, supra n. 26, Arts. 14-15, 18-19, 53, 147 and 154, whose provisions along 
with Hague IX, supra n. 34, are protective of the environment when its provisions covering safe areas for the wounded, 
sick and aged, and children, expectant mothers and mothers of small children, hospital areas, convoys, and destruction 
of property, coincidentally include environmentally sensitive areas. 

38. Convention for Protection of Cultural Property in Event of Armed Conflict, and Protocol, May 14, 1954, 249 
U.N.T.S. 215, superseding and supplementing Hague IX, supra n. 34, and Roerich Pact, supra n. 36. 

39. U.N. Convention on the Law of the Sea, Dec. 10, 1982, U.N. Doc. A/CONF.62/122 (1982), reprinted in 21 
I.L.M. 1261 (1982) [hereinafter 1982 LOS Convention]. 

40. Guyana ratified the 1982 LOS Convention, supra n. 39, on Nov. 16, 1993, and it is now in force for ratifying 
States. As of Feb. 23, 1995, 73 States had ratified the Convention. Status of the Convention and Agreement, 6 U.S. Dep't 
St. Dispatch Supp. No. 1, at 53 (1995). The Clinton Administration sent the Convention to the Senate for advice and 
consent, together with a supplemental protocol, commonly known as the "Boat Agreement," which would amend 
parts of the deep seabed articles. The United States had declined to sign the Convention in 1982 because of 
objectionable terms in articles dealing with deep seabed mining. See President of the United States, Message 
Transmitting United Nations Convention on the Law of the Sea, with Annexes, Done at Montego Bay, December 10,1 982 (the 
"Convention "), and the Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of 
the Sea of December 10, 1982, with Annex, Adopted at New York, July 28, 1994 (the "Agreement"), and Signed by the United 
States, Subject to Ratification, on July 28, 1994, S. Treaty Doc. No. 103-39, 103d Cong., 2d Sess. (1994) [hereinafter S.Doc. 
103-39], reprinted in part in 6 U.S. Dep't St. Dispatch Supp. No. 1, at 1-52 (1995). Many countries have consented to 
be bound by the Boat Agreement, have signed it, or have agreed to apply it provisionally. The United States is in the 
last category. Status of the Agreement, supra. The United States has recognized the Convention's navigational 
articles — the principal interface for the law of naval warfare and the law of the sea — as representing customary 
international law for over a decade. President Reagan, United States Ocean Policy, Mar. 10, 1983, 19 Weekly Comp. 

208 Protection of the Environment During Armed Conflict 

Pres. Doc. 383 (Mar. 14, 1983). Commentators generally agree that these Convention provisions reflect customary 
international law. See, e.g., NWP 9 (Rev. A), supra n. 30, para. 1.1; Restatement (Third), supra n. 30, Part V, Introductory 
Note, at 3-5 (1987); cf Moore, Introduction to 1 Nordquist, United Nations Convention onthe Law ofthe Sea 1982: 
A Commentary (1985) at xxviii; Oxman, International Law and Naval and Air Operations at Sea, in Law of Naval 
Operations, supra, n. 30, at 19, 29; but see 1 O'Connell, supra n. 3 1 , at 4849. O'Conncll researched id. through 1978, 
using drafts of the evolving Convention, but died before the final version was available. Shearer made changes and 
additions, publishing before final negotiations produced the Convention. Shearer, Editor's Preface to id., at vii. Hence, 
O'ConnelTs volumes may reflect views ofthe decade before Restatement (Third), supra, was published. In 1983, the 
United States claimed a 200-mile exclusive economic zone (EEZ) in accordance with 1982 LOS Convention principles. 
Proclamation No. 5030, 48 Fed. Reg. 10605 (Mar. 10, 1983). In 1988, the United States claimed a 12-mile territorial 
sea in accordance with the Convention. Proclamation No. 5928, 54 id. Ill (Dec. 27, 1988). Analysis ofthe Convention 
as modified by the Boat Agreement has been favorable. See Law ofthe Sea Forum: The 1994 Agreement on the Seabed 
Provisions ofthe Convention on the Law ofthe Sea, 88 A. J. I. L. 687 (1994). U.S. Department of Defense, National Security 
and the Convention on the Law ofthe Sea (July 1994) urged advice and consent, stressing the Convention's importance 
for national security. 

41. 1982 LOS Convention, supra n. 39, Art. 311(1), specifically declaring that the Convention prevails, as among 
States party to it, over the 1958 LOS Conventions, supra note 31. 

42. Annotated Supplement to NWP 9 (Rev. A), supra n. 30, Table ST1-1; U.N. Pub. Sales No. E.83.V.5, supra n. 
39, at 190. 

43. Vienna Convention on the Law of Treaties, May 23, 1969 [hereinafter Vienna Conventions], Art. 18, 1155 
U.N.T.S. 331,336; Sinclair, The Vienna Convention on the Law of Treaties (2d ed. 1984) at 19, 42-44 (provisions 
may have gone beyond customary rules); Restatement (Third), supra n. 30, sec. 312(3), cmt. i & r.n.6; U.N.G.A. Res. 
59a, 38 U.N. GAOR, Supp. No. 47, at 48 (1983) (calling on all States to refrain from actions undermining 1982 LOS 
Convention, supra n. 39). 

44. The United States and many commentators have said that the Convention's navigational articles restate 
customary law. See supra n. 40. 

45. Diederich, supra n. 28, at 43-44, notes that the U.N. Charter has no direct reference to environmental concerns 
but that this could be subsumed under id., Arts. 1(3>(4). 

46. U.N. Charter, Art. 103. This applies to U.N. Members' obligations under U.N. Security Council decisions 
pursuant to Arts. 25, 48. Reisman, The Constitutional Crisis in the United Nations, 87 A.J.I.L. 83, 87 (1993). Art. 103's 
rule, analogous to the supremacy clause of U.S. Const., Art. VI with respect to the laws ofthe 50 states ofthe United 
States, is at variance with traditional treaty construction rules. Although later treaties on the same subject usually 
supersede earlier ones, the reverse — i.e., earlier treaties prevailing over later ones — is generally not true unless the 
later agreement declares it is subject to the earlier one. Cf. Vienna Convention, supra n. 43 Arts. 5, 30; see also 
Restatement (Third), supra, n. 30 sec. 323; Sinclair, supra, n. 43, at 85-87, 94-95, 160, 184-85, 246. 

47. 1982 LOS Convention, supra n. 39. Art 237. Art. 237 is a lex specialis for Part XII ofthe Convention, i.e., its 
provisions for protecting the marine environment. 4 Nordquist, supra n. 20, para 237.7(a)(1991); 1982 LOS 
Convention, supra, Art. 311(5) permits such. 5 Nordquist, United Nations Convention on the Law ofthe Sea 1 982: 
A Commentary para 311.11,(Rosenne& Sohneds. 1989) at 243;seea/$oCharney, The Marine Environment and the 1982 
United Nations Convention on the Law ofthe Sea, 28 Int'l Law. 879, 884 (1994). Art. 237(1) states a recognized way to 
preserve the force of a prior treaty, subject to the consistency limitation of Art. 237(2). Vienna Convention, supra n. 
43, Art. 30(2). 1 Oppenheims International Law (Jennings & Watts eds. 1992) sec. 590 at 1213 [hereinafter 1 
Oppenheim]; Restatement (Third), supra n. 30, sec 323(1); Sinclair, supra n. 43, at 97-98. 

48. 1982 LOS Convention, supra n. 29, Art. 311(2). Presumably this includes 1972 Colregs and 1974 Solas, 
supra, n. 33. 

49. This might be contrasted with 1982 LOS Convention, supra n. 39, Art 31 1(1), expressly superseding the 1958 
LOS Conventions, supra n. 31, where 1982 Convention parties are also parties to the 1958 agreements. If, in a particular 
situation, a country is party to the 1958 Conventions but is not party to the 1982 LOS Convention, and the other 
country is party to the 1982 Convention and was party to the 1958 Conventions, the 1958 rules apply. Vienna 
Convention, supra n. 43, Art. 30(4Xb); Restatement (Third), supra n. 30, sec. 323(3)(b); Sinclair, supra, n. 43 at 94. To 
the extent that custom, general principles or perhaps secondary sources such as court decisions or commentators 
would conflict with a treaty norm in either the 1982 or the 1958 treaties at issues, those conflicting rules would be 
thrown into the decision matrix. If the customary rule, principle or other source is the same as the treaty rule, the 
latter is strengthened. I.C.J. Statute, Arts. 38, 59; Vienna Convention, supra, Preamble, Arts. 38, 43 (recognizing the 
independent vitality of custom); Brownlie, supra n. 30 at 12-19; D'Amato.the Concept of Custom in International 
Law (1971) at 104-06, 1 14, 136, 164; Von Glahn, Law Among Nations (5th ed. 1986) at 25 (recognizing principles as 
a gap-filler); 1 Oppenheim, supra n. 47, sec. 11, at 33-36; Restatement (Third), supra n. 30, sees. 102-03 (recognizing 
principles as primarily a gap-filler); Schachter, International Law in Theory and Practice (1991) at 49-65, 74-81 
(same); Sinclair, supra n. 43, at 6, 9-10, 102-03; Akchurst, Custom as a Source of International Law, 47 Brit. Y.B. Int'l 

Walker 209 

L. 1, 49-52 (1974); Robertson, Contemporary International Law: Relevant to Today's World?, 45 Nav. War C. Rev. 89, 
91-94 (Summer 1992). High Seas Convention, supra n. 31, has been generally recognized as stating customary rules. 
To the extent that these principles carry forward into the 1982 LOS Convention, they stand on quite firm ground 
indeed. This is particularly important in the context of the relationship among the law of the sea, the law of armed 
conflict, and the emerging law of the environment as it applies to high seas operations. 

50. 1982 LOS Convention supra n. 39, Arts. 192-237. 

51. See generally, e.g., id., Arts. 21(1X0, 22(2), 23, 28(2), 33, 39(2)(b), 42(l)(a)-42(l)(b), 42(2>42(5), 43(b), 44, 
56(l)(bXiii), 56(3), 60(1), 61-72, 80, 94(4)(c), 94(7), 116, 122-23, 145-46, 147(1), 147(2Xb), 147(c), 149, 233, 303; for 
further analysis see 2 Nordquist, United Nations Convention on the Lawofthe Sea 1982: A Commentary, (Nandan, 
et al. eds. 1993) paras. 22.1-22.9, 23-1-23-9, 39.1-39.10(1), 42.1-41.1.10(1), 43.1-43.8(e), 44.1-44.8(c), 61.1-61.12(k), 
62.1-62.16(1), 63.1-63.12(0, 64.1-64.(9X0, 65.1-65.16(i), 66.1-66.9(g), 67.1-67.8(e), 68.1-68.5(b), 69. 1-69. 17(h), 
70.1-70.1 1(d), 71.1-71.9(c), 72.1-71. 10(h), 303.1-303.10; S. Doc. 103-39, 6 U.S. Dep't St. Dispatch, Supp. No. 1, at 23, 
25-28,51; Restatement (Third), supra n. 30, sees. 457, r.n. 7;461,cmt. e; 512; 523(l)(bXii) & cmt.d. Some provisions 
of the Convention echo the 1958 LOS Conventions. See, e.g., Fishery Convention, supra n. 31, Arts. 1-8, 13; High Seas 
Convention, supra n. 31, Arts. 10, 11(1), 13. 

52. The Stockholm Conference also "had a great influence for later deliberations on the protection and 
preservation of the marine environment" in later U.N. Committees and in the 1982 LOS Convention negotiations. 
Introduction, para. XII. 11, in 4 Nordquist, supra n. 20, at 8-9; Restatement (Third), supra n. 30, Part IV ', Introductory 
Note, at99; see a/so Birnie & Boyle, supra n. 28, at 39-53; Petsonik, The Role of the United Nations Environment Programme 
(UNEP) in The Development of International Environmental Law, 5 Am. U.J. Int'l L. & Pol. 351 (1990). The Conference 
Report included a Declaration on the Human Environment [hereinafter Stockholm Declaration] with 26 Principles, 
an Action Plan for the Human Environment, and various resolutions. See 1 1 1.L.M. 1416 (1972). Principle 6 states in 
part that "[Discharge of toxic ... or other substances and the release of heat in such quantities or concentrations as 
to exceed the capacity of the environment to render them harmless, must be halted ... to ensure that serious or 
irreversible damage is not inflicted on ecosyustems." Principle 7 declares that "States shall take all possible steps to 
prevent pollution of the seas by substances . . . liable to create hazards to human health, to harm living resources and 

marine life, to damage amenities or to interfere with other legitimate uses of the sea " Principle 21 says States must 

achieve a balance between exploiting their resources and their responsibility to see that this does not harm others' 

States have, in accordance with the [U.N. Charter] and the principles of international law, the sovereign right 
to exploit their own resources pursuant to their own environmental 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. 

Principle 22 would require "States [to] co-operate to develop further the international law regarding liability and 
compensation for the victims of pollution and other environmental damage caused by activities within the jurisdiction 
or control of such States to areas beyond their jurisdiction. . . ." Principle 26 protested nuclear weapons, and other 
weapons of mass destruction, with a plea for agreements to eliminate and destroy them. Id, at 1418, 1420-21. U.N. 
Environmental Programme Participation Act of 1973, Pub. L. No. 93-188, sec. 2, 87, Stat. 713, declared U.S. 
Congressional policy "to participate in coordinating efforts to solve environmental problems of global and 

international concern " Two years later, U.N.G.A. Res. 3281, Charter of Economic Rights and Duties of States, at Arts. 

29-30, reprinted in 14 I.L.M. 251 (1975), reiterated nations' duties to use the sea for peaceful purposes to preserve the 
environment. These resolutions, except insofar as they restated customary or conventional law, were not binding on 
U.N. Members. U.N. Charter, Arts. 10, 14. See infra n. 62 and accompanying text. 

53. Kuwait Regional Convention for Co-operation on Protection of the Marine Environment from Pollution, 
Apr. 24, 1978, 1140 U.N.T.S. 133 [hereinafter Kuwait Regional Convention]; Protocol concerning Co-operation in 
Combating Pollution by Oil and Other Harmful Substances in Case of Emergency, Apr. 24, 1978, 1 140 U.N.T.S. 201 
[hereinafter Kuwait Protocol]. All countries bordering the Persian Gulf were signatories: Baharain, Iran, Iraq, Kuwait, 
Oman, Qatar, Saudi Arabia, U.A.E. The Convention and Protocol went into force July 1, 1979. Salter, supra n. 2, at 
351. Kuwait Regional Convention. Protocol on Pollution Resulting from Exploration and Exploitation of the 
Continental Shelf, Mar. 29, 1989, has been signed. 1 Brown, supra n. 33, at 355-56. 

54. Convention for Conservation of the Red Sea and Gulf of Aden Environment, Feb 14, 1982, reprinted in 2 
Wallace, supra n. 20, at 2282 [hereinafter Red Sea Convention]; Protocol Concerning Regional Co-operation in 
Combating Pollution by Oil and Other Harmful substances in Cases of Emergency, Feb 14, 1982 [hereinafter Red Sea 
Protocol], reprinted in id. at 2293. Signatories include Jordan, Palestine Liberation Organization for Palestine, People's 
Democratic Republic of Yemen, Saudi Arabia, Somalia, Sudan and Yemen Arab Republic, all bordering the Red Sea 
and Gulf of Aden, but any Arab League member can accede to the Convention. Red Sea Convention, supra, Preamble, 
Art. 26(2), id, at 2282, 2291. 

55. See generally, DOD Report, supra n. 2, at 48-63, 88-181, 221. 

21 Protection of the Environment During Armed Conflict 

56. E.g., Kuwait Regional Convention, supra n. 53, Arts. 16-18; Kuwait Protocol, supra n. 53, Arts. 3, 5-13; Red 
Sea Convention, supra n. 54, Arts. 16-20, 22, 24; Red Sea Protocol, supra n. 54, Arts. 3, 5-13. Another recent example, 
involving U.S. participation, is a package of agreements governing protection of the South Pacific Ocean. Convention 
for Protection of Natural Resources and Environment of the South Pacific Region, Nov. 24, 1986, reprinted in 26 1.L.M. 
38(1986); Protocol for Prevention of Pollution of the South Pacific Region by Dumping, Nov. 24, 1986, reprinted in id, 
65 (1986); Protocol Concerning Co-operation in Combating Pollution Emergencies in the South Pacific Region, Nov. 
24, 1986, reprinted in id, 59 (1986); see also U.S. Understanding, S. Treaty Doc. 101-21, at 53. 

57.See,e.g., 1982 LOS Convention, supra n. 39, Arts. 23, 39, 41(5), 43(a), 94(4Xc), 94(5), 197,200-02,207-12,217, 
221-22, 303; see also 5 Nordquist supra n. 47, paras. 311.8m 311.11. 

58. Vienna Convention, supra n. 43, Preamble, Arts. 38, 43. 

59. See generally I.C.J. Statute, Arts. 38, 59; Restatement (Third), supra n. 30, §§ 102-03. 

60. Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.) [hereinafter Nicaragua Case], 
1986 I.C.J. 14, 31-38, 91-135; Corfu Channel Case (U.K. v. Alb.), 1949 I.C.J. 4, 22. 

61.Akehurst, supra n. 49, at 49-52. The 1982 LOS Convention, supra n. 39, Art. 22(1), seems to anticipate this 
possibility with respect to proportionate anticipatory action to ward off pollution threats. Art. 310 states: 
Article 309 does not preclude a State, when signing, ratifying or acceding to this Convention, from 
making declarations or statements, however phrased or named, with a view, inter alia, to the 
harmonization of its laws and regulations with the provisions of this Convention, provided that 
such declarations or statements do not purport to exclude or to modify the legal effect of the 
provisions of this Convention in their application to the State. 
Art. 309 forbids reservations or exceptions to the Convention and is the reason for the Boat Agreement, supra n. 40, 
to amend Part XI of the Convention. See supra n.40 and accompanying text. Such statements, taken collectively, 
arguably could articulate custom apart from the Convention. However, occasional presence of clear, contradictory 
authorizations for custom, e.g., Art 22(1), plus the "obscurity and uncertainty" of Art. 31 0's meaning — cf. 5 Nordquist, 
supra n. 47, para 310.5 — indicate that custom and other sources can be considered alongside Convention norms. 
Certainly this is true for the law of naval warfare, largely customary in source, which enters through the "other rules" 
clauses, with which the Convention is replete. 

62. U.N. Members must comply with Security Council "decisions" under U.N. Charter, Arts, 25, 41, 48; these 
supersede treaty obligations. Id., Art. 103; Reisman, Constitutional Crisis, supra n. 46 at 87. The Council may also 
recommend action or call upon States for action pursuant to U.N. Charter, Arts. 39-41, or the General Assembly may 
recommend action under id., Arts. 10, 14, but these resolutions do not have the binding force of decisions, although 
they may restate customary or treaty norms and thereby strengthen them. Bailey, The Procedure of the U.N. 
Security Council (2d ed. 1988) ch. 3.6; Brownlie, supra n. 30, at 5, 699-700; Castenada, Legal Effects of United 
Nations Resolutions (Amoia trans. 1969) at ch.3.j; Goodrich et al., Charter of the United Nations (3d rev. ed. 
1969) 111-14, 141-45, 207-11, 290-314, 334-37, 614-17; Restatement (Third), supra, n. 30, sees. 102, cmt. g; 103(2Xd), 
cmt. c & r.n.2; Schachter, supra n. 49, ch. 6; Simma, The Charter of the United Nations: A Commentary (1994), 
at 236-42, 270-87, 409-18, 614-16, 618, 626-28, 631-35, 651, 11 18-25. 

63. Jus cogens is a fundamental norm that would override rules in treaties and custom, two primary sources of 
international law stated \vi,e.g., I.C.J. Statute, Arts. 38, 59; Restatement (Second), supra n. SO, sees. 102-03. Its contours 
are vague and depend on a commentator's views, which can range from expansive (e.g., those of the former U.S.S.R., 
whose jurisprudence may still have influence) to totally deprecatory. See generally Vienna Convention, supra n. 43, at 
53, 64, considered by Sinclair, supra n. 43, at 17-18, 218-26, to be progressive development; Elias, The Modern Law 
of Treaties, (1974) at 177-87; 1 Oppenheim, supra n. 47, sees. 2, at 8 & n. 2; Restatement (Third), supra n. 30 sec. 
338(e); Tunktn, Theory of International Law, (Butler trans. 1974) at 98; Alexidze, Legal Nature of Jus Cogens in 
Contemporary International Law, 172 R.C.A.D.I. 219, 262-63 ( 198 1 ); Hazard, Soviet Tactics in International Law Making, 
7 Den. J. Int'l L. & Pol. 9, 25 (1977); Arechaga, International Law in the Past Third of a Century, 159 R.C. A.D.I. 1, 68 
(1978); Weisburd, 77i* Emptiness of the Concept of Jus Cogens. As Illustrated by the War in Bosnia-Herzegovina, 17 Mich. 
J. Int'l L. 1 (1995). The I.C.J, held in the Nicaragua Case, supra n. 60, that U.N. Charter, Art. 2(4), was customary law 
having the character of jus cogens. The 1979 U.S.S.R invasion of Afghanistan, pursuant to a 1978 agreement, was 
condemned in part under Vienna Convention, supra, Art. 53 principles. States — International Status, Attributes & 
Types, 1979 Digest sec. 1, at 34, quoting Memorandum from Owen, U.S. Department of State Legal Adviser, to 
Christopher, Acting Secretary of State, Dec. 29, 1979. A more interesting issue, left unanswered by the Charter, is the 
place of customary law or general principles varying from the Charter's terms as a treaty. This was not resolved in the 
Nicaragua Case, supra. The Charter, Art. 103, speaks of "obligations" under treaties, and whether this includes custom 
and perhaps principles, is debatable. Simma, supra n. 62, at 1 1 18-25, would argue for Charter supremacy. Perhaps 1 
Oppenheim, supra, would agree if the Charter norm is;u5 cogens in nature. One competing factor is the force of national 
sovereignty; if U.N. Members gave up freedom to make treaties to the measure of U.N. Charter, Art. 103, that does 
not necessarily mean that they gave up the sovereign right to build contrary custom, under this theory. See e.g., U.N. 
Charter, Arts. 2(1), 2(7); 1982 LOS Convention, supra n. 39, Art. 157(3); Vienna Convention, supra n.43, Preamble; 

Walker 211 

U.N. Secretary-General, A n Agenda for Peace: Report of the Secretary-General on the Work of the Organization, U.N. Doc. 
A/47/277 S/2411 (1991), reprinted in 31 I.L.M. 956, 959 (1992); S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (Ser.A) 4, 18 
[hereinafter Lotus Case]; S.S. Wimbledon (U.K. v. Ger.), 1923 id., No. 1, at 15, 25; Declaration of Principles of 
International Law Concerning Friendly Relations Among States, U.N.G.A. Res. 2625, reprinted in 9 I.L.M. 1292; 
BROWNLiE,sw/>rtf n. 30, ch. 13; Anand, Sovereign Equality of States in International Law, 197 C. A. D.I. 9, 22-51, 189(1986); 
Fitzmaurice, The General Principles of International Law Considered from the Standpoint of the Rule of Law, 92 id, 49-50 
(1957); Lachs, The Development and General Trends of International Law in OurTtime, 169 id, 1, 77-84 (1980); Waldock, 
General Course on Public International Law, 106 id, 1, 156-72 (1962). 

64. Compare e.g., 1982 LOS Convention, supra n. 39, Preamble, Arts. 2(3) (territorial sea), 19, 21, 31 (innocent 
passage), 342(2) (straits transit passage), 45 (straits innocent passage, incorporation by reference of Arts. 19, 21, 31), 
52(1) (archipelagic sea lanes passage), 58(1), 58 (3) (EEZs), 78(2) (continental shelf; coastal State cannot infringe or 
interfere with "navigation and other rights and freedoms of other States as provided in this Convention), 87(1) (high 
seas), 138 (the Area), 303(4) (archaeological, historical objects found at sea; "other international agreements and rules 
of international law regarding the protection of objects of an archaeological and historical nature"), with e.g., High 
Seas Convention, supra n. 31, Art. 2, Territorial Sea Convention, supra n. 31, Art. 1. Although the other 1958 LOS 
Conventions do not include specific "other rules" clauses, they state that they do not affect the status of waters above 
as high seas, in the case of the continental shelf, or other high seas rights, in the case of high seas fisheries. Continental 
Shelf Convention, supra n. 31, Arts. 1, 3, 15; Fishery Convention, supra n. 31, Arts. 1-8, 13. 

65. 1982 LOS Convention, supra n. 39, Art. 87(1). 

66.The General Assembly elects 34 members to the I.L.C. after nominations by governments. The 1958 LOS 
Conventions, supra n. 31, emerged through the I.L.C. See generally, Briggs, The International Law Commission 
(1969); Brownlie, supra n. 30 at 30-31; Schachter, supra n. 49, at 66-69, 71-72; Briggs, Reflections on the Codification 
of International Law by the International Law Commission and by Other Agencies, 126 R.C.A.D.I. 233 (1969); Jennings, 
The Progressive Development of International Law and Its Codification, 24 Brit. Y.B. Int'l L. 301, 310-29 (1947); 
Lauterpacht, Codification and Development of International Law, 49 A.J.I.L. 16 (1955); Rosenne, The International Law 
Commission, 1949-59, 30 Brit. Y.B. Int'l L. 104 (1960). 

67. International Law Commission, Commentary on Vienna Convention on the Law of Treaties, in Report of the 
Commission to the General Assembly, U.N. Doc. A/6309/Rev. 1 (1966) reprinted in 1962(2) Y.B. Int'l L. Comm'n 
267-68; Briggs, Unilateral Denunciation of Treaties: The Vienna Convention and the International Court of Justice, 68 A.J.I.L. 
51 (1974); Boczek, Peaceful Purposes Provisions of the United Nations Convention on the Law of the Sea, 20 Ocean Devel. 
& Int'l L. 359 (1989); Christol & Davis, Cuban Quarantine: The Naval Interdiction of Offensive Weapons and Associated 
Material to Cuba, 1961, 57 A.J.I.L. 525, 53940 (1963); Davidson, United States Protection of Reflagged Kuwaiti Vessels 
in the Gulf War: The Legal Implications, 4 Int'l J. Estuarine & Coastal L. 173, 178 (1989); Fenrick, Legal Aspects of the 
Falklands Naval Conflict, 24 Mil. L. & L. of War Rev. 243, 245 (1983); Lowe, The Commander's Handbook on the Law 
of Naval Operations and the Contemporary Law of the Sea in Law of Naval Operations, supra n. 30, at 109, 132;Oxman, 
The Regime of Warships Under the United Nations Conventions on the Law of the Sea, 24 Va. J. Int'l L. 809, 811 (1984); 
Ronzitti, The Crisis of the Traditional Law Regulating International Armed Conflicts at Sea and the Need for Its Revision in 
Law of Naval Warfare, supra n. 30, at 15; Russo, Neutrality at Sea, supra n. 9, at 384; Thorpe, Mine Warfare at 
Sea - Some Legal Aspects of the Future, 18 id, 255, 257 (1987); Wolfrum, Reflagging and Escort Operations in the Persian 
Gulf: An International Law Perspective, 29 Va. J. Int'l L. 386, 391-92 (1982). Apparent dissenters include 2 O'Connell, 
supra n. 19, at 1 1 12-13, referring to id, 747-69, in the context of the nationality of merchant ships; Low & Hodgkinson, 
supra n. 2, at 421, who discuss Iraq's environmental protection obligations in the LOS context and say nothing about 
the clauses, although id 438-42 elliptically seems to recognize the principle; Okorodudu-Fubara, supra n. 2, at 195-97; 
Rauch, The Protocol Additional to the Geneva Conventions for the Protection of Victims of International Armed Conflicts and 
the United Nations Convention on the Law of the Sea: Repercussions on the Law of Naval Warfare: Report to the Committee 
on the Protection of Human Life in Armed Conflict of the Society for Military Law of War 22-49a (July 1983) (manuscript 
in author's possession). 1 Brown, supra n. 33, at 280 recognizes the similar "other rules" clauses pertaining to high 
seas rights but declares that "freedom of the high seas must be exercised under conditions laid down in the Convention 
and by other unspecified rules of international law." 3 United Nations Convention on the Law of the Sea 1982: A 
Commentary, (Nordquist ed. 1995) [hereinafter 3 Nordquist] at para. 87.9(i) states that "Uses of the high seas for 
military purposes — though restricted in other maritime zones, comes within the scope of the freedom of the high 
seas," citing to 1982 LOS Convention, supra n. 39, Arts. 19(2Xb), 19(2X0. 52(2), (innocent passage). Similar clauses 
in High Seas Convention, supra n. 31, Art. 2, had been interpreted to include freedom to undertake scientific research, 
to explore or exploit high seas subsoil resources and to test nuclear weapons. These are now regulated by 1982 LOS 
Convention, supra, Parts XI & XIII; Treaty on Prohibition of Emplacement of Nuclear Weapons and Other Weapons 
of Mass Destruction on the Sea-bed and the Ocean Floor and in the Subsoil Thereof, Feb. 1 1, 1971, 23 U.S.T. 704; 
955 U.N.T.S. 115 [hereinafter Seabed Treaty]. 

68. 1982 LOS Convention, supra n. 39, Art. 88. The Convention also says that Area use is reserved for peaceful 
purposes, and marine scientific research must be conducted for peaceful purposes. Id., Arts. 141, 143(1), 147(2Xd), 

212 Protection of the Environment During Armed Conflict 

155, 240(a), 242(1), 246(3). Ensuing analysis will be confined to Art. 88; conclusions with respect to it apply mutatis 
mutandis to other "peaceful purposes" provisions. The language originated in Antarctic Treaty, Dec. 1 , 1959, Art. 1(1), 
12 U.S.T. 794, 795; 402 U.N.T.S. 71, 72 and is in Treaty on Principles Governing Activities of States in Exploration 
and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, Art. 4, 18 id. 2410, 2413-14; 
610 U.N.T.S. 205, 207 [hereinafter Space Treaty]; ENMOD Convention, supra n. 24, Art. 3(1), 31 id. at 336; 1108 
U.N.T.S. at 153; Agreement Governing Activities of States on the Moon and Other Celestial Bodies, Dec. 5, 1979, 
Art. 3(1X1363 U.N.T.S. 3,22. 

69. Restatement (Third), supra n. 30, § 521, cmt. b, citing U.N. Charter, Art. 2(4); 1982 LOS Convention, supra 
n. 39, Arts. 88 & 301, and referring to Restatement (Third), supra, § 905, cmt. g; accord, Russo, Targeting Theory in the 
Law of Naval Warfare, 30 Nav. L. Rev. 1,8(1 992); see also 2 Nordquist, supra, n. 67, paras. 87.9(i), 88. 1 -88-7(d). Boczek, 
supra n. 67; Oxman, Regime of Warships, supra n. 67, at 814, 829-32; Parkerson, International Legal Implications of the 
Strategic Defense Initiative, 116 Mil. L. Rev. 67, 79-85 (1987). 

70. U.N. Charter, Art. 103; see also supra n. 46 and accompanying text. 
l\.See supra nn. 46-49 and accompanying text. 

72. U.N. Charter, Art. 51; see also S. Doc. 103-39, 6 U.S. Dep't St. Dispatch, Supp. No. 1, at 51. There is a debate 
as to whether anticipatory self-defense, as opposed to "reactive" self-defense where an aggressor must strike the first 
blow before a right of self-defense is triggered, is permitted in the Charter era. The U.S. view, supported by many 
researchers, is that anticipatory self-defense is permissible in the Charter era under Caroline Case limitations, i.e. when 
there is a clear necessity that is instant, overwhelming and leaves no choice of peaceful means, see NWP 9A, supra n. 
30, para., citing Caroline Case, letter of U.S. Secretary of State Daniel Webster to U.K. Ambassador Lord 
Alexander B. Washburton, Aug. 6, 1842, 2 Moore, Digest 41 1-12; letter of Secretary Webster to U.K. Minister Henry 
S. Fox, Apr. 24, 1841, in 1 Shewmaker, The Papers of Daniel Webster: Diplomatic Papers (1983) at 58, 67. Some 
scholars take the opposite view. See generally Bowett, Self-Defense in International Law (1958) at 187-93 ; 
Brownlie, International law and the Use of Force by States (1963) at 257-61, 275-78, 366-67; Dinstein, War, 
Aggression and Self-Defense (1988) at 86, 174-79; Henkin, International Law: Politics and Values (1995) at 
121-25; Mcdougal & Feliciano, Law and Minimum World Public Order (1961) at 232-41; Mcnair & Watts, The 
Legal Effects of War (4th ed. 1966) at 16, 18 ; O'Connell, The Influence of law on Sea Power (1979) at 83; 1 
Oppenheim, supra n. 47, sec. 1 27; Schachter, supra n. 49, at 1 50-52; Simma, supra n. 54, at 675-76; Stone, Aggression 
and World Order (1958) at 44; Bunn, International Law and the Use of Force in Peacetime: Do U.S. Ships Have to Take 
the First Hit?, 39 Nav. War C. Rev. 69-70 (1986); Greenwood, Remarks, in Panel, Neutrality, The Rights of Shipping and 
the Use of Force in the Persian Gulf War (Part I), 1988 Proc. Am. Soc'y Int'l L. 158, 159-61 (1990); Lzgoni, Remarks, in 
id. 161, 162; Linnan, Self-Defense, Necessity and U.N. Collective Security: United States and Other Views, 1991 Duke J. 
Comp. & Int'l L. 57, 65-84, 122; Lowe,supra n. 67, at 127-30; McHugh, Forcible Self-Help in International Law, 25 Nav. 
War C. Rev. 61 (No. 2, 1972); Reisman, Criteria for the Use of Force in International Law, 10 Yale J. Int'l L. 279 (1985); 
Turner, State Sovereignty, International Law, and the Use of Force in Countering Low-Intensity Aggression in the Modern 
World, in Legal and Moral Constraints on Low-Intensity Conflict (Nav. War C. Int'l L. Stud., v. 67, Coll, et al. 
eds. 1995) at 43, 62-80 ; Waldock, The Regulation of the Use of Force by Individual Slates in International Law, 8 1 R.C. A.D.I. 
451, 496-99 (1952). Lowe, supra n. 67 at 128, notes that the Nicaragua Case, supra n. 60, at 93, specifically excluded 
considering anticipatory self-defense, and that States will likely rely on it more in the future. 

73. See supra nn. 31-33 and accompanying text. 

74. E.g., Civil Liability Convention, supra n. 22, Art. 3(1), (exclusion of liability due to "act of war, hostilities, 
civil war, [or] insurrection"). The Convention has been modified by 1976 Protocol, supra n. 22, and would be further 
modified by 1984 Protocol, Art. 3, reprinted in 6 Benedict, supra n. 22, Doc. 6A, which extended coverage to parties' 
declared EEZs, or to a 200-mile belt offcoasts of States that have not declared one. The 1992 Protocol, supra n. 22, id., 
Doc. 6B, modifies the Convention in ways irrelevant to this analysis. See generally 2 O'Connell, supra n. 19, at 1008-10. 
Convention on International Civil Aviation, Dec. 7, 1944, Art. 89, 61 Stat. 1 180, 1205; 15 U.N.T.S. 295, 356, declares 
that it applies during war. 

75. E.g., Convention for Prevention of Pollution of the Sea by Oil, May 12, 1954 [hereinafter 1954 Oil Pollution 
Convention], Art. 19, 12 U.S.T. 2989, 3004; 327 U.N.T.S. 3, 18; amendments, Apr. 11, 1962, 17 id. 1523; 600 U.N.T.S. 
332, and Oct. 21, 1969, 28 id. 1205, do not affect this Article; Treaty for Establishment of the European Economic 
Community, Mar. 15, 1957, Arts. 223-26, 1973 Gr. Brit. T.S. No. 1 - Part II (Cmd. 5179-11), 298 U.N.T.S. 3, 88-89. 

76. North American Free Trade Agreement, Dec. 8-17, 1992, Art. 2204, T.I.A.S. No. , reprinted in 32 I.L.M. 

289, 605, 702 (1993) [hereinafter NAFTA]. NAFTA has many environmental protection provisions. NAFTA, supra, 
Arts. 104, 709-24, 901-15, 1101, 1114, 2005, 2014-15, 2101, analyzed in Magraw, Nafta & The Environment: 
Substance and Process (1995) ch. 1 ; Biker, After the NAFTA, 27 Int'l Law. 765, 769 (1993); Garvey, Trade Law and 
Quality of Life — Dispute Resolution Under the NAFTA Side Accords on Labor and the Environment, 89 A.J.I.L. 439 ( 1 995); 
Ludwiszewski, "Green" Language in the NAFTA; Reconciling Free Trade and Environmental Protection, 27 Int'l Law. 691 
(1993); Stewart, 77i* NAFTA: Trade, Competition, Environmental Protection, id. 751 (1993). NAFTA includes a specific 
national security exception, stating inter alia that nothing in it shall be construed to prevent a party from taking actions 

Walker 213 

it considers necessary to protect its "essential security interests," taken during war or other emergency in international 
relations, or to prevent a party from acting pursuant to its obligations under the U.N. Charter for maintaining 
international peace and security. NAFTA, supra, Arts. 2 102(lXb)-2 102(c). A potentially hemispheric agreement, 
NAFTA is subject to the General Agreement on Tariffs and Trade, Oct. 30, 1947, 61(5,6) Stat., 55-61 U.N.T.S. 
[hereinafter GATT]; TIF, supra n. 32, at 355-58, lists GATT amendments. NAFTA, supra, Art.l03(l). GATT, supra, 
An. 21,61(5), is similar to NAFTA, supra, Art. 2102. 

77. E.g., Kuwait Regional Convention and Protocol, supra n. 53; Red Sea Convention and Protocol, supra n. 54. 

78. See supra n. 31 and accompanying text. 

79. Cf. I.C.J. Statute, Arts. 38, 59; Restatement (Third), supra n. 30, sees. 102-03; see also supra nn. 49, 58-61 and 
accompanying text. 

80. Vienna Convention, supra n. 43, Art. 6\;see also Elias, supra n. 63, at 128-30; Restatement (Third), supra n. 
30, § 336, cmt. c & r.n. 3; Sinclair, supra n. 43, at 190-92; International Law Commission, Report on the Work of its 
Eighteenth Session, Report of the Commission to the General Assembly, U.N. Doc. A/6309/Rev. 1 [hereinafter I.L.C. 
Report], reprinted in 2(1974) Y.B. Int'l L. Comm'n 171, 255-56 (noting relative rarity of the practice). Mcnair, The 
Law of Treaties (2d ed. 1961) at 685 does not recognize a separate doctrine, but some of his hypothetical examples 
are impossibility situations. 

81. Vienna Convention, supra n. 43, Art. 62, said declaratory of customary law by Fisheries Jurisdiction (U.K. 
v. Ice.), 1973 I.C.J. 3, IS; see also I.L.C. Report, supra n. 80, at 257-58; Restatement (Third), supra n. 30, sec. 336 & r.n. 
1 ; Sinclair, supra n. 43, at 20, 192-96; Sharp, supra n. 2, at 24-25. For criticism of the Convention approach, substituting 
a new term — fundamental change of circumstances — for the traditional rebus sic stantibus phrase in revising the 
rules, see David, The Strategy of Treaty Termination (1975) ch. 1; Lissitzyn, Treaties and Changed Circumstances, 
61 A.J.I.L. 895 (1967). Elias, supra n. 63, at 1 19-28, says the traditional view oirebus sic stantibus is no longer admissible 
today. For further analysis of pre-Convention practice, see Bederman, The 1871 Declaration. Rebus Sic Stantibus and a 
Primitivist View of the Law of Nations, SI A.J.I.L. 1 (1988); Haraszti, Treaties and the Fundamental Change of Circumstances, 
146 R.C.A.D.I. 1 (1975). U.S. practice has recognized the principle in what today would be considered a maritime 
environmental context. See Lissitzyn, supra, at 908-1 1. 

82. Vienna Convention, supra n. 43, takes no position on the impact of armed conflict on treaties. Attempts to 
insert a Convention provision were defeated. Kearney & Dalton, The Treaty on Treaties, 64 A.J.I.L. 495, 557 (1970). 
Other sources must be examined for applicable law in such situations. Briggs, Unilateral Denunciation, supra n. 67, at 
51. Restatement (Third), supra n. 30, sec. 336 cmt. e & r.n. 4, says war may be a basis for a fundamental change of 
circumstances claim. Others have considered war as a separate ground. See, e.g., Institut de Droit International, The 
Effects of Armed Conflicts on Treaties, Aug. 28, 1985, 61(2) Annuaire 278 (1986); Institut de Droit International, 
Regulations Regarding the Effect of War on Treaties, 1912, 7 A.J.I.L. 153 (1913); Clark v. Allen, 331 U.S. 503 (1947); 
Karnuth v. United States, 279 U.S. 231 (1929); Techtv. Hughes, 128 N.E. 185, 191 (N.Y.), cert, denied, 254 U.S. 643 
(1920); 2 Oppenheim, International Law sec. 99(4>(5) (Lauterpacht, ed., 7th ed. 1952); Davis, The Effects of War 
Upon International Conventions and Private Contracts, 1927 Proc. Am. Soc'y Int'l L. 124-29; Fitzmaurice, The Judicial 
Clauses of the Peace Treaties, 73 R.C.A.D.1. 255, 307-17 (1948); Harvard Draft Convention on the Law of Treaties, Art. 
35(b), 29 A.J.I.L. Supp. 657,664-65 (1935); Hurst, 77* Effect of War on Treaties, 2 Brit. Y.B. Int'l L. 37 (1921); Lenoir, 
The Effect of War on Bilateral Treaties, with Special Reference to Reciprocal Inheritance Treaty Provisions, 34 Geo. L.J. 129 
(1946); Sharp, supra n. 2, at 23-24. 

83. Institut de Droit International, supra n. 82, Arts. 3-4, 61(2) Annuaire at 280; id., Regulations Regarding the 
Effect of War on Treaties, Art. 5, 7 A.J.I.L. 154; 5 Hackworth, Digest (1943) sec. 513, at 383-84; 2 Oppenheim, supra 
n. S2,sec. 99(2), 99(5); Fitzmaurice, Judicial Clauses, supra n. 82, at 312; Harvard Draft Convention, supra n. 82, Art. 
35(a), 29 A.J.I.L. Supp. at 664; Hurst, supra n. 82, at 42. 

84.U.N. Charter, Art. 2(2); Vienna Convention, supra n. 43, Art. 26; Brownlie, supra n. 30, at 616; I.L.C. Report, 
supra note 80, at 211; Kelsen, Pure Theory of Law (Knight trans. 1967) at 216; Mcnair, supra n. 80, at 493-505; 
Restatement (Third),swpra n. 30,sec. 321; Friedmann, The Uses of "General Principles" in the Development of International 
Law, 57 A.J.I.L. 279, 286-87 (1963); Harvard Draft Convention, supra n. 82, Art. 20, 29 id., Supp. at 661 ; Hassan, Good 
Faith in Treaty Formation, 21 Va. J. Int'l L. 443, 480-81 (1981); Nicaragua Case, supra n. 63, 1986 I.C.J, at 135-42. Elias, 
supra n. 63, at 43-44, says that pacta sunt servanda cannot be a jus cogens principle, as Kelsen, supra, would argue, because 
it is subject to exceptions, e.g., fundamental change of circumstances. 

85. Vienna Convention, supra n. 43, Art. 18; see also supra n. 43 and accompanying text. 

86. See generally Symposium, State Succession in the Former Soviet Union and in Eastern Europe, 33 Va. J. Int'l L. 
253 (1993); Walker, Integration and Disintegration in Europe: Reordering the Treaty Map of the Continent, 6 Transnat'l 
Law. 1 (1993). 

87. For an example, see supra nn. 31 & 40 and accompanying text. 

88. I.C.J. Statute, Arts. 38, 59; Restatement (Third), supra n. 30, sees. 102-03; see also supra nn. 49 & 60 and 
accompanying text. 

214 Protection of the Environment During Armed Conflict 

89. "In at least one respect [its terras] are more restrictive than customary international law, namely in the case 
of the territorial sea." 2 O'Connell, supra n. 19, at 994; Charney, Marine Environment, supra n. 47, at 887. 

90. S. Doc. 103-39, supra n. preprinted in 6 U.S. Dep't St. Dispatch Supp. No. 1, at 19. 

91. E.g., 1982 LOS Convention, supra n. 39, Arts. 1(1X4)-1(1X5), 21, 23, 39, 41, 43, 54, 56(lXb)(iii), 60(3), 63, 
66-67,94(7), 116, 123(b), 145-47, 155(2), 162, 165. 

92. Id., Art. 192; compare Stockholm Declaration, supra n. 52, Principle 7; see also 4 Nordquist, supra n. 20, at 
36-43. The U.S. Department of Defense and the Navy view Art. 236 of the Convention and Part XII "as a mandate to 
ensure responsibility for environmentally sound practices." Schachte, The Value of the 1982 U.N. Convention on the 
Law of the Sea: Preserving Our Freedoms and Protecting the Environment, 23 Ocean Devel. & Int'l L. 55, 61 (1992). 

93. See generally 2 Nordquist, supra n. 51, para. 1.23, arguing for an evolving conceptual definition; 4 Nordquist, 
supra n. 20, para. 192.11(a); Tolbert, Defining the Environment, in Environmental Protection, supra, n. 2 at 259. 

94. S. Doc. 103-29, supra n. 40, reprinted in 6 U.S. Dep't St. Dispatch Supp. No. 1, at 19. 

95. 1982 LOS Convention, supra n. 39, Art. 1(1X4); see also 2 Nordquist, supra n. 50, paras. 1.1-1.15,1.22-1.24, 
1.26-1.31; The LOS definition means that the environment is both human and nature centered. See Tolbert, supra n. 
93, at 259. 

96. 1982 LOS Convention, supra n. 39, Art. 193; compare Stockholm Declaration, supra n. 52, Principle 12, 11 id. 
at 1419; see also 4 Nordquist, supra n. 20, at 45-49. Vallarta, Protection and Preservation of the Marine Environment and 
Marine Scientific Research at the Third United Nations Conference on the Law of the Sea, in Symposium, The Law of the 
Sea: Where Now, 46 L. & Contemp. Probs. 146, 149 (1983) said the duty to preserve and protect the environment is a 
jus cogens norm. 

97. "Significant" is not stated as part of the duty in this part of the Convention, but other Convention provisions, 
regional agreements, and commentators have added terms like "major," "serious," "significant" or "substantial." See, 
e.g., 1982 LOS Convention, supra n. 39, Arts. 94(7), 233; Kuwait Protocol, supra n. 53, Art. 1(2); Red Sea Protocol, 
supra n. 54, Art. 1(2); Restatement (Third), supra n. 30, sees. 601(lXb>601(3), 603(l)(a), 603(2); Low & Hodgkinson, 
supra n. 2, at 422-23. Such sources, when combined, can evidence custom. Brownlie, supra n. 30, at 5. 

98. 1982 LOS Convention, supra n. 39, Art. 194(1); see also Restatement (Third), supra n. 30, sec. 603(2). The 
"prevention" theme was partly derived from High Seas Convention, supra n. 31, Arts. 24-25, and limitation to 
"capabilities" from Stockholm Declaration, supra n. 52, Principle 7; 4 Nordquist, supra n. 20, paras. 194.1, 194.10(b). 
Diligent prevention and control are probably binding norms. Cf Birnie & Boyle, supra n. 28, at 95. 

99. 1982 LOS Convention, supra n. 39, Art. 194(2); Restatement (Third), supra n. 30, §§ 601(l)(b), 601(2), 
603(1 Xa), 603(2). 

100. 4 Nordquist, supra n. 20, para. 194.10(e). 

101. Dumping is defined in 1982 LOS Convention, supra n. 39, Art. 1(1X5); see also 2 Nordquist, supra n. 51, 
paras. 1.1-1.15,1.24,1.26-1.31. 

102. 1982 LOS Convention, supra n. 39,Art. 194(3); compare Protocol of 1978 Relating to International Convention 
for Prevention of Pollution from Ships, 1973, Feb. 17, 1978, T.I.A.S. No. — , 1340 U.N.T.S. 61, incorporating by reference 
and amending Convention for Prevention of Pollution from Ships, Nov. 2, 1973, 1340 U.N.T.S. 184 [hereinafter 
collectively MARPOL 73/78], Art. 2(2), Annex II, 1340 U.N.T.S. at 184, 233, defining "harmful substance," not 
explained in the 1982 Convention. 4 Nordquist, supra n. 20, para. 194.10(j). Art. 194(3) is broader in sweep than 
MARPOL 73/78. The language in id., Art. 2(2), defining pollution, is the same as 1982 LOS Convention, supra, Art. 
1(1X4). MARPOL 73/78 parties represent 92 percent of the Earth's merchant tonnage. Bowman & Harris, 
Multilateral Treaties (11th Cum. Supp. 1995) at 295. It is a fair assumption that its terms represent customary 
law; therefore, similar terms used in similar circumstances in the 1982 LOS Convention also restate custom. Brownlie, 
supra n. 30, at 5. The injury must be significant, however. See supra n. 97 and accompanying text. 

103. 1982 LOS Convention, supra n. 39, Art. 194(4). This restates a customary norm. 4 Nordquist, supra n. 20, 
para. 194.10(n); Restatement (Third), supra n. 30, sec. 601 & cmt. a, r.n.l, citing inter alia Draft Articles on State 
Responsibility, Art. 19(3Xd), Report of the International Law Commission, 2(2) Y.B. Int'l L. Comm'n 96, 31 U.N. 
G.A.O.R., Supp. No. 10, at 226 (1976). 

104. 1982 LOS Convention, supra n. 39, Art. 194(5). Ice-covered areas, governed by id., Art. 234, are an example 
of such sensitive environments. 4 Nordquist, supra n. 20, para. 194. 10(o), noting that International Law Commission, 
Report on the Work of the 42d Session, ch. IV, para. 3 1 2, sec. C, item 2, Art. 22, Commentary, para. (2), 45 U.N. G. A.O.R., 
Supp. No. 10 (1990), reprinted in 2(2) Y.B. Int'l L. Comm'n 57 (1990) defines "ecosystem" as "an ecological unit ... of 
living and non-living components that are interdependent and function as a community." 1982 LOS Convention, 
supra, does not define the term. 

105. 1982 LOS Convention, supra n. 39, Art. 195; see also 4 Nordquist, supra n. 20, paras. 195.2, 195.6. 

106. 1982 LOS Convention, supra n. 39, Art. 196. 

107. 4 Nordquist, supra n. 20, paras. 196.1, 196.7(a). 

108. 1982 LOS Convention, supra n. 39, Art. 197, partly based on Stockholm Declaration, supra n. 52, Recomm. 
92, 1 1 id. at 1456-57, and Convention on Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 

Walker 215 

Dec. 29, 1972, 26 U.S.T. 2403, 1046 U.N.T.S. 120 [hereinafter London Dumping Convention]. 4 Nordquist, supra n. 
20, para. 197.3. 

109. 1982 LOS Convention, supra n. 39, Arts. 200-01; see also 4 Nordquist, supra n. 20, paras. 200.1-200.6, 
201.1-201.7; Restatement (Third), supra n. 30, sec. 603(2). Freedom of the high seas includes the right to conduct 
scientific research, subject to coastal State continental shelf rights. 1982 LOS Convention, supra, Art. 87(1). It is 
generally accepted as a customary right. 1 Brown, supra n. 33, at 429. 

110. 1982 LOS Convention, supra n. 39, Arts. 202-06, based in part on Stockholm Declaration, supra n. 52, 
Principles 16, 21, 1 1 id. at 1419-20; National Environmental Policy Act, 42 U.S.C. sec. 4332 (1994); 4 Nordquist, supra 
n. 20, paras. 201.1-202.6(b), 203.1 -203.5(c), 204.1-204.8(d), 205.1-205.6(c), 206.1-206.6(c). 

111. 1982 LOS Convention, supra n. 39, Art. 198. "IMO is as important in its particular fields of interest — maritime 
safety and protection of the marine environment — as is the UNEP at global level." Birnie & Boyle, supra n. 28, at 53. 

11 2. 4 Nordquist, supra n. 20, para. 198.1; see also Restatement (Third), supra n. 30, sec. 601, cmt. e& r.n.4, citing 
inter alia Memorandum of Intent Concerning Transboundary Air Pollution, Aug. 5, 1980, Can. -U.S., 32 U.S.T. 2521; 
1274 U.N.T.S. 235. 

113. This "to some extent anticipates" 1982 LOS Convention, supra n. 39, Art. 221. 4 Nordquist, supra n. 20, para. 

114. 1982 LOS Convention, supra n. 39, Art. 199; see also 4 Nordquist, supra n. 20, noting that High Seas 
Convention, supra n. 31, Art. 25(2), requires countries to cooperate with competent international organizations in 
measures to prevent radioactive materials contamination of the seas or airspace. The 1982 Convention, supra, covers 
a wider spectrum of required cooperation. 

115. This "to some extent anticipates" 1982 LOS Convention, supra n. 39, Art. 221. 4 Nordquist, supra n. 23, para. 

116. 1982 LOS Convention, supra n. 39, Arts. 207(l)-207(2), 208(1-208(3), 209(2), 211(2); see also 4 Nordquist, 
supra n. 20, paras. 207.7(a)-207.7(b), 208. 10(a)-208. 10(d), 209.10(a), 211.15(f); Restatement (Third), supra n. 30, sec. 
603(l)(a). As id. r.n. 7 shows, the United States, like many nations, has marine pollution legislation which may require 
amendment to align it with Convention standards. Such laws, if enacted worldwide, can evidence customary norms. 
Brownlie, supra n. 30, at 5. 

117. 4 Nordquist, supra n. 20, para. 208.10(a). 

118. 1982 LOS Convention, supra n. 39, Arts. 210(1)-210(3), 210(6); see also 4 Nordquist, supra n. 20, para. 
210.11(b); Restatement (Third), supra n. 30, § 603. National laws, such as those in id., r.n. 7, can evidence custom. 
Brownlie, supra n. 30, at 5. 

119. 1982 LOS Convention, supra n. 39, Art. 210(5); see also 4 Nordquist, supra n. 20, paras. 210.1 l(c>210.11(g), 
noting that London Dumping Convention, supra n. 108, Art. 4, requires prior approval. 

120. 4 Nordquist, supra n. 20, para. 210.11(g) & n.14, citing inter alia International Law Commission, Report on 
the Work of Its Thirty-First Session: Draft Articles on State Responsibility, Art. 32, U.N. Doc. A/34/194 (1979), reprinted in 
18 I.L.M. 1557, 1568, 1576 (1979), stating that these are not defenses if the offending country contributes to the 
occurrence of the situation of material responsibility. See also Commentary to Draft Articles on State Responsibility 
in International Law Commission, Report on the Work of Its Thirty-First Session, U.N. Doc. A/34/10 & Com 1 (1979), 
reprinted in 2(2) Y.B. Int'l L. Comm'n 122-36 (1979). The practical experience is that jettisoned fuel dissipates quickly 
in the atmosphere and does not present an emergency. 4 Nordquist, supra, para. 2 1 0. 1 1 (g) & n. 1 4. Restatement (Third), 
supra n. 30, sec. 603, cmt. g & r.n. 8 discuss aircraft noxious and noise emissions. 

121. 1982 LOS Convention, supra n. 39, Arts. 18(2), 19{\Xc); see also Territorial Sea Convention, supra n. 31, Art. 
14(3); Colombos, supra n. 20, § 181 (customary law); 2 O'Connell, supra n. 19, at 853-858 (same). As NWP 9A, supra 
n. 30, paras. 1.4.1, 2.3.1, 3.2, 3.2.2, 7.3.2, 7.3.7, demonstrate, this customary law of the sea norm follows different 
principles during armed conflict. See also Hague Convention (VI) Relating to Status of Enemy Merchant Ships at 
Outbreak of Hostilities, Oct. 18, 1907, Art. 2, 205 Consol. T.S. 305, 312 [hereinafter Hague VI]; Hague Convention 
(XIII) Concerning Rights & Duties of Neutral Powers in Naval War, Oct. 18, 1907, Art. 21, 36 Stat. 2415, 2431 
[hereinafter Hague XIII]; Convention on Maritime Neutrality, Feb. 28, 1928, Art. 17, 47, id. 1989, 1993, 135 L.N.T.S. 
187, 204; Nyon Arrangement, Sept. 14, 1937, Art. 5, 181 L.N.T.S. 135, 139; Stockholm Declaration Regarding Similar 
Rules of Neutrality, May 27, 1938, Arts. 4, 7, 188 id. 294, 299, 301, 305, 307, 31 1, 313, 319, 32 1, 325, 327; Oxford Manual, 
supra n. 30, Arts. 31,34, 37, reprinted in Law of Naval Warfare, supra n. 30, at 290, 292-93; San Remo Manual, supra 
n. 30, paras. 21 (Hague XIII rule); 136, Commentary 136.2 (Hague VI considered to be in disuetude); Commentary 
168.6 (Hague XIII rule); de Guttry, Commentary, in Law of Naval Warfare, supra at 102, 109 (Hague VI of limited 
usefulness); Schindler, Commentary, in id., supra, at 211, 221 (Hague XIII restates custom, with minor exceptions). 
This is yet another example of the "other rules" principle in operation. See supra nn. 64-88 and accompanying text. 

122. 1982 LOS Convention, supra n. 39, Arts. 207(3) (land-based pollution), 207(4) (seabed activities subject to 
national jurisdiction); see also U.N. Charter, Art. 52. 

123. 1982 LOS Convention, supra n. 39, Arts. 207(4), 208(5), 209(1), 210(4), 211(1), 212(3). 

216 Protection of the Environment During Armed Conflict 

124. A/., Arts. 21 1(3>21 1(4); see also Restatement (Third), supra n. 30, sec. 604(3). The Convention's negotiating 
history demonstrates that under it coastal States cannot require warships to give notice or get prior consent before 
entering the territorial sea on innocent passage. See generally Roach & Smith, Excessive Maritime Claims (Nav. War 
C. Int'l L. Stud., v. 66, 1994) at 154-60; 1 Brown, supra n. 33, at 64-72. For principles governing innocent passage, 
which apply equally to merchantmen and warships, except that submarines must navigate on the surface and show 
their flag, see generally 1982 LOS Convention, supra, Arts. 17-26, 45, 52(2). The Ports and Waterways Safety Act, 33 
U.S.C. sees. 1221-36 (1994), is a typical national statute regulating enforcement of safety and environmental measures 
in the territorial sea. A worldwide pattern of these kinds of laws can evidence customary standards. Brownlie, supra 
n. 30, at 5. 

125. These rules cannot apply to foreign ship design, construction, manning or equipment unless they effectuate 
generally accepted international rules or standards. 1982 LOS Convention, supra n. 39, Arts. 19(2Xh), 2\;see also 2 
Nordquist, supra n. 51, paras. 19.1-19.11, 21.1-21.12, noting some States' continued opposition to warships' right of 
innocent passage and linkage between 1982 LOS Convention, Arts. 21(1X0. and 192, supra. The An. 19(2) list is 
exclusive, although id., Art. 19(2XD> ("any other activity not having a direct bearing on practice") could be read 
expansively. See 2 Nordquist, supra, para. 19.11, citing Uniform Interpretation of Rules of International Law 
Governing Innocent Passage, Sept. 23, 1989, USSR-U.S., Art. 3, reprinted in 28 I.L.M. 1444, 1446 (1989) [hereinafter 
Uniform Interpretation], noting Russia has accepted this statement; NWP 9A, supra n. 30, para. Aside from 
a special rule for fishing craft, Territorial Sea Convention, supra n. 31, Arts. 4-5, uses a general reasonableness rule to 
define innocent passage. See also Restatement (Third), supra n. 30, sec. 513 & cmts. a-e, h-i, & r.n.1-2, 6. For analysis 
of "other rules of international law" clauses, see supra nn. 64-88 and accompanying text. 

126. These ships must carry special documentation too. 1982 LOS Convention, supra n. 39, Arts. 22(2), 23; see also 
4 Nordquist, supra n. 20, paras. 22.1-22.9, 23.1-23.9, noting link with 1982 LOS Convention, supra, Arts. 24(l)(b), 
25(3), 227; Restatement (Third), supra n. 30, sec. 513(2Xb) & cmt. d. Uniform Interpretation, supra n. 125, Arts. 5, 20, 
clarifies the Russian text of the 1982 LOS Convention, supra, Art. 22, saying that coastal States may designate sea 
lanes and traffic separation schemes "where necessary to protect the safety of navigation." 2 Nordquist, supra n. 51, 
para. 22.9. 

127. 1982 LOS Convention, supra n. 39, Art. 24; see also 2 Nordquist, supra n. 51, paras. 24.1-24.8, noting parallel 
language ("form or fact") in 1982 LOS Convention, supra n. 39, Arts. 25(3), 42(2), 52(2), 227; Restatement (Third), 
supra n. 30, sec. 513(2) & cmt. c; Clingan, Freedom of Navigation in a Post-UNCLOS III Environment, in Symposium, 
«<pran.96at 107,111. 

128. 1982 LOS Convention, supra n. 39, Art. 25; see also 2 Nordquist, supra n. 51, paras. 25.1-25.9, noting that 
Uniform Interpretation, supra n. 125, applies to Art. 25, taken directly from Territorial Sea Convention, supra n. 31, 
Arts. 1 6( 1 )- 1 6(3); Restatement (Third), supra n. 30, sec. 5 1 3(2)(a) & cmt. c, which say there should be no discrimination 
among different countries' vessels during temporary suspension; it should apply to ships of all flags. 

129. 2 Nordquist, supra n. 51, para. 25.1, citing Territorial Sea Convention, supra n. 31, Art. 16(3). 

130. See generally 2 Nordquist, supra n. 51, paras. 25.1-25.9; Restatement (Third), supra n. 30, sees. 513, cmt. c; 
601-04 state nothing to the contrary. 

131. U.N. Charter, Art. 51; see also supra n. 72 and accompanying text. 

132. 1982 LOS Convention, supra n. 39, Arts. 27-18; see also Restatement (Third), supra n. 30, sees. 457, r.n.7; 
461, cmt. e; 513(2Xb) & cmt. c, e, h, & r.n. 2. 

133. 1982 LOS Convention, supra n. 39, Art. 2(3); see also Territorial Sea Convention, supra n. 31, Art. 1(2); supra 
nn. 64-88 and accompanying text. 

134. In the case of archipelagic sea lanes, passage is subject to the right of an archipelagic State, as defined in the 
Convention, to designate sea lanes and air routes through its archipelagic waters and adjacent territorial sea. 1982 
LOS Convention, supra n. 39, Arts. 45-46, 52-53; compare id., Art. 25(3). Head Harbor Passage through Canadian waters 
to Passamaquoddy Bay, off Maine, is an example of this kind of strait. Roach & Smith, supra n. 124, at 181; Alexander, 
International Straits, in Law of Naval Operations, supra n. 30, at 91, 99. Innocent passage rules also apply to straits 
between an island of a State and that State's mainland, if a route exists seaward of the island through the high seas or 
an EEZ that is of similar convenience with navigational and hydrographic characteristics. 1982 LOS Convention, 
supra, Art. 38(1). The Straits of Messina, off Italy, is an example. Roach & SMiTH,iwpra at 181; Alexander, /nfOTujfiona/ 
Straits, in Law of Naval Operations, surpa n. 30, at 100-01. Few countries qualify as archipelagic States under the 
Convention. See generally id. at 13 1-32, citing 1982 LOS Convention, swpra, Arts. 46-47,49, 52-53; see also 2 Nordquist, 
supra n. 5 1, paras. 46.1 -46.6(f), 47.147.9(m), 49.149.9(d), 52.1-52.7, 53.1-53.9(n). Similar construction should be given 
1982 LOS Convention, supra, Art. 52(2), and its authority to temporarily suspend innocent passage through 
archipelagic waters. As for territorial sea innocent passage, which has broader application potential, see also supra n. 
125-31 and accompanying text. 

135. 1982 LOS Convention, supra n. 39, Art. 53; see also 2 Nordquist, supra n. 51, paras. 53.1-53.9(n); Restatement 
(Third), supra n. 30, sec. 513(4) & cmt. k, r.n.4. 

Walker 217 

136. 1982 LOS Convention, supra n. 39, Arts. 38(1), 45(l)(b), 52-54; id., Art. 54 incorporates by reference id., Arts. 
39-40, 42, 44; see also 2 Nordquist, supra n. 51, paras. 54. l-54.7(b) and supra nn. 125-31 and accompanying text. Most 
commentators agree that Convention rules on nonsuspendable straits passage reflect custom. See generally, Clingan, 
supra n. 127, at 117; Harlow, Comment, in Symposium, supra n. 96, at 125, 128; Oxman, Regime of Warships, supra n. 
67,at 851-61; Schachte, International Straits and Navigational Freedoms, 240cean Devel. & Int'l L. 179, 181-84(1993). 

137. 1982 LOS Convention, supra n. 39, Art. 233, incorporating by reference id., Arts. 42(l)(a)-(b), 236, would 
appear to apply, strictly speaking, to straits transit passage regimes because of references to Art. 42; the straits innocent 
passage regime, and provisions governing territorial sea innocent passage have no similar intervention provisions, 
although such might be inferred from coastal State authority to enact environmental laws that might include authority 
to intervene. Warships, naval auxiliaries, etc., have sovereign immunity as in the case of transit passage. See generally 
id., Arts. 17-32, 45, 236; S. Doc. 103-39, reprinted in 6 U.S. Dep't St. Dispatch Supp. No. 1, at 1 1-15, 23, saying that by 
extension these principles apply to archipelagic sea lanes passage and straits passage. The U.S. Navy has taken the 
position that a straits passage regime also applies to approaches to straits. The Navy position that warships, operating 
in normal mode (i.e. submarines traversing these straits submerged), may employ formation steaming and conduct 
air operations as incidental to normal navigation practices, so long as there is no threat to the coastal State(s), is 
consistent with the transit passage regime. Alexander, supra n. 134 in Law of Naval Operations, supra n. 30, at 92; 
Clove, Submarine Navigation in International Straits: A Legal Perspective, 39 Nav. L. Rev. 103, 105 (1990); Schachte, 
International Straits, supra n. 136, at 184-86, but see Lowe, Commander's Handbook, supra n. 67, in Law of Naval 
Operations, supra on naval operations in transit straits. If this is accepted as practice, the environmental protection 
regime appurtenant to straits passage applies to this area too. The issue of straits passage for belligerents illustrates 
the interface of the LOS and the LOAC preserved by the "other rules" clauses of the law of the sea. See generally NWP 
9A.,supra n. 30, paras. 2.3.3-,; San Remo Manual, supra n. 30, paras. 23-33; Mayama, The Influence of the 
Straits Transit Regime on the Law of Neutrality at Sea, 26 Ocean Devel. & Int'l L. 1 (1995); supra nn. 64-88 and 
accompanying text. 

138. 1982 LOS Convention, supra n. 39, Art. 31; compare Territorial Sea Convention, supra n. 31, Art. 24, which 
inter alia provides for a 12-mile zone. The contiguous zone's outer limit means that States asserting a territorial sea 
less than the full extent provided by the 1982 Convention, 12 miles, or under customary law for States party to the 
1958 Conventions, may declare a contiguous zone up to the limits permitted by whichever convention is in force for 
them. See also Restatement (Third), supra n. 30, sec. 51 1(b) & cmt. k. 

139. See generally 2 Nordquist, supra n. 51, paras. 33.1-33.8(0- 

140. 1982 LOS Convention, supra n. 39, Arts. 303(l)-303(2) provides: 

1. States have the duty to protect objects of an archeological and historical nature found at sea and shall 
co-operate for this purpose. 

2. . . . [T]o control traffic in such objects, the coastal State may, in applying Article 33, presume that their 
removal in the contiguous zone . . . without its approval would result in an infringement within its territory 
or territorial sea of the laws and regulations referred to in that article. 

141. See generally 5 Nordquist, supra n. 47, paras. 303.1-303.10. 

142. Art. 303 also does not affect identifiable owners' rights, salvage law or other admiralty rules, or cultural 
exchange laws and practices. 1982 LOS Convention, supra n. 39, Arts. 303(3)-03(4). Under traditional admiralty law, 
shipwrecks and objects found at sea are a finder's property, unless its national law or the law of the salvor provides 
otherwise. See generally Restatement (Third), supra n. 30, sec. 521, r.n.6; Schoenbaum, supra n. 22, ch. 14; S. Doc. 
103-39, supra n. 40, 6 U.S. Dep't St. Dispatch, Supp. No. 1, at 51, citing U.S. legislation that may alter these rules. 
Title to warships or government aircraft is never lost until a flag State officially abandons or relinquishes it. If an 
aircraft or ship is captured, title vests then in the captor State. NWP 9A, supra n. 30, paras., 8.2.1; see 
also Agreement Concerning Wreck of C.S.S. Alabama, Oct. 3, 1989, Fr.-U.S., T.I.A.S. No. 11687. 

143. See supra nn. 64-88 and accompanying text. 

144. 5 Nordquist, supra n. 47, para. 303.10. 

145. 1982 LOS Convention, supra n. 39, Art. 149. 

146. Id. supra n. 39, Arts. 55, 56(l)(a), 56(l)(b)(iii)-56(c), 57-58, defining the EEZ as extending outward 200 
nautical miles from territorial sea baselines and providing that coastal States have "sovereign rights for . . . conserving 
and managing their natural resources, . . . living or non-living, of the waters subjacent to the sea-bed and of the sea-bed 
and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, 
[e.g.] . . . production of energy from the water, currents and winds; [and] . . . jurisdiction as provided for in . . . this 
Convention [for] . . . protection and preservation of the marine environment; [and] other rights and duties provided 
for in this Convention." See also id., Art. 60, giving the coastal State exclusive rights and jurisdiction over artificial 
islands and other EEZ installations. Id., Arts. 61-72, expand upon standards for conservation and use of living 
resources, stocks occurring within two or more countries' EEZs, various kinds of sea life, and rights of landlocked 
and geographically disadvantaged States. Id., Art. 73, declares standards for enforcing coastal State EEZ laws. See also 
2 Nordquist, supra n. 20, paras. 55.1-55.1 1(d), 56.1-56.11(e), 57.1-57.8(b), 58.1-58.10(0, 60.1-60.15(m), 61. 1-61. 12(k), 

218 Protection of the Environment During Armed Conflict 

62.1-62.16Q), 63.1-63.12(0, 64.1-64.9(0, 65.1-65.16(i), 66.1-66.9(g), 67.1-67.8(e), 68.1-68.5(b), 69. 1-69. 17(h), 
70.1-70.1 l(d),71.1-71.9(c), 71. 1-71. 10(b), 73.1-73.10(h);S. Doc. 103-39,6 U.S. Dep't St. Dispatch Supp. No. 1, at 25-27. 
As of 1992, 86 States had EEZs; 20 more claimed fishing zones. The EEZ "is now widely considered to be a part of 
general international law." 2 Nordquist, supra, para. V.33; Restatement (Third), supra n. 30, sec. 514, cmt. a. While 
id. sec. 5 1 4( 1 ) generally follows Convention criteria as to EEZ sovereignty and jurisdiction, Source Note says "authority" 
is used instead of "jurisdiction" because of the Restatement's different characterization of jurisdiction in other 
contexts; 1982 LOS Convention, supra. Arts. 55, 58, specifically referring to id., Arts. 87-115, which declare inter alia 
high seas freedoms of navigation which apply to the EEZ. States therefore cannot exclude warships on environmental 
grounds from their EEZ. 

147. 1982 LOS Convention, supra n. 39, Art. 211(5). A special qualification to this general rule is id., Art. 234, 
providing that coastal States may adopt and enforce nondiscriminatory laws for preventing, reducing and controlling 
pollution from ships in ice-covered areas to the limits of their EEZs where particularly severe climatic conditions and 
ice create obstructions or exceptional navigational hazards, "and pollution of the marine environment could cause 
major harm to or irreversible disturbance of the ecological balance." Such laws must have "due regard to navigation 

and the protection and preservation of the marine environment " Territorial, and hence territorial sea, claims are 

frozen as to Antarctica by the Antarctic Treaty, supra n. 68, Art. 4. For now, and unless there is a new Ice Age, Art. 
234 only applies to Arctic Sea rim States, e.g., the United States. S. Doc. 102-39, 6 U.S. Dep't St. Dispatch Supp. No. 
1, at 24, noting that key States concerned, i.e. Canada, the USSR and the United States, negotiated Art. 234 to provide 
the basis for implementing provisions for commercial and private vessels in the 1970 Canadian Arctic Waters Pollution 
Prevention Act consistent with Art. 234 and other relevant Convention provisions while protecting "fundamental 
U.S. security interests" in exercising navigational rights and freedoms throughout the Arctic. See also 2 O'Connell, 
supra n. 19, at 1022-25. 

148. See supra nn. 96, 100, 119 and accompanying text for EEZ analysis. See also 1982 LOS Convention, supra n. 
39, Arts. 76-78, 80, declaring that the shelf can extend outward the same distance, 200 nautical miles, as the EEZ, 
along the ocean bottom, or to the edge of the continental margin, whichever is greater, but not over 350 miles; 2 
Nordquist, supra n. 51, paras. 76.1-76.18(m), 77.1-77.7(d), 78. 1-78. 8(d), 80.1-80.9, noting adaptation of Continental 
Shelf Convention, supra n. 31, Arts. 2-5; Restatement (Third), supra n. 30, sec. 515. 

149. 1982 LOS Convention, supra n. 39, Arts. 55, 56(lXb)(iii), 56(2), 58(3), 60(3), 60(7), 78-80, also employing a 
"must not infringe - unjustifiable interference" formula for shelf and high seas rights interfaces and a "reasonable 
exploration" - "may not impede" rule for interface of shelf and submarine cable and pipeline rights. See also 2 
Nordquist, supra n. 51, paras. 56.1 l(e)-56.1 1(f), 58.10-58.10(0, 60.15(0, 60.15(j), 66.9(d), 78.8(c), 79.8(e), 80.9; 
Restatement (Third), supra n. 30, sees. 514, cmt. e; 515(2). "Due regard" or similar phrases also appear in other 
provisions of the 1982 LOS Convention, supra, Art. 87(2), (due regard for others' high seas rights and freedoms, and 
for Area activities), and in Continental Shelf Convention, supra n. 31, Arts. 4-5, ("reasonable measures . . . , may not 
impede"; no "unjustifiable interference with navigation, fishing," etc.); High Seas Convention, supra n. 31, Arts. 2, 
26(2) ("reasonable regard" for others' high seas freedoms); Territorial Sea Convention, supra n. 3 1 , Art. 1 9(4) (balancing 
navigation interests with right of arrest for crimes committed in the territorial sea). 

150. 1982 LOS Convention, supra n. 39, Arts. 58(l)-58(2), 78, referring to id., Arts. 86-1 15; see also supra nn. 64-88 
and accompanying text for "other rules" analysis. 
151. 4 Nordquist, supra n. 20, para. 211.15(b). 

152. 1982 LOS Convention, supra n. 39, Arts. 213-14, 216, 222; see also 4 Nordquist, supra n. 20, paras. 
2 1 3. 1 -2 1 3.7(f), 2 14. 1 -2 14.7(c), 2 16. 1-2 16.7(d), 222.1-222.8. 

153. Restatement (Third), supra n. 30, sec. 603; see also supra n. 97 and accompanying text. 

154. 1982 LOS Convention, supra n. 39, Arts. 217-20, 223-24, 226-31, expanding on rules in the navigational 
articles, id., Arts. 21(1X0, 28(2), 56(l)(bXui), 56(3), 60(1), 80; see also 4 Nordquist, supra n. 20, paras. 217.1-217.8(j), 
218.1-218(9Xh), 2 19. 1-2 19.8(d), 220.1-220.1 l(n), 223.1-223.9(c), 224.1 -224.7(e), 226.1-226.11(e), 227.1-227.7, 
228. 1 -228. 1 1(h), 229. 1-229.5, 230. 1 -230.9(c), 231.1-231 .9(c); Restatement (Third),supra n. 30, sees. 457, r.n.7; 461, cmt. 
c; 512. 

155. 1982LOSConvention,$upran.39,Art. 225; see also 4 Nordquist, supra n. 20, paras. 225. 1-225.9; Restatement 
(Third), supra n. 30, sec. 513, cmt. e. 

156. 1982 LOS Convention, supra n. 39, Arts. 232, 235; see also 4 Nordquist, supra n. 20, paras. 232.1-232.6(c), 
235. 1-235. 10(g); Restatement (Third), supra n. 30, sec. 604, r.n.3. Article 235 was derived from the Stockholm 
Declaration, supra n. 52, Principle 56; 4 Nordquist, supra, para. 235.1. 

157. 1982 LOS Convention, supra n. 39, Art. 221; Charney, supra n. 47, at 892 n. 79; see also 4 Nordquist, supra n. 
20, paras. 22 1.1-22 1.9(h); Restatement (Third), supra n. 30, sec. 603, r.n. 3, noting similar provisions in 1969 
Intervention Convention, supra n. 22, Art. l,and 1973 Intervention Protocol, supra n. 22, to which numerous countries 
are party. TIF, supra n. 32, at 385; Declaration of Principles Governing the Seabed and the Ocean Floor, and the 
Subsoil Thereof, Beyond the Limits of National Jurisdiction, U.N.G.A. Res. 2749 (1970), para. 1 3(b), reprinted in 10 
I.L.M. 220,223(1971). 

Walker 219 

158. Cf. Birnie & Boyle, supra n. 28, at 286; Brownlie, supra n. 30, at 5; Restatement (Third), supra n. 30, sec. 
102(3), cmts. f, i, r.n.5. 

159. See supra nn. 4-6 and accompanying text. 

160. See supra nn. 64-88 and accompanying text. 

161. See supra nn. 10-11, 13-16 and accompanying text. 

162. Compare 1982 LOS Convention, supra n. 39, An. 236, with id., Arts. 42(5), 96, 110(1); see also High Seas 
Convention, supra n. 31, Arts. 8(1); 3 Nordquist, supra n. 67, paras. 95. 1 -96.6(c); 4 id, supra n. 20, paras. 236.1-236.6(f). 
Warship and naval auxiliary immunity is an accepted rule of international law. 3 id., para. 95.1; 4 id., para. 236.1. 

163. S. Doc. 103-39, supra n. 40, 6 U.S. Dep't St. Dispatch Supp. No. 1, at 24. 

164. E.g., Convention on Protection of the Environment, Feb. 19, 1974, Arts. 1, 13, 1092 U.N.T.S. 280, 296, 298, 
among Denmark, Finland, Norway and Sweden. 

165. Kuwait Regional Convention, supra n. 53, Art. 14; Red Sea Convention, supra n. 54, Art. 14. 

166. See supra nn. 46-49 and accompanying text. Other regional treaties say they are subject to present and future 
LOS conventions, e.g., Convention for Protection of the Mediterranean Sea Against Pollution, Feb. 16, 1976, Art. 
3(1), 1 102 U.N.T.S. 27, 46, and its protocols. 

167. See supra nn. 31, 40, 162 and accompanying text. 

168. Compare 1982 LOS Convention, supra n. 39, Art. 94(4Xc), with High Seas Convention, supra n. 31, Art. 10. 

169. Compare 1982 LOS Convention, supra n. 39, Art. 94(7), with High Seas Convention, supra n. 31, Art. 11(1); 
see also 3 Nordquist, supra n. 67, para. 94.8(k). 

170. 1982 LOS Convention, supra n. 39, Arts. 122-23; 3 Nordquist, supra n. 67, at 344; see also id, para. 123.12(e), 
listing inter alia Kuwait Regional Convention and Red Sea Regional Convention, supra nn. 53-54 as among regional 
coordination agreements for semi-enclosed areas. 

171. Compare 1982 LOS Convention, supra n. 39, Art. 87(1), with High Seas Convention, supra n. 31, Art. 2; see also 
supra n. 67 and accompanying text. 

172. 1982 LOS Convention, supra n. 39, Art. 240(d). Indeed, id., Art. 87(1 )(f), declares that the right to conduct 
scientific research is subject to rules in Parts VI and XIII of the Convention. Part VI declares rules for the continental 
shelf, and Part XIII states general principles for protecting marine environment. See supra nn. 9, 92-123, 148-50 and 
accompanying text. Subject to other Convention provisions, States conducting research must give other countries 
reasonable opportunity to obtain information necessary to prevent and control damage to the health and safety of 
persons and to the marine environment. 1982 LOS Convention, supra, Art. 242. A research installation or equipment 
is subject to the same rules prescribed for conducting research. Id., Art. 258. See also 2 O'Connell, supra n. 19, ch.26. 
Vessels collecting scientific data are protected from capture under the law of naval warfare during armed conflict; if 
they are engaged in data collection for likely military application, they are not so protected. San Remo Manual, supra 
n. 30, paras. 47(f), 136(e). 

173. Compare 1982 LOS Convention, supra n. 39, Arts. 87(l)(e), 1 16, with High Seas Convention, supra n. 31, Art. 
2; Restatement (Third), supra n. 30, sec. 521(2)(c). 

174. S. Doc. 103-39, supra n. 40, 6 U.S. Dep't St. Dispatch, Supp. No. 1, at 27. 

175. 1982 LOS Convention, supra n. 39, Art. 116, incorporating id., Arts. 63(2), 64-67, 118-20; compare Fishery 
Convention, supra n. 31, Arts. 1-8, 13; see also Restatement (Third), supra n. 30, sec. 521, cmt. e; S. Doc. 103-39, supra 
n. 40, 6 U.S. Dep't St. Dispatch, Supp. No. 1, at 27-28, listing treaties regulating or prohibiting high seas fishing. 1982 
LOS Convention, supra, Arts. 56, 61-73, regulate EEZ fishing. See also 3 Nordquist supra n. 67, paras. 1 16.1-1 16.9(g); 
Charney, supra n. 47, at 896-901. 

176. 1982 LOS Convention, supra n. 39, Art. 87; compare High Seas Convention, supra n. 31, Art. 2, declaring that 
a State exercising a high seas freedom through its vessels or aircraft must have "reasonable regard" for others' 
concurrrent exercises of those freedoms. 

177. With regard to fishing, this statement is only true with respect to the high seas where no littoral State interests, 
e.g. those in an EEZ, apply. In the latter case, high seas freedoms of navigation and overflight and other non-resource 
activities are preserved by the 1982 LOS Convention, supra n. 39. 

178. 1982 LOS Convention, supra n. 39, Art. 87(2). 

179. Id., Art. 1(1X1); see 2 Nordquist, supra n. 51, paras. 1.1-1.19, 1.26-1.31; Restatement (Third), supra n. 30, sec. 
523, cmt. b, declaring that id., sec. 523(1 )(a) recites a customary principle, that "[N]o State may claim or exercise 
sovereignty or sovereign or exclusive rights over any part of the sea-bed and subsoil beyond the limits of national 
jurisdiction, or over its mineral resources, and no State or person may appropriate any part of that area ..." Id., sec. 
523(l)(b) recites the U.S. view of the law: 

. . . unless prohibited by international agreement, a state may engage, or authorize any[one] to engage, 
in . . . exploration for and exploitation of that area, provided that such activities are conducted (i) without 
claiming or exercising sovereignty or sovereign or exclusive rights in any part of that area, and (ii) with 
reasonable regard for the right of other states or persons to engage in similar activities and to exercise the 
freedoms of the high seas; . . . minerals [so] extracted . . . become the property of the mining State or person. 

220 Protection of the Environment During Armed Conflict 

Id., cmt. b. 

180. 1982 LOS Convention, supra n. 39, Arts. 136. 140(1). The "common heritage" concept began with the 
Antarctic Treaty, supra n. 68, and continued with conventions related to outer space. Restatement (Third), supra n. 
30, sec. 523, cmt. b & r.n.2 adopted the then U.S. position that deep seabed mining was a high seas freedom, rejecting 
the "common heritage" view in the Convention. However, if the Convention is accepted generally, "without dissent 
by . . . important . . . States, the sea-bed mining regime . . . may become effective also as custom . . . ." Id., sec. 523, 
cmt. e. 

181. 1982 LOS Convention, supra n. 39, Art. 135; see also Restatement (Third), supra n. 30, sees. 521, cmt. i; 523. 
1 82. 1982 LOS Convention, supra n. 39, Art. 1 37(2). Id., Arts. 1 56-91 , are constitutive provisions for the Authority; 

they would be modified by the Boat Agreement, supra n. 40, to amend Part XI of the Convention. See S. Doc. 103-39, 
supra n. 40, 6 U.S. Dep't St. Dispatch Supp. No. 1, at 34-43. 

183. 1982 LOS Convention, supra n. 39, Arts. 14546. 

184. Id., Art. 149; see also supra nn. 65-78 and accompanying text for the relationship between this provision and 
the contiguous zone and the "other rules of international law" clauses found elsewhere in the Convention. 

185. Compare 1982 LOS Convention, supra n. 39, Arts. 147(1), 147(2Xb), 147(c), with id., Arts. 60, 80; see also 
Restatement (Third), supra n. 30, sec. 523(1 )(bXii) & cmt. d, stating a more solicitous view of high seas freedoms. 

186. 1982 LOS Convention, supra n. 39, Art. 138, referring to id., Arts. 133-91. 

187. Compare id., Art. 141, 21, with id., Arts. 88, 240(a). 

188. See supra nn. 64-88 and accompanying text. 

189. Mahmoudi, The Law of Deep Sea-Bed Mining (1987) at 173-75. 

190. The treaties disclaim any intention to affect parties' rights or claims as to their maritime jurisdiction 
"established in conformity with international law." Kuwait Regional Convention, supra n. 53, Arts. 2, 15; Red Sea 
Convention, supra n. 54, Arts. 2, 15. The protocols allow application to ports, harbors, estuaries, bays and lagoons if 
there is a "marine emergency," and if the particular country so decides. "Marine emergency" is defined broadly. 
Kuwait Protocol, supra n. 53, Arts. 1(2), 4. Red Sea Protocol, supra n. 54, Arts. 1(2), 4. These treaties implement 
environmental policies of 1982 LOS Convention, supra n. 39, Arts. 122-23; see also supra n. 170 and accompanying 

191. Compare Kuwait Regional Convention, supra n. 53, Art. 1(a), with Red Sea Convention, supra n. 54, Art. 1(2). 

192. Kuwait Regional Convention, supra n. 53, Arts. 3(a), 4-7; Red Sea Convention, supra n. 54, Arts. 3(1), 4-8, 
which adds a pledge to prevent, abate and combat pollution "resulting from other human activities." 

193. See generally Kuwait Protocol, supra n. 53; Red Sea Protocol, supra n. 54. 

194. Compare Kuwait Protocol, supra n. 53, Art. \{2),with Red Sea Protocol, supra n. 54, Art. 1(2). 

195. See supra nn. 157-59 and accompanying text. 

196. The Marine Emergency Mutual Aid Centre, an administrative agency, also must be notified. Kuwait Protocol, 
supra n. 53, Arts. 3, 10; Red Sea Protocol, supra n. 54, Arts. 3, 7(2). 

197. Kuwait Protocol, supra n. 53, Art. 1(4); Red Sea Protocol, supra n. 54, Art. 1(4). 

198. See supra nn. 157-59 and accompanying text. 

199. See also supra n. 72 and accompanying text. 

200. See supra nn. 52-54 and accompanying text. 

201. Neither Iran nor Iraq was party to the 1958 LOS Conventions, supra n. 31. The customary principle of "other 
rules of international law," restated in these agreements and the 1982 LOS Convention,sM/>ra n. 39, did apply, however. 
See supra nn. 64-88 and accompanying text. 

202. See supra nn. 80-83 and accompanying text. 

203. See supra nn. 191-94 and accompanying text. 

204. See supra n. 60 and accompanying text. 

205. Okorodudu-Fubara, supra n. 2, at 197; see also supra nn. 58-61 and accompanying text. 

206. See supra nn. 4-6 and accompanying text. 

207. Kuwait Protocol, supra n. 53, art. 1(2). 
208-SVe supra n. 4 and accompanying text. 

209. See supra nn. 8-9, 18 and accompanying text. 

210. The U.N. Security Council deplored attacks on merchant shipping. If these Resolutions had been obeyed, 
they would have resulted in no more attacks on these vessels and therefore no more pollution of the Gulf from this 
cause. These resolutions covered a specific point, i.e. freedom of navigation, and therefore should not be construed as 
applying special Charter law to the exclusion of conventional norms, to these situations. See supra n. 8 and 
accompanying text. 

211. See supra nn. 80-83 and accompanying text. 

212. See supra nn. 8, 46 and accompanying text. 

213. See supra n. 62 and accompanying text. 

214. See supra nn. 10-11, 13-16 and accompanying text; see also Okorodudu-Fubara, supra n. 2, at 196. 

Walker 221 

215. See supra n. 55 and accompanying text. 

216. See supra n. 54 and accompanying text. 

217. See supra nn. 103, 142, 149, 176, 185 and accompanying text. 

218. See supra nn. 132, 137, 150, 162-167 and accompanying text. 

219. See supra nn. 64-88, 121, 133, 142-43, 160, 186-89, 201 and accompanying text. 

220. See supra nn. 68-72, 186-89 and accompanying text. 

221. See supra nn. 157-59, 195-99 and accompanying text. 

222. See supra nn. 4-6 and accompanying text. 

223. See supra nn. 190-216 and accompanying text. 

224. See supra n. 46 and accompanying text. 

225. See supra nn. 190-216 and accompanying text. 

226. See supra nn. 55, 215-16 and accompanying text. 

227. See supra nn. 46-49 and accompanying text. 

228. Compare LOS Convention, supra n. 39, Pan II.c.l with Part II.c.2. 

229. See supra nn. 46-49 and accompanying text. 

230. See supra nn. 60, 62-63, 131 and accompanying text. 

231. See supra nn. 132, 137, 150, 162-67, 218 and accompanying text. 

232. See supra nn. 64-88, 121, 133, 142-42, 160, 186-89, 201, 219-20 and accompanying text. 

233. See supra nn. 103, 142, 149, 176-78, 185, 217, 228 and accompanying text. 

Chapter XIV 

Environmental Issues in International Armed 
Conflict: The Experience of the 1991 

Gulf War 

Professor Adam Roberts* 



his paper's purpose is to survey, and critically examine in the light of events 
of modern war, legal restraints which bear on environmental damage in 
international armed conflict. More specifically, the paper addresses the question 
of whether, and if so how, environmental damage can be prevented or reduced 
during international armed conflicts and military occupations. Sections II to V of 
the paper take a general look (not especially related to the 1990-91 Gulf Conflict) 
at how this and related issues had been addressed before 1990. Sections VI to XI 
are principally about the events of the Gulf Conflict, including the 1991 Coalition 
war to liberate Kuwait, the Iraqi destruction of the oil installations, and the tangled 
aftermath of that war. Section XII discusses issues and conclusions some of which 
are specific to the events of the 1990-91 Gulf Conflict, and some of which are more 

Damage to the environment arising from the 1991 Gulf War raised many 
questions about whether such consequences of war can be effectively prevented or 
limited, and if so how. This was by no means the first major war to have raised 
such questions. However, a peculiar conjunction of circumstances meant that it 
did so in a sharp form. The war happened at a time when there was already great 
international concern about many environmental issues; it occurred in a region 
peculiarly rich in oil, a natural resource already notorious for its manifold effects 
on the environment; its maritime element was largely in an area of sea, the Gulf, 
which is enclosed and thus especially susceptible to pollution; it saw serious 
environmental damage — much of it apparently deliberate; and the war was 
conducted on one side in the name of the United Nations, which has also been 
deeply involved in various environmental issues. In the wake of the war, there was 
renewed concern in the international community with the whole question of 
environmental destruction in war. 

Most, but not all, of the environmental issues were about oil. The oil slicks in 
the Gulf, the setting on fire of the Kuwaiti oil wells, the Coalition air attacks on 

Roberts 223 

oil installations in Iraq — all seemed to involve, or threaten, damage of several 
kinds to the natural environment. Other activities in the war also had 
environmental aspects, including the dumping of quantities of mines and war 
material in the desert, the bombing of nuclear installations, and the damage to the 
water supply in Iraq. 

It is not my purpose to offer a scientific judgement on the damage to the 
environment caused by the 1991 Gulf War. It is particularly hard to assess the 
precise nature and extent of any damage to the natural environments of the earth's 
atmosphere, the waters of the Gulf, and the land in Kuwait and neighboring 
regions. Some predictions and preliminary estimates of such damage were made, 
and are mentioned later in this paper. They reflected disagreement about certain 
matters, including the extent to which the damage could be expected to be 
long-term in character. Further studies will certainly follow. There will then be 
additional questions to be examined: not least, to consider the extent to which the 
environmental effects of the war have in turn led to human suffering and death, 
threats to wildlife, damage to crops, and so on. Such studies will be one necessary 
aspect of any concerted international effort to consider what is to be done about 
the environmental consequences of war. 

What is not in dispute is that the conspicuous damage to the immediate 
environments of Iraq and Kuwait was, at least in the short term, serious. Kuwait 
itself was left by the retreating Iraqis an environmental disaster area on land, sea 
and air. Much of this damage involved a wanton waste of a precious natural 
resource, namely oil; and proved very difficult and expensive to counter. In Iraq, 
the damage affecting such public services as sewerage and water purification 
created a threat to the water supply and other man-made services, and thus to the 
population at large. Beyond these two countries most directly involved in war, the 
environmental threats of oil slicks and smoke clouds moved across frontiers to 
wherever the currents and winds took them. They caused damage to waters and 
on land in neutral States, especially Iran. 

Concern about the environmental consequences of war is not necessarily based 
on any assumption that the natural environment is something which in its existing 
state is wholly benign, or incapable of being improved by the hand of man. 
Impeccably natural earthquakes and eruptions can themselves cause damage, 
including damage to the environment, on a colossal scale. Nor is such concern 
based on any assumption that all damage caused by war to the environment is 
irreparable. Both natural and human agencies may greatly mitigate at least some 
of the effects of environmental damage. 

The events of the war raise the question of what exactly we mean by the 'natural 
environment' — to use the phrase which occurs in Additional Protocol 1 1 977. The 
idea that 'nature' and 'man' are in two separate categories has remained highly 
influential in this century, for example in shaping policies regarding national 

224 Protection of the Environment During Armed Conflict 

parks in the United States and various other countries. However, many aspects of 
the environment in which we live, especially where land and fresh water are 
concerned, are an amalgam of the natural and the artificial: and damage to those 
aspects of our environment may be just as serious as damage to those parts which 
are nearer to being purely 'natural', such as the seas and the atmosphere. In the 
1991 Gulf War, much damage was inflicted by Iraq on the more purely 'natural' 
environments of sea and air, while the environmental damage by the Coalition was 
to the man-shaped environment within Iraq: it would be wrong to exclude the 
latter from this enquiry. 

The environmental consequences of the 1991 Gulf War do not have priority 
over other issues arising from the manner in which the war was conducted. 
Questions concerned with other matters, such as the treatment of the inhabitants 
of Kuwait, and of prisoners and hostages, demonstrably involved large numbers 
of human lives and vast human suffering. We should not be surprised that, in the 
midst of death and destruction, and daily fear of worse to come in the form of gas, 
bacteriological and nuclear warfare, the belligerents did not always have as their 
first consideration the protection of the natural environment over the medium or 
long term. 

Yet the environmental damage in the 1991 Gulf War did raise classic issues of 
a kind with which the laws of war have traditionally been concerned. The laws of 
war — sometimes known as international humanitarian law — have always sought 
to limit certain kinds of military activities which cause death, misery, and 
destruction to those not directly involved in a war, or which continue to wreak 
havoc long after the actual war is over. It is partly for this reason that they have 
been concerned with the protection of civilians, and of neutral countries, shipping 
and property; with the rules against certain uses of weapons (e.g. some types of 
mines) which are liable to detonate blindly and at the wrong time; and with the 
prohibitions of unnecessary destruction. Against this background, it is entirely 
natural that discussion of the laws of war today should encompass renewed 
consideration of the environmental aspects of modern war. 

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? 


Throughout history, wars have posed severe threats to at least the immediate 
environment. Scorched earth policies and deliberate flooding, whether offensive 

Roberts 225 

or defensive, have had serious effects on cultivable land. Concern about damage 
to water supplies, orchards, crops and forests can be found in much writing and 
legal thinking about warfare over the centuries. Early writings on the laws of war, 
including those of Hugo Grotius, show great concern over devastation of land, 
fields, trees and so on. 

If the problem is perennial, the extent and depth of concern about it — the sense 
that natural resources are limited, the human environment fragile, and the 
problem global in character — is something which has clearly grown in the 
post- 1945 period. Geoffrey Best has reflected the common perception that there is 
a new factor here: 

The capacity of war to cause 'widespread, long-term and severe damage' to the natural 
environment constitutes a menace that is historically novel. Methods and means of 
warfare did not really place the doing of such damage to the natural environment 
within the reach of belligerents until World War II. What was however within their 
reach from earliest recorded times was the ability to destroy part of the anthropogenic 
environment. This history of civilization, past and present, scanned with a view to 
ascertaining what kinds and degrees of concern may have been shown about 
belligerents' religious, ethical or legal responsibilities in this respect discloses: (a) a 
small but consistent canon of laws and customs aiming to control the impact of 
hostilities on the anthropogenic environment; and (b) some lessons as to the value 
of those laws and customs and the value of the whole body of norms relating to warfare 
of which they form a part. 

In both world wars in this century, oil was a key bone of contention between 
the belligerents, and there were many cases of destruction of oil installations. 
However, such destruction was not generally seen at the time as an assault on the 
environment, nor as necessarily reprehensible. Thus, in the winter of 1916-17, 
when Romania was invaded by the forces of the Central Powers, the oilfields were 
destroyed on behalf of the Entente Powers: 

Three-quarters of the country had been lost, with all the fertile corn-bearing plains 
and the oil-fields, by far the most extensive in Europe. Happily, the latter were to 
yield nothing to the enemy for several months, for Colonel Norton Griffiths, an 
English member of Parliament, went round in a car systematically destroying them. 
Sometimes he barely escaped from enemy patrols, and had often to face the not 
unnatural hostility of the population; where time was lacking for him to set them on 
fire, they were put out of action by throwing obstructions down the pipes. 

The Second Indochina War (the Vietnam War), which ended in 1975, saw 
massive programs of defoliation, forest-destruction, and attempts at rain-making: 
these were widely criticized internationally, and contributed greatly to 
international efforts to tackle environmental aspects of warfare. The U.S. 
Government appears to have recognized that the use of such weapons in 

226 Protection of the Environment During Armed Conflict 

international war, outside the territory of a government which acquiesced in it, 
would be legally questionable. George Aldrich, from 1965 to 1977 a Legal Adviser 
for East Asian and Pacific Affairs in the State Department, subsequently wrote: 

Even during the Vietnam War, when American armed forces used defoliants on a 
large scale, the legal advice given by the Legal Adviser to the Secretary of State was 
that it would be prudent to limit their use to the territories of South Vietnam and 
Laos, where we had the consent of the Government of the territory, and avoid 
establishing a precedent for the first use of these novel chemical agents as weapons 
of war on the territory of either an adversary (North Vietnam) or a neutral 
(Cambodia). To the best of my knowledge, that advice was followed. . . .10 

The Iran-Iraq War of 1980-88 saw extensive environmental damage, some of it 
resulting from the large-scale destruction of oil installations. There were 
numerous oil spills in the waters of the Gulf, the worst of which was in the Nowruz 
field off the coast of Iran in 1983, but none was quite on the scale of the major spill 
in the 1991 Gulf War. U.N. Security Council Resolution 540 of 31 October 1983, 
condemning violations of international humanitarian law in this war, called on 
belligerents to stop hostilities in the Gulf, and to refrain from action threatening 
marine life there. 


International norms relating to the protection of the environment can be found 
in many quite different kinds of framework. There should be no automatic 
assumption that the laws of war are the only relevant body of law, or the only means 
of tackling a rather complex set of problems. Indeed, general political statements 
from the Stockholm Declaration 1972 to the Rio Declaration 1992, and also 
U.N. General Assembly resolutions, may be as important as formally binding 
agreements. There is also a growing number of general multilateral and other 
treaties relating directly or indirectly to the environment. Examples include not 
only the main treaties in the field of environmental law, but also the 1959 Antarctic 
Treaty , partly motivated by the desire to preserve the fragile ecology of the 
Antarctic; the Partial Nuclear Test Ban Treaty of 1963, partly motivated by 
widespread concern about the effects of nuclear testing on the atmosphere and 
thereby on the food chain; and the 1972 Biological Weapons Convention, which 
completely prohibits the possession of certain weapons of a type which could 
seriously impact the environment. 

Treaties with a bearing on the environment, though normally applicable in 
peacetime, may continue to be applied in wartime as well. Whether or not such 
treaties are formally applicable, belligerents may be expected to operate with due 
regard for their provisions. Further, such treaties may still govern relations 
between belligerents and neutrals. 

Roberts 227 

The terms of many treaties were potentially relevant to practical issues faced in 
the 1990-91 Gulf Conflict. A few examples must suffice. The 1954 Convention for 
the Prevention of Pollution of the Sea by Oil deals with oil discharged from ships. 
However, it gives a higher priority to other values, including human life, when it 
specifies that the treaty does not apply to "the discharge of oil ... for the purpose 
of securing the safety of the ship, preventing damage to the ship or cargo, or saving 
life at sea." The 1982 Law of the Sea Convention, in force only since November 
1994, contains extensive obligations to protect the marine environment. 

Various bilateral and regional treaties were of particular significance in this 
war. The most important regional accord on environmental matters was the 
Kuwait Regional Convention for Cooperation on the Protection of the Marine 
Environment from Pollution 1978, to which many States in the region were 
parties, including Iran, Iraq, Kuwait, and Saudi Arabia. In accord with its terms, 
the Regional Organization for the Protection of the Marine Environment 
(ROPME) was established, with headquarters in Kuwait. Remarkably, its Council 
had continued to hold meetings, with participation from both warring parties, 
during the Iran-Iraq War. During the Iraqi occupation of Kuwait in 1990-91, its 
staff fled, but its headquarters was not looted or taken over. ROPME did assist 


clean-up operations in 1991 and after. 


Despite the importance of other legal approaches, the laws of war, which 
attracted considerable attention in the 1991 Gulf War, are central to any discussion 
of efforts to control the environmental damage of war. If the environment is not 
to be ignored completely in the conduct of hostilities, then there is an obvious case 
for having specific rules relating to the protection of the environment, not just in 
general, but also in wartime. 

What, if anything, do the laws of war say about the environment? Sometimes 
it is asserted that the laws of war have failed entirely to address this problem: this 
is used as one argument for now creating a new international treaty on the subject. 
Thus, remarkably, the Soviet Minister of the Environment, Prof. Nikolai 
Vorontsov, wrote in May 1991: 

There was no sound scientific examination of the destruction caused to the 

environment during the war in Vietnam, no lessons were learned. After the war, no 


measures on environmental protection in case of armed conflicts were worked out. 

In fact, the provisions of the laws of war regarding the environment, while far 
from satisfactory, are by no means as lacking as Prof. Vorontsov suggested. This 
is one of the many areas in which the laws of war consist of a very disparate body 
of principles, treaties, customary rules, and practices, which have developed over 

228 Protection of the Environment During Armed Conflict 

the centuries in response to a wide variety of practical problems and moral 

A. Underlying Principles of the Laws of War 

In considering what the laws of war have to say about environmental damage, 
it is necessary to start with their underlying principles, most of which seem to have 
a bearing on the question of environmental destruction. These principles, though 
ancient in origin, are reflected in many modern texts and military manuals. They 
include the principle of proportionality, particularly in its meaning of 
proportionality in relation to the adversary's military actions or to the anticipated 
military value of one's own actions; the principle of discrimination, which is about 
care in the selection of methods, of weaponry and of targets; the principle of 
necessity, under which belligerents may only use that degree and kind of force, not 
otherwise prohibited by the law of armed conflict, which is required for the partial 
or complete submission of the enemy with a minimum expenditure of time, life, 
and physical resources; and the closely-related principle of humanity, which 
prohibits the employment of any kind or degree of force not required for the 
purpose of the partial or complete submission of the enemy with a minimum 


expenditure of time, life, and physical resources. 

Each of these four principles strongly points to the conclusion that actions 
resulting in massive environmental destruction, especially where they do not serve 
a clear and important military purpose, would be questionable on many grounds, 
even in the absence of specific rules of war addressing environmental matters in 
detail. When the four principles are taken together, such a conclusion would seem 

It has been suggested by Richard Falk that there are, in addition, two 'subsidiary 
principles' which "seem to be well-grounded in authoritative custom and to have 
relevance to the array of special problems posed by deliberate and incidental 
environmental harm." These are the principles of neutrality and of inter-generational 


equity. The proposition that these are in fact key principles of the laws of war, 
though it may be unorthodox, is serious. Both these types of consideration do 
inform certain provisions of the laws of war, and do affect attitudes to 
environmental destruction. However, since these principles do not add greatly to 
existing law as reflected in the four principles already outlined and in treaties, it 
is not necessary to pursue the issue here. 

There are obvious limits to the value of customary principles as a basis for 
guiding the policies of States in wartime. As Richard Falk has said, in pessimistic 

there are extreme limitations associated with a need to rely on these customary 
principles. Their formulation is general and abstract, and susceptible to extreme 
subjectivity and selectivity in their application to concrete circumstances. 

Roberts 229 

B. Treaties on the Laws of War 

Can treaty law, with its more precise texts and its formal systems of adherence 
by States, overcome any limitations of the framework of principles as outlined 
above? In treaties on the laws of war, several kinds of prohibitions can be found 
which have a bearing on the protection of the environment in armed conflicts and 
in occupied territories: 

1. Many general rules protecting civilians, since these rules also imply protection of 
the environment on which the civilians depend. 

2. Prohibitions of unnecessary destruction, and of looting of civilian property. 

3. Prohibitions of attacks on certain objectives and areas (e.g., restrictions on the 
destruction of dikes). 

4. Prohibitions and restrictions on the use of certain weapons (e.g., gas, chemical and 

5. Prohibitions and restrictions on certain methods of war (e.g., the poisoning of wells, 
or the indiscriminate and unrecorded laying of mines). 

The word 'environment' does not occur in any treaty on the laws of war before 
1977. This does not mean that there was no protection of the environment, but 
rather that such protection is found in a variety of different forms and contexts. 
The pre- 1977 treaties on the laws of war relate to protection of the environment 
obliquely rather than directly: they offer general statements of principle, and also 
some detailed regulations which may on occasion happen to be relevant to the 

Thus, the 1868 St. Petersburg Declaration on explosive projectiles, in ringing 
words which were to prove terribly problematic in subsequent practice, declared 
that "the only legitimate object which States should endeavour to accomplish 

O A 

during war is to weaken the military forces of the enemy." 

Several of the Hague Conventions and Declarations of 1899 and 1907 contained 
provisions with a bearing on the environment. In the 1907 Hague Convention IV 


on land war, the preamble refers to the need "to diminish the evils of war, as far 
as military requirements permit", and goes on to state in the famous Martens 

Until a more complete code of the laws of war has been issued, the high contracting 
Parties deem it expedient to declare that, in cases not included in the Regulations 
adopted by them, the inhabitants and the belligerents remain under the protection 
and the rule of the principles of the law of nations, as they result from the usages 
established among civilized peoples, from the laws of humanity, and the dictates of 
the public conscience. 

In the Regulations annexed to the 1907 Hague Convention IV, Article 22 states: 
"The right of belligerents to adopt means of injuring the enemy is not unlimited." 
Geoffrey Best has commented: "Post- 1945 extensions of that principle from its 

230 Protection of the Environment During Armed Conflict 

traditional application to enemy persons and properties to the natural 
environment are no more than logical, given the novel and awful circumstances 


that have suggested them." Article 23 (g) of the Hague Regulations is relevant 
to certain instances of environmental damage when it states that it is especially 
forbidden "to destroy or seize the enemy's property, unless such destruction or 
seizure be imperatively demanded by the necessities of war." Also in the 
Regulations, Section III (which deals with military occupations) contains many 
provisions having a potential bearing on environmental protection. Article 55 is 
the most obvious, but not the only, example: 

The occupying State shall be regarded only as administrator and usufructuary of 
public buildings, real estate, forests, and agricultural estates belonging to the hostile 
State, and situated in the occupied country. It must safeguard the capital of these 
properties, and administer them in accordance with the rules of usufruct. 

It could be further argued that the rules relating to neutrality in war, as 
contained in 1907 Hague Convention V (in land war) and 1907 Hague Convention 
XIII (in naval war), by requiring belligerents to respect the sovereign rights of 
neutral powers, prohibit environmental damage seriously affecting a neutral 


State. This is a typical case in which protection of the environment, even where 
it is not mentioned in existing law, may nonetheless be a logical implication of 
such law. 


The 1925 Geneva Protocol on gas and bacteriological warfare provides one 
basis for asserting the illegality of forms of chemical warfare having a harmful 
effect on the environment. The Protocol has been the subject of a number of 
controversies as to its exact scope, and these controversies have included matters 
relating to the environment. In 1969, during the Second Indochina War, and 
following reports of U.S. use of chemicals in Vietnam, a U.N. General Assembly 
Resolution (which unsurprisingly did not receive unanimous support) addressed 
the issue, declaring that the 1925 Protocol prohibits the use in armed conflicts of: 

(a) Any chemical agents of warfare — chemical substances, whether gaseous, liquid 
or solid — which might be employed because of their direct toxic effects on man, 
animals or plants; 

(b) Any biological agents of warfare — living organisms, whatever their nature, or 
infective material derived from them — which are intended to cause disease and 
death in man, animals or plants, and which depend for their effects on their ability 
to multiply in the person, animal or plant attacked. 

The four 1949 Geneva Conventions say little about the protection of the 
environment. They are concerned above all with the immediate and important 
task of protection of victims of war. However, one of these agreements, the 1949 
Geneva Convention IV (the Civilians Convention) builds on the similar provisions 

Roberts 231 

of the 1907 Hague Regulations when it states in Article 53, which is in the section 
on occupied territories: 

Any destruction by the Occupying Power of real or personal property belonging 
individually or collectively to private persons, or to the State, or to other public 
authorities, or to social or co-operative organizations, is prohibited, except where 
such destruction is rendered absolutely necessary by military operations. 

The International Committee of the Red Cross (ICRC) commentary on this 
article contains the following assessment on the question of 'scorched earth' 

A word should be said here about operations in which military considerations require 
recourse to a 'scorched earth' policy, i.e. the systematic destruction of whole areas by 
occupying forces withdrawing before the enemy. Various rulings of the courts after 
the Second World War held that such tactics were in practice admissible in certain 
cases, when carried out in exceptional circumstances purely for legitimate military 
reasons. On the other hand, the same rulings severely condemned recourse to 
measures of general devastation whenever they were wanton, excessive or not 


warranted by military operations. 

Article 147 of Geneva Convention IV, and similar articles in Conventions I and 

II, confirm that grave breaches of the Convention include "extensive destruction 

and appropriation of property, not justified by military necessity and carried out 

unlawfully and wantonly." 


The 1954 Hague Cultural Property Convention seeks to protect a broad range 
of objects, including groups of historic buildings, archaeological sites, and centers 
containing a large amount of cultural property. All such property is to be protected 
from exposure to destruction, damage, and pillage. In many cases, obviously, 
action which was wantonly destructive of the environment would also risk 
violating the provisions of this Convention. 

Environmental matters were addressed by name and directly in two laws of war 
agreements concluded in 1977. In both cases one important stimulus to new 
law-making was the Second Indochina War. Although neither of these treaties was 
formally in force in the 1991 Gulf War, they provide language and principles which 
may assist in defining and asserting the criminality of certain threats to the 

The first of these two 1977 agreements is the U.N. Convention on the 
Prohibition of Military or Any Other Hostile Use of Environmental Modification 

35 r> 

Techniques. This accord (otherwise known as the ENMOD Convention) was 
concluded mainly in reaction to the use by the United States of forest and crop 
destruction, and rain-making techniques, in the Second Indochina War. It deals, 
essentially, not with damage to the environment, but with the use of the forces of 

232 Protection of the Environment During Armed Conflict 

the environment as weapons. Article I prohibits all "hostile use of environmental 
modification techniques having widespread, long-lasting or severe effects as the 
means of destruction, damage or injury" to the adversary. Article II then defines 
'environmental modification techniques as "any technique for changing — 
through the deliberate manipulation of natural processes — the dynamics, 
composition or structure of the Earth, including its biota, lithosphere, 
hydrosphere and atmosphere, or of outer space." An authoritative U.N. 
understanding which was attached to the draft text of the Convention in 1976 
provides a non-exhaustive list of phenomena which could be caused by 
environmental modification techniques: these include, among other things, "an 
upset in the ecological balance of a region." 

The second of these 1977 laws of war agreements touching on the environment 

is the 1977 Additional Protocol I. This accord, which is additional to the four 

1949 Geneva Conventions, contains extensive provisions protecting the civilian 

population and civilian objects. Article 48, entitled 'Basic Rule', states: 

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. 

Article 52, on 'General Protection of Civilian Objects', similarly provides a 
framework for protecting civilian objects, and thus has obvious implications for 
protection of the environment. 

In two of its articles, Additional Protocol I deals specifically with the question 
of damage to the natural environment. (This is distinct from the manipulation of 
the forces of the environment as weapons, which had been addressed in the 
ENMOD Convention.) Article 35, which is in a section on 'Methods and Means 
of Warfare', states in full (the third paragraph being the most explicit on the 

1. In any armed conflict, the right of the Parties to the conflict to choose methods 
and means of warfare is not unlimited. 

2. It is prohibited to employ weapons, projectiles and material and methods of warfare 
of a nature to cause superfluous injury or unnecessary suffering. 

3. 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 

The second article in Additional Protocol I referring specifically to damage to 
the environment is in the chapter on 'Civilian Objects', which is within the section 

Roberts 233 

of the Protocol dealing with protection of the civilian population against the effects 
of hostilities. Article 55 states in full: 

1. Care shall be taken in warfare to protect the natural environment against 
widespread, long-term and severe damage. This protection includes a prohibition of 
the use of methods or means of warfare which are intended or may be expected to 
cause such damage to the natural environment and thereby to prejudice the health 
or survival of the population. 

2. Attacks against the natural environment by way of reprisals are prohibited. 

The ICRC commentary notes that the 'care shall be taken' formula in the first 

paragraph of Article 55 leaves some latitude for judgment, whereas the second 

paragraph contains an absolute prohibition. In all cases, it is clear that the phrase 

'widespread, long-term and severe damage' excludes a great deal of minor and 

short-term environmental damage. Bothe, Partsch and Solf say: 

Arts. 35(3) and 55 will not impose any significant limitation on combatants waging 
conventional warfare. It seems primarily directed to high level policy decision 
makers and would affect such unconventional means of warfare as the massive use 
of herbicides or chemical agents which could produce widespread, long-term and 

• 39 

severe damage to the natural environment. 

The rules regarding the environment in Articles 35 and 55 have produced some 
rather varied responses. The UK delegation in the negotiations was cool about the 
inclusion of the clause relating to the environment in Article 35: "We consider 
that it is basically in order to protect the civilians living in the environment that 
the environment itself is to be protected against attack. Hence, the provision on 
protection of the environment is in our view rightly placed in the section on 
protection of civilians." 

In its examination of both Articles 35 and 55, the ICRC commentary considers 
the meaning of 'long-term', suggesting that it refers to decades rather than months. 
This may exclude much environmental damage. However, the commentary does 
make it clear that the term 'natural environment' should be interpreted broadly, 
referring as it does to the "system of inextricable interrelations between living 
organisms and their inanimate environment." Indeed, the last words of Article 55, 
paragraph 1, imply such a connection between the environment and humankind. 
The commentary says: 

The concept of the natural environment should be understood in the widest sense to 
cover the biological environment in which a population is living. It does not consist 
merely of the objects indispensable to survival mentioned in Article 54 ... but also 
includes forests and other vegetation mentioned in the Convention of 10 October 

234 Protection of the Environment During Armed Conflict 

1980 on Prohibitions or Restrictions on the Use of Certain Conventional Weapons 
as well as fauna, flora and other biological or climatic elements. 

Article 54, mentioned in the preceding quotation, is one of a number of other 
provisions in the same chapter of Additional Protocol I which, while not 
mentioning the environment by name, do in fact prohibit certain forms of military 
action destructive of the environment. Thus Article 54, paragraph 2, states (subject 
to certain important provisos in paragraphs 3 and 5): 

It is prohibited to attack, destroy, remove or render useless objects indispensable to 
the survival of the civilian population, such as foodstuffs, agricultural areas for the 
production of foodstuffs, crops, livestock, drinking water installations and supplies 
and irrigation works, for the specific purpose of denying them for their sustenance 
value to the civilian population or to the adverse Party, whatever the motive, whether 
in order to starve out civilians, to cause them to move away, or for any other motive. 

Still in the chapter on 'Civilian Objects', Article 56 deals with 'Protection of 
works and installations containing dangerous forces'. Paragraph 1 (subject to 
certain provisos in paragraph 2) states: 

Works or installations containing dangerous forces, namely dams, dykes and nuclear 
electrical generating stations, shall not be made the object of attack, even where these 
objects are military objectives, if such attack may cause the release of dangerous forces 
and consequent severe losses among the civilian population. Other military 
objectives located at or in the vicinity of these works or installations shall not be 
made the object of attack if such attack may cause the release of dangerous forces 
from the works or installations and consequent severe losses among the civilian 

This article is qualified by the second paragraph, which in effect says that the 
protection it offers ceases if the military objective in question is used in regular, 
significant, and direct support of military operations. Despite this qualification, 
during the 1980s the U.S. government argued that the article gave too great a degree 
of immunity to dams, dikes, and nuclear electrical generating stations. A further 
U.S. criticism was that "the provisions of Article 56 purposely use the word 'attack' 
rather than 'destroy' (as was contained in the original ICRC proposal) in order to 
preserve the right of a defender to release dangerous forces to repel an 
attacker. . . ." However, the article plainly does not give total immunity from 
attack. Where hydroelectric generating stations or nuclear power plants are 
contributing to a grid in regular, significant, and direct support of military 
operations, militarily necessary attacks against them are not prohibited. 

Others have suggested that Article 56 did not go far enough, or that it should 
be interpreted to cover a wider range of works and installations containing 
dangerous forces than the words "namely dams, dykes and nuclear electrical 

Roberts 235 

generating stations" might suggest. This latter view does not reflect the 
negotiating history of Article 56. This particular article does not cover the question 
of attacking other kinds of installations containing dangerous forces: for example, 
factories manufacturing toxic products, and oil facilities. The ICRC commentary 
indicates that such installations were excluded from Article 56, but may be covered 
by other articles: 

Several delegations wished to include other installations in the list, in particular oil 
production installations and storage facilities for oil products. It appears that the 
consultations were not successful, and the sponsors of proposals in this field finally 
withdrew them. There is no doubt that Article 55 ... will apply to the destruction of 
oil rigs resulting in oil gushing into the sea and leading to extensive damage such as 
that described in that article. As regards the destruction and setting alight of 
refineries and petroleum storage facilities, it is hardly necessary to stress the grave 
danger that may ensue for the civilian population. Extending the special protection 
to such installations would undoubtedly have posed virtually insoluble problems, 
and it is understandable that the Conference, when it adopted these important 
prohibitions, limited them to specific objects. 

Much else in Additional Protocol I has a bearing on the environment. Thus, in 
the chapter on Civil Defence, which seeks to give protection to various measures 
intended to alleviate the effects of hostilities or disasters, the tasks of civil defense 
forces are so defined in Article 61 as to include, inter alia: decontamination and 
similar protective measures; emergency repair of indispensable public utilities; 


and assistance in the preservation of objects essential for survival. 

Given that Additional Protocol I was not binding as a treaty during the 1991 
war, can its key rules on the environment be said to reflect customary law? A 
number of general rules which have implications for the environment, including 
Article 48 and much of Article 52, are widely accepted as customary law. As to 
Articles 35(3) and 55, which specifically mention the environment, Prof. 
Greenwood acknowledges that they have been viewed by Germany and the United 
States as representing a new rule; he then states: 

Nevertheless, while there is likely to be continuing controversy about the extent of 
the principle contained in Article 35(3), the core of that principle may well reflect an 
emerging norm of international law. 

As to Article 56, he suggests that there are grounds for doubting whether the 
special additional protection it affords to dams, dikes, and nuclear power stations 
has the status of customary law. 

Only one other laws of war agreement refers specifically to the environment: 
the 1981 U.N. Convention on Specific Conventional Weapons. The preamble 
repeats the exact words of Additional Protocol I, Article 35(3), which were quoted 

236 Protection of the Environment During Armed Conflict 

in full above, and also recalls a number of other general principles which could 
have a bearing on environmental damage. Protocol III annexed to the Convention 
deals with incendiary weapons. Article 2, paragraph 4 of that Protocol states, in a 
notably weak formulation: 

It is prohibited to make forests or other kinds of plant cover the object of attack by 
incendiary weapons except when such natural elements are used to cover, conceal or 
camouflage combatants or other military objectives, or are themselves military 

C. Case Law 

In addition to treaties, past cases are an important guide to the law. In the 
Second World War there was much general devastation, on many fronts in both 
Europe and Asia. Some of this resulted in charges of wanton destruction at 
post-war trials. 

The Charter of the International Military Tribunal at Nuremberg did not 
specifically mention the environment, but it did include in its catalogue of war 
crimes "plunder of public or private property, wanton destruction of cities, towns, 
or villages, or devastation not justified by military necessity." In the Tribunal's 
trial of the major German war criminals in 1945-46, there was a great deal of 
evidence about such destruction. One of the defendants, General Alfred Jodl, was 
inter alia found guilty of war crimes including scorched earth destruction in respect 
of North Norway, Leningrad, and Moscow. 

Many post-Second World War cases before national tribunals related to 
environmentally damaging abuse of natural resources in occupied territories. In 
respect of one Polish case, the United Nations War Crimes Commission was asked 
to determine whether ten German civilian administrators, each of whom had been 
the head of a department in the Forestry Administration in occupied Poland in 
1939-44, could be listed as war criminals on a charge of pillaging Polish public 
property. It was alleged that the accused had caused "the wholesale cutting of 
Polish timber to an extent far in excess of what was necessary to preserve the timber 
resources of the country." The U.N. War Crimes Committee agreed that prima facie 

evidence of the existence of a war crime had been shown, and nine of the ten 

officials charged were listed as accused war criminals. 

On the other hand, in one post-war case, scorched-earth policies by a retreating 

occupying power were not ruled to be necessarily illegal. In the case of United 

States v. Wilhelm List (also called the Hostages Case), a U.S. military tribunal at 

Nuremberg found one of the defendants, General Lothar Rendulic, not guilty on 

a part of the charge against him based on scorched earth. In the winter of 1944-45, 

he had been in charge of retreating German forces in northern Norway. As a 

precautionary measure against a possible attack by advancing Soviet forces, he had 

destroyed housing, communication and transport facilities in the area. The court 

Roberts 237 

said that the defendant "may have erred in the exercise of his judgement but he 
was guilty of no criminal act." This part of the judgment was intensely 
controversial in Norway, and was discussed in the Storting on several occasions. 

It was widely felt that these German devastations, which had continued up to 6 

May 1945, went far beyond the demands of military realism. 


A. General Problems 

Before the events of the Gulf Conflict of 1990-91, international law in general, 
and the laws of war in particular, had not been silent on the matter of 
environmental damage in war. Yet there are many bases of criticism of the rules 
as they stood in 1990. The provisions were dispersed in too many types of sources 
and in too many different agreements; they lacked specificity; they relied heavily 
on the always hazardous process whereby commanders balance military necessity 
against other considerations; they had not caught up with the growing concern in 
many countries about environmental issues; and the means of investigating 
complaints and punishing violations were not always clear. Above all, there was 
no effective means of ensuring that an admittedly disparate set of principles and 
rules was actually accepted, understood, and implemented; and there was much 
scope for disagreement about what were acceptable targets and methods where 
risks to the environment were involved. 

Treaties on the laws of war, before 1977, contained no mention of the word 
'environment'; and their provisions can be said to relate to the environment only 
indirectly. They do so through prohibitions of wanton destruction; and also 
through protection of property, whether public or private — an approach which 
has limits as some environmental 'goods', such as the air we breathe, are not 
property. Despite such weaknesses, these older rules constituted the strongest legal 
basis for asserting the illegality of much environmental destruction in war. 

Finally, some of the newer laws-of-war rules which attempt to deal directly with 
protection of the environment — especially those in the 1977 Additional Protocol 
I and in the ENMOD Convention — had serious limitations, some of which have 
been mentioned above. They had also failed to secure universal assent: this is 
indicated by the U.S. attitude to the Protocol, discussed next. During the 1990-91 
crisis there was a tendency in public statements about environmental damage to 
refer mainly to these newer rules, because they do mention the word 'environment' 
as such, whereas legally stronger and more directly relevant provisions from earlier 
treaties received less attention. 

B. U.S. Attitudes to the Environmental Provisions of Additional Protocol I 

Of all the laws of war sources which have been cited, the Additional Protocol I 
might seem to have the clearest and most explicit provisions about damage to the 

238 Protection of the Environment During Armed Conflict 

environment. Yet these provisions are not without problems, both as regards their 
substance and as regards the non-participation of certain important States, 
especially the United States, in this agreement. U.S. official and non-official 
thinking on Additional Protocol I is more open than that in other States, and 
merits scrutiny. 

Despite its non-accession to Additional Protocol I, the U.S. Government had 
explicitly recognized, long before Iraq's invasion of Kuwait, that many of this 
agreement's provisions either reflect customary law, or merit support on other 
grounds. The key question, therefore, is whether the U.S. Government takes such 
a view of the provisions which have a bearing on protection of the environment. 

When, on 29 January 1987, President Reagan transmitted Additional Protocol 
II to the U.S. Senate for its advice and consent to ratification, he said in his letter 
of transmittal: 

... we can reject Protocol I as a reference for humanitarian law, and at the same time 
devise an alternative reference for the positive provisions of Protocol I that could be 
of real humanitarian benefit if generally observed by parties to international armed 
conflicts. We are therefore in the process of consulting with our allies to develop 
appropriate methods for incorporating these positive provisions into the rules that 
govern our military operations, and as customary international law. I will advise the 
Senate of the results of this initiative as soon as it is possible to do so. 

Earlier in January 1987, Michael J. Matheson, Deputy Legal Adviser, United 
State Department of State, had given a fuller account of U.S. Government thinking 
about Additional Protocol I. He acknowledged that U.S. non-ratification left a gap, 
and gave some indication as to how it might be filled: 

Protocol I cannot be now looked to by actual or potential adversaries of the United 
States or its allies as a definitive indication of the rules that U.S. forces will observe 
in the event of armed conflict and will expect its adversaries to observe. To fill this 
gap, the United States and its friends would have to give some alternative clear 
indication of which rules they consider binding or otherwise propose to observe. 

... in our discussions with our allies to date we have not attempted to reach an 
agreement on which rules are presently customary law, but instead have focused on 
which principles are in our common interests and therefore should be observed and 
in due course recognized as customary law, whether they are presently part of that 
law or not. 

Mr Matheson went on to list "the principles that we believe should be observed 
and in due course recognized as customary law, even if they have not already 
achieved that status . . ." His partial listing of these principles did not include those 
which explicitly address the protection of the natural environment. Indeed, he 
indicated that the U.S. administration was opposed to the principle in Article 35 

Roberts 239 

regarding the natural environment, saying that it was "too broad and ambiguous 

and is not a part of customary law." He was also reported as expressing U.S. 

opposition to the rule on protection of the environment in Article 55 on the ground 

that it was: 

too broad and too ambiguous for effective use in military operations. He concluded 
that the means and methods of warfare that have such a severe effect on the natural 
environment so as to endanger the civilian population may be inconsistent with other 


general principles, such as the rule of proportionality. 

Matheson and Judge Abraham Sofaer, Legal Adviser, United State Department 
of State, also criticized in detail the provisions of Article 56, concerning works and 

installations containing dangerous forces; as have some subsequent official U.S. 

• • 59 

In the public polemics about whether or not the U.S. should ratify Additional 

Protocol I, there had not been a systematic and sustained debate about these 

particular provisions bearing on the environment. George Aldrich did go so far as 

to assert that these provisions may be verging on the status of customary law: 

While these provisions of Articles 35 and 55 are clearly new law — 'rules established 
by the Protocol' — I would not be surprised to see them quickly accepted as part of 
customary international law insofar as non-nuclear warfare is concerned... 

Despite such optimism, the awkward truth is that the U.S. went into the 1991 
Gulf War against a background of scepticism, not just generally about Additional 
Protocol I, but particularly about those of its provisions that explicitly mention 
the environment. Further, the initiatives to consult allies to determine which of 
the Protocol's provisions were generally acceptable had not led to any published 
results by the start of 1991 . These facts may have hampered the U.S. from placing 
much explicit reliance on provisions in Additional Protocol I, even though there 
were many which were accepted in practice and did have at least an indirect bearing 
on environmental protection. 



From 2 August 1990 — the day when armed conflict between Iraq and Kuwait 
began — many laws of war agreements were, beyond any serious doubt, formally 
in force as regards the Iraqi occupation and the subsequent war. (The term 
'conflict' is used here to refer to both the occupation and the war.) Some other 
agreements were not formally in force. 

The following sections show which of the principal States involved in, or 
directly affected by, the conflict were formal parties to the relevant accords. The 

240 Protection of the Environment During Armed Conflict 

positions of fourteen States, chosen somewhat arbitrarily, are considered here: 
Canada, Egypt, France, Iran, Iraq, Israel, Italy, Jordan, Kuwait, Saudi Arabia, 
Syria, Turkey, U.K., and U.S. 

This is obviously not intended as a complete list: forty-two countries provided 
contributions to the Coalition, of which twenty-eight took part in military 
activities in the region: yet only ten of them appear in this list. In addition, many 
other States in the region were involved in the war and its consequences in some 
other way. 

A. Agreements in Force in the Gulf Conflict 

The laws of war agreements under the following three headings were beyond 
any serious doubt formally in force. 

1. 1907 Hague Convention IV and Regulations on Land Warfare. Although by no 
means all the States involved in the conflict were formally parties to this accord, or 
to the very similar one of 1899, the Hague Convention No. IV and Regulations are 
widely accepted as part of international customary law, binding on all States. They 
govern the conduct of occupation forces as well as armed combat. (Other 1907 Hague 
Conventions also contained many relevant provisions, especially No. V on Neutrality 
in Land War, No. VIII on Automatic Submarine Contact Mines, No. IX on 
Bombardment by Naval Forces, and No. XIII on Neutrality in Naval War.) 

2. 1925 Geneva Protocol on Gas and Bacteriological Warfare. All fourteen States 
listed above were parties to this treaty, which prohibits the use in war of gas, chemical 
and bacteriological weapons. 

3. The four 1 949 Geneva Conventions on Protection of Victims of War. All fourteen 
States (and indeed virtually all States in the international community) were parties 
to these treaties, which govern, respectively: I - Wounded and Sick; II - Wounded, 
Sick and Shipwrecked at Sea; III - Prisoners of War; IV - Civilians, especially in 
occupied territory, and under internment. 

In addition, because Iraq and Kuwait were both parties, the 1954 Hague 
Cultural Property Convention and Protocol was in force, at least as regards Iraq's 
occupation of Kuwait. Although three of the fourteen States listed above were not 
parties — Canada (which had not signed at all), and U.K. and U.S. (which had 
signed but not ratified) — they have observed the Convention's main provisions 
in practice. As the convention's relevance to environmental protection is limited, 
its application in the 1991 Gulf War is not pursued here. 

B. Agreements Not Fully in Force in the Gulf Conflict 

Certain key agreements were not fully in force for all parties to this conflict. 
The three most recent laws of war agreements — and the only ones to mention the 
environment by name — all fell into this category. 

Roberts 241 

The 1977 Convention on Environmental Modification Techniques entered 
into force in a general way on 5 October 1978. Of the fourteen countries listed 
above, only six (Canada, Egypt, Italy, Kuwait, U.K,. and U.S.) were parties. Four 
(Iran, Iraq, Syria and Turkey) had signed but not ratified. Four (France, Israel, 
Jordan, and Saudi Arabia) had not signed or acceded at all. It is possible that States 
parties were still obliged to implement this agreement in the war. 

The 1977 Additional Protocol I entered into force in a general way on 7 
December 1978. Of the fourteen countries listed above, only six (Canada, Italy, 
Jordan, Kuwait, Saudi Arabia, and Syria) were parties. Again, four (Egypt, Iran, 
U.K., and U.S.) had signed but not ratified. Four (France, Iraq, Israel, and Turkey) 


had not signed or acceded at all. According to its Article 1, paragraph 3, this 
treaty applies in the situations referred to in Article 2 common to the four 1949 
Geneva Conventions: in other words, it applies as between States parties, who are 
also obliged to apply it in relations with a non-party if the latter accepts and applies 
the treaty's provisions. Since Iraq showed no sign of doing this, and since a 
significant number of its adversaries were not parties, the Protocol cannot be said 
to have been in force in the Gulf conflict. However, as noted below, certain States 
not parties to the Protocol (including the U.S.) did make moves towards 'accepting 
and applying' some of the Protocol's provisions in this conflict. 

The 1981 U.N. Convention on Specific Conventional Weapons was also not 
formally in force in the Gulf conflict. Indeed, the only one of the fourteen States 
listed above to have become legally bound by it (through signature and ratification) 
was France; and France, at ratification of this Convention, had only accepted its 
Protocols I and II — not Protocol III on incendiary weapons. 

Despite the fact that they were not formally in force in this war, these three 
agreements were potentially relevant to the Gulf conflict in a number of 
overlapping ways. Firstly, to the extent that some of their provisions were 
accepted as an expression of customary international law, they were binding 
on all States. Secondly, many States could in practice, as a matter of policy as 
much as of formal legal obligation, choose to observe norms outlined in these 
agreements; and the language used in these accords provided one basis for 
pronouncements, including by U.S. authorities, about policy controlling the 
use of force in this conflict. 

C. ICRC Statements on Applicability of Law 

From 2 August 1990 onwards, in extensive direct contacts with the 
governments concerned, and also in press releases, the International Committee 
of the Red Cross repeatedly reminded the States involved in the Kuwait crisis of 


their legal obligations under the laws of war. The most detailed of these 
reminders was in a Memorandum on the Applicability of International 

242 Protection of the Environment During Armed Conflict 

Humanitarian Law, sent to the 164 parties to the Geneva Conventions in 
mid-December 1990. This included the following statements: 

The following general rules are recognized as binding on any party to an armed 

— the parties to a conflict do not have an unlimited right to choose the methods and 
means of injuring the enemy; 

— a distinction must be made in all circumstances between combatants and military 
objectives on the one hand, and civilians and civilian objects on the other. It is 
forbidden to attack civilian persons or objects or to launch indiscriminate attacks; 

— all feasible precautions must be taken to avoid loss of civilian life or damage to 
civilian objects, and attacks that would cause incidental loss of life or damage which 
would be excessive in relation to the direct military advantage anticipated are 

The ICRC invites States which are not party to 1977 Protocol I to respect, in the event 
of armed conflict, the following articles of the Protocol, which stem from the basic 
principle of civilian immunity from attack: 

— Article 54: protection of objects indispensable to the survival of the civilian 

— Article 55: protection of the natural environment; 


— Article 56: protection of works and installations containing dangerous forces. 

This, and other ICRC statements, could be criticized, especially for their 
emphasis on Additional Protocol I 1977, not technically in force in this conflict. 
Certain other principles and rules (for example the prohibition of wanton 
destruction in Geneva Convention IV, 1949) might have provided a legally sounder 
and politically more acceptable basis for protection of the environment. 

In a press release issued on 1 February 1991, over ten days after the major Iraqi 
oil spills into the Gulf had begun, the ICRC issued another warning against 
environmental destruction: 

The right to choose methods or means of warfare is not unlimited. Weapons having 
indiscriminate effects and those likely to cause disproportionate suffering and 


damage to the environment are prohibited. 

D. The Problem of Iraqi Compliance 

A central problem with the application of the law was that Iraq tried to escape 
its obligations. After 2 August 1990, when the ICRC was seeking to carry out 

Roberts 243 

humanitarian activities in Kuwait, the Iraqi authorities denied that the conflict 
was an international one. Various ICRC efforts in autumn 1990 to get Iraq to accept 
its obligations under the Geneva Conventions were unsuccessful. After the 
beginning of Operation Desert Storm in January 1991, the definition of the 
hostilities as international does not appear to have been contested by any party, 
but Iraq was still not forthcoming about its legal obligations. It only began to accept 
them (for example, in relation to prisoners of war) around the time of the liberation 
of Kuwait and cease-fire at the end of February 1991. 


Before war actually broke out on the night of 16-17 January 1991, there was 
more than adequate warning of possible environmental damage in the event of a 
war over Kuwait. Iraq consistently threatened to set fire to the oilfields. On 23 
September 1990, Saddam Hussein said in a statement that if there was a war, 
Iraq would strike at the oilfields of the Middle East and Israel. On 23 
December, in immediate response to tough comments in Cairo by the U.S. 
Secretary of Defense, Richard Cheney, the Iraqi Defense Minister said in 
Baghdad: "Cheney and his aides will see how the land will burn under their 
feet not only in Iraq but ... also in Eastern Saudi Arabia, where the Saudi 


fighters will also feel the land burn." 

These Iraqi statements, like the threats to use hostages as human shields, appear 


to have further solidified international opinion against Iraq. To the extent that 
this is so, it confirms the complexity and importance of the links between jus in 
hello andyws ad helium. 

The scope of the potential environmental threat of a war over Kuwait was 
heavily publicized in the weeks before the war, but mainly by those arguing that 
war should be avoided altogether. King Hussein of Jordan gave such a warning at 
the Second World Climate Conference in Geneva in November 1990. Similarly, at 
a symposium of scientists held in London on 2 January 1991 it was suggested that 
a large proportion of the oil wells had been mined and might be ignited by the 
Iraqis; that the resulting fnes might burn up to 3 million barrels of crude oil a day; 
and that oil spilt from damaged wells and pipelines would flow into the Gulf, 
causing a spill "10 to 100 times the size of the Valdez disaster." (It was apparently 
assumed that the large spill envisaged would happen as a by-product of general 
damage to wells, rather than as a result of deliberate Iraqi policy.) Some, including 
Dr. Abdullah Toukan, chief scientific adviser to King Hussein of Jordan, argued 
that a war in the Gulf would lead to a "global environmental catastrophe," 
including a "mini nuclear winter." Dr. John Cox, calling for a computer simulation 
(and accepting that it might show that "my fears are groundless") said of the 
possible effect on the Middle East climate: "We must not wait until six months 
after the fires are burning, and we see 500 million people starving as a result of 

244 Protection of the Environment During Armed Conflict 

climate changes, then have scientists asking what caused it all." He also suggested 
that smoke from oil fires could scavenge ozone in the stratosphere, causing an 
ozone hole over the Indian sub-continent. However, at least one speaker at the 
symposium, Basil Butler, a managing director of BP, challenged claims that the 
war would trigger a climate change which would dry up the monsoons in Asia, 
leaving a billion people to starve. He did not deny that there would be serious local 
problems: "We do have a very major problem on our hands to deal with well fires 


in Kuwait if the wells are mined and the heads blown off by the Iraqis." 

The vast scale of the envisaged environmental catastrophe was used by many 
as an argument against resorting to war at all as a means of liberating Kuwait. 
Thus, in much of the political debate of the time, to be environmentally 
concerned was to predict global catastrophe, and to be anti-war; while those 
who supported the resort to war said little about the environmental aspects of 
a possible war. This polarization of the debate had a serious consequence. There 
was little if any public discussion of the means which might be used, if there was 
a war, to dissuade Iraq from engaging in environmentally destructive acts; and 
little if any reference to the laws of war as one possible basis for seeking limitations 
of this kind. 

In the weeks before and after the outbreak of war in January 1991, the British 
Government examined the possible environmental impact of massive oil fires. On 
4 January, the Energy Secretary, John Wakeham, said: 

Oil fires of this magnitude would certainly be unpleasant, environmentally harmful 
and wasteful of energy resources, and if there were a large number it might take over 
six months to put them all out. But suggestions of a global environmental disaster 


are entirely misplaced. 

In the last days before the war, President Bush tried to impress upon President 
Hussein the key importance of certain limits. In a letter which Iraqi Foreign 
Minister Tariq Aziz refused to accept from Secretary of State James Baker at 
Geneva on Wednesday 9 January 1991, President Bush wrote: 

... the United States will not tolerate the use of chemical or biological weapons, 
support of any kind for terrorist actions, or the destruction of Kuwait's oil fields and 
installations. Further, you will be held directly responsible for terrorist actions 
against any member of the Coalition. The American people would demand the 
strongest possible response. You and your country will pay a terrible price if you 


order unconscionable acts of this sort. 


In the long period between the Iraqi occupation of Kuwait and the beginning 
of the war, the U.N. Security Council was unprecedentedly active; but it did 

Roberts 245 

relatively little to focus attention on the need to respect laws of war limitations in 
the event of an armed conflict; and it did even less about threats to the 
environment. Security Council Resolution 670 of 25 September 1990, which was 
basically about sanctions on air transport to Iraq, contained at the end a paragraph 
in which the Council reaffirmed: 

that the Fourth Geneva Convention applies to Kuwait and that as a High Contracting 
Party to the Convention Iraq is bound to comply fully with all its terms and in 
particular is liable under the Convention in respect of the grave breaches committed 
by it, as are individuals who commit or order the commission of grave breaches. 

Clearly this related primarily to the occupation of Kuwait, and did not 
specifically address the matter of limitations which would apply in any war for the 
liberation of Kuwait. 

Security Council Resolution 674 of 29 October 1990 was the most detailed on 
humanitarian law issues. After repeating the above-quoted passage from 
Resolution 670, it demanded that Iraq desist from taking third-State nationals 
hostage, from mistreatment of inhabitants and third-State nationals in Kuwait, 
and from any other actions in violation, inter alia, of Geneva Convention IV. It 
then indicated that certain violations might be punished: it invited "States to 
collate substantiated information in their possession or submitted to them on the 
grave breaches by Iraq . . . and to make this information available to the Security 
Council;" and it reminded Iraq that it was liable for any loss, damage or injury 
arising in regard to Kuwait and third States, referring also to the question of 
financial compensation. However, for all its merits, Resolution 674 did not spell 
out the principles or rules which would apply in a possible war. 

The famous Security Council decision authorizing the use of force — 
Resolution 678 of 29 November 1990 — said nothing at all about laws of war limits; 
it was the last resolution before the outbreak of war. 

In the circumstances of the time, even the obvious could benefit from 
reaffirmation, and in addition some matters did need clarification and 
interpretation. In view of Iraq's cavalier attitude to basic rules, as evidenced for 
example in the weeks and months after 2 August 1990 by the seizure of hostages 
and the threats to destroy the oil installations, it was clear that any reminders to 
Iraqi commanders about limitations in war might need to come from outside. New 
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. Further, in view of the lack 
of formal applicability of Additional Protocol I in this conflict, it could have been 
helpful if the U.N. had clarified whether at least some of its underlying principles 
and basic rules, such as those contained in Articles 35 and 48, were to be applied. 
The need to harmonize practices among the many members of the Coalition, and 

246 Protection of the Environment During Armed Conflict 

to be seen to have done so, heightened the case for some U.N. statement on such 
matters. Fears of U.S. sensitivities about Additional Protocol I might have 
inhibited some from raising this issue. However, since the U.S. Government had 
itself many years earlier conceded that the U.S. non-ratification of the Additional 
Protocol left a gap, it would have been reasonable for the U.N. to have attempted, 
at least partially, to fill that gap. Although there were precedents from earlier crises 
for action in this field being taken by the General Assembly, and by the 
Secretary-General, in 1990-91 the obvious forum for such a role would have been 
the Security Council. 

IX. THE 1991 WAR 

A. Initial Coalition Policy Statements 

After the start of Operation Desert Storm on the night of 16-17 January 1991, 
statements by some Coalition governments placed an, albeit limited, emphasis on 
laws of war issues; but these were mostly of a rather general character, and 
contained few specific references to the protection of the environment or the 
avoidance of wanton destruction. 

The initial address to the nation by President Bush on the evening of 16 January 
did specify that targets which U.S. forces were attacking were military in character, 

but the speech contained no other indication of the limits applicable to the 

belligerents under the laws of war. 

In remarks made on 16-18 January, Richard Cheney, U.S. Secretary of Defense, 
and Lt. Gen. Chuck Horner, Commander of the U.S. Central Command Air 
Forces, particularly stressed that the bombing campaign would avoid civilian 
objects and religious centers. Some of their words on this point echoed the words 
of Additional Protocol I, Article 48, "the Basic Rule," cited above. 

During the war, the U.S. armed forces appear to have placed much emphasis 
on operating within established legal limits. General Colin Powell, Chairman of 
the Joint Chiefs of Staff during the war, said subsequently: "Decisions were 

impacted by legal considerations at every level. Lawyers proved invaluable in the 

decision-making process." 

There appear to have been some official American attempts to gag discussion 

of the environmental effects of the war. On 25 January 1991, researchers at 

Lawrence Livermore National Laboratory received a memorandum which read 

in part: 

DOE [Department of Energy] Headquarters Public Affairs has requested that all 
DOE facilities and contractors immediately discontinue any further discussion of 
war-related research and issues with the media until further notice. The extent of 
what we are authorized to say about environmental impacts of fires/oil spills in the 
Middle East follows: 

Roberts 247 

"Most independent studies and experts suggest that the catastrophic 
predictions in some recent news reports are exaggerated. We are currently 
reviewing the matter, but these predictions remain speculative and do not 
warrant any further comment at this time." 

The British Government, at the start of Operaiton Desert Storm, stressed that 
the Coalition forces were operating within a framework of legal and moral 
restraint. Prime Minister John Major told the House of Commons on 17 January: 

I also confirm that the instructions that have been given to all the allied pilots are to 
minimise civilian casualties wherever that is possible, and the targets that they have 
been instructed to attack are, without exception, military targets or targets of strategic 

At the beginning of the war there do not appear to have been any British 
Government statements of a general character about the laws of war as they bear 
on the environment, but such statements were made in February (see below) in 
the context of condemnations of Iraqi conduct. 

B. Iraqi Attacks on Oil Facilities 

During the war, many military actions on both sides involved oil targets but 
were not necessarily seen as war crimes. The Coalition made attempts (occasionally 
breached) to avoid targeting tankers and commercial oil facilities in Kuwait; but 
oil depots and refineries in Iraq were viewed as military targets and hit by Coalition 
bombing. This brief survey concentrates on Iraqi actions, especially in occupied 

Soon after the beginning of Operation Desert Storm, the Iraqi forces launched 
an attack against the Khafji oil storage depot in northern Saudi Arabia, setting it 
on fire, and reportedly causing leakage of oil into the Gulf. Iraqi forces also caused 
a much larger slick, reportedly from as early as 19 January, by pumping huge 
quantities of oil into the Gulf from the Sea Island Terminal, a pumping station 
for the Mina al Ahmadi crude oil tank farm in Kuwait. This spill was reportedly 
reduced by Coalition forces accidentally setting the terminal ablaze on the night 
of 25-6 January; and it was eventually brought under partial control by Coalition 
bombing of the pumping stations at Mina al Ahmadi on 26 January. 

At about the same time, there were also huge spills into the Gulf — again, 
apparently deliberate Iraqi acts — from Iraqi tankers moored at Mina al Ahmadi. 
By 24 January, when air reconnaissance in the area was conducted, these ships 


were apparently empty, or almost empty, of oil. 

The total amount of oil spilled into the Gulf almost certainly constituted the 
largest oil spill ever. Estimates at the time of the total amount of oil ranged up to 


eleven million or more barrels of crude. By mid-February, reports of the scale, 
movement, and likely damage of the oil slicks were slightly less apocalyptic than 

248 Protection of the Environment During Armed Conflict 

earlier. The true size of the spill was probably between six and nine million 


The total damage done by the slicks was considerable. By May, over 400 

kilometres of the Saudi coast, as well as the southern Kuwaiti coast, was affected. 

There was damage to coastal marshlands, to wildlife (over 30,000 marine birds 


killed), to coastal flora, to fishing, and to offshore oil operations. 

The massive, indeed in its scale unprecedented, destruction of the oilfields of 
Kuwait was the most efficiently conducted Iraqi action since the start of the war. 
It had been carefully prepared. A small group of oil installations in southern 

Kuwait was set on fire by the Iraqi forces during the first week of the war, evidently 

as a test. Then on 21-22 February, just before the Coalition ground offensive 

began on 23-24 February, Iraq started the program of systematic destruction of 

Kuwaiti oil installations, casting a huge pall of smoke across the country. Before 

the flight of Iraqi forces from Kuwait ended on 28 February, they blew up or 

damaged virtually all the oil installations in Kuwait. 613 wells were set on fire, and 

175 others left gushing or damaged. As to the rate of burn, estimates ranged 


between over two and six million barrels per day. 

Most of these Iraqi actions regarding oil seem to have had little military 
rationale. Kuwait later claimed that the environmental devastation was not the 
result of military conflict, but "the product of a deliberate act that was planned in 

the very first days of the brutal Iraqi occupation of Kuwait." Some have 

speculated that the oil slicks in the Gulf were intended to hamper possible efforts 

at amphibious landings in Kuwait: however, quite apart from the doubtfully 

relevant fact that (as emerged later) the Coalition's preparations for such landings 

were a ruse, it is debatable whether, given their location, the slicks would have 

seriously hampered any amphibious landings. Oil damage to ships, especially to 

their cooling systems, could have been serious, but the Coalition powers managed 


by various means to avoid it. As to the burning of the oil wells, there is no 
evidence that Iraq actually intended to achieve a military effect by this means. 
However, the huge smoke clouds caused by the fires, and poor weather during the 
last week of the war, did significantly impede air operations over Kuwait, 
including reconnaissance and ground attack. As the Pentagon interim report (but 
not the final one) put it: 

The operational impact of oil fires and smoke on the Coalition forces attacking 
Kuwait City was mixed. Air support was severely hampered. As direction and 
strength shifted, surface winds initially complicated then ultimately favored 


Coalition forces by blowing from south to north during the ground offensive. 

Thus, while Iraq's releasing of oil and destruction of oilfields had some marginal 
military effect, or at least potential, there is no evidence that that was the purpose. 
The Pentagon expressed puzzlement about the purpose. Almost certainly, Iraq's 

Roberts 249 

motive was less tactical than punitive: to do damage to Kuwait, hurt its adversary 
and neighbor, and diminish the value of the prize for which the war was supposedly 
being fought. The fact that only Kuwaiti wells were set alight, and not those on 
the Iraqi side of the border, confirms this conclusion; as does the fact that explosive 
charges were used, rather than simple ignition with opened valves. 

The Iraqi environmental destruction was heavily criticized by Coalition 
leaders. Thus, on 25 January, as the extent of the Iraqi oil spill into the Gulf was 
attracting notice, U.S. officials said that the world had never previously had to deal 
with a deliberate and malicious spill. President Bush said: 

Saddam Hussein continues to amaze the world. First, he uses these Scud missiles 
that have no military value whatsoever. Then, he uses the lives of prisoners of war, 
parading them and threatening to use them as shields; obviously, they have been 
brutalized. And now he resorts to enormous environmental damage in terms of 
letting loose a lot of oil — no military advantage to him whatsoever in this. It is not 


going to help him at all... I mean, he clearly is outraging the world. 

Richard Cheney accused Saddam Hussein of environmental terrorism, adding: 
"It is one more piece of evidence, if any more were needed, about the nature of the 


man himself. He is best described as an international outlaw." On 28 January, 
Michael Heseltine, the British Secretary of State for the Environment, said in a 
long statement in the House of Commons: "Words are inadequate to condemn the 
callousness and irresponsibility of the action of Saddam Hussein in deliberately 


unleashing this environmental catastrophe."' On 22 February he said in a written 
answer: "Iraqi action has already led to damage to the environment as indicated 
by the deliberate release of oil into the Gulf. The Government together with the 
countries of the OECD has condemned this action as a violation of international 
law and a crime against the environment." On the environmental impact of 
operations by the forces seeking to implement U.N. resolutions, he said: 
"Environmental factors are taken into account by the Coalition forces as far as 
possible in the planning and conduct of military operations as part of the policy 
of ensuring that collateral damage from those operations is minimised." 

On 22 February, as the Iraqis began destroying the Kuwaiti oil installations, 
and on the eve of the Coalition land offensive, President Bush said: "He is 
wantonly setting fire to and destroying the oil wells, the oil tanks, the export 
terminals, and other installations of that small country." On the same day, in 
Riyadh, Brigadier General Richard Neal, Central Command's Deputy Director of 
Operations, commented: "It looks like he's carrying out what he said on several 
occasions. We've had a difficult time trying to figure out the motivation for a lot 
of his actions." 102 

The destruction of the oil installations in Kuwait proved to be on the massive 
scale which some had forecast, the rate of burn-off was actually higher than many 

250 Protection of the Environment During Armed Conflict 

had anticipated, and the consequences were serious. The flood of oil from the wells 
formed lakes and reportedly affected aquifers. The fires involved huge waste of a 
valuable natural resource. They spewed many gases, including the 'greenhouse' 
gas carbon dioxide (perhaps 3 per cent of the world's total annual fossil fuel 
emissions), into the atmosphere. Heavy metal-laden soot particles and aromatic 
hydrocarbons contributed to the atmospheric pollution. In Kuwait, in the months 
after the war, the heavy atmospheric pollution caused an increase in respiratory 

1 03 

illnesses, a lowering of regional temperatures, and much damage to the land. 
The smoke was widely reported as having adverse effects in neighboring countries, 
including Iran and Saudi Arabia, and in the waters of the Gulf. There were reports 
of black rain in Turkey, Iran and the Himalayas. However, the harmful effects of 
the oil fires were mainly regional, and were nothing like the global disaster which 
some had forecast. Soot from the fires does not appear to have risen high enough 
to cause the global environmental effects which some had feared. There was no 
demonstrable effect on the climate outside the Persian Gulf region, and no 
demonstrable influence on the Indian monsoon. 

The Iraqi actions — the discharge of oil into the Gulf, and the burning of the 
Kuwaiti oilfields — were plainly contrary to the laws of war. There has been general 
agreement that they violated Article 23 (g) of the 1907 Hague Regulations. It is 
also widely accepted that they violated Article 147 of Geneva Convention IV; and 
also Article 53, which is in the section on occupied territories. Whether the Iraqi 
actions would have constituted violations of two conventions which mention the 
environment — the 1977 ENMOD Convention, and Additional Protocol 
I — neither of which was in force in the 1991 Gulf War, is a more contentious 

As regards ENMOD, a key question would be: was Iraq, to use the language of 
Article II, "changing — through the deliberate manipulation of natural processes 
— the dynamics, composition or structure of the Earth, including its biota, 
lithosphere, hydrosphere and atmosphere, or of outer space"? It might well be 
asserted that this was, rather, a case of the deliberate abuse of man-made 
installations and artificial processes: of damage to the environment, but not 
necessarily damage by the forces of the environment. The terms of ENMOD, as 
well as the fact that it was not in force in this war, suggest that it had little or no 
relevance to the Iraqi actions. 

As regards Articles 35 and 55 of Additional Protocol I, there is perhaps more 
room for the view that Iraqi actions would have violated these environmental 
provisions. In its July 1991 Interim Report to Congress, the Pentagon stated that 
Iraq had committed extensive and premeditated war crimes, which included 
"unnecessary destruction, as evidenced by the release of oil into the Persian Gulf 
and the sabotage of hundreds of Kuwaiti oil wells." It stated that these actions 
"could implicate a number of customary and conventional international law 

Roberts 251 

principles," including from the 1907 Hague Regulations and 1949 Geneva 
Convention IV, and further mentioned in its list Articles 35 and 55 of Additional 
Protocol I. However, the Pentagon's April 1992 Final Report, while continuing 
to assert the illegality of Iraqi actions, was much more dismissive of the Protocol's 
relevance, especially in the following: 

Even had Protocol I been in force, there were questions as to whether the Iraqi actions 
would have violated its environmental provisions. During that treaty's negotiation, 
there was general agreement that one of its criteria for determining whether a 
violation had taken place ("long-term") was measured in decades. It is not clear the 
damage Iraq caused, while severe in the layman's sense of the term, would meet the 
technical-legal use of that term in Protocol I. The prohibitions on damage to the 
environment contained in Protocol I were not intended to prohibit battlefield 
damage caused by conventional operations and, in all likelihood, would not apply to 
Iraq's actions in the Persian Gulf War. 

This passage is likely to provoke criticism, especially for its characterization 
of Iraqi actions and their consequences. Yet the fact that there is scope for debate 
about the relevance of the environmental provisions of Additional Protocol I (and 
also of ENMOD) confirms the importance of earlier provisions, including from 
the 1907 Hague Regulations and 1949 Geneva Convention IV: these were a key 
basis for judging Iraqi actions. 

C. Coalition Military Actions 

Many Coalition actions in the crisis had environmental consequences, even if 
they were on a lesser scale than those caused by their adversaries. Further, some 
actions which they did not take could have affected the environment. In the 
months before the war, when U.N. Security Council sanctions were imposed on 
Iraq, there were some proposals that Iraq might be defeated by stopping the flow 
of the Tigris and Euphrates (both of which originate in Turkey): these were not 
implemented, for reasons that can be guessed but are not definitely known. 

Of all the actions which were taken by the Coalition, that which has attracted 
most attention as regards environmental consequences is the bombing of Iraq. 
Many objects which were attacked, such as oil storage sites, power stations, and 
warehouses, provided for the needs of both the armed forces and the civilian 
population. It must be doubtful whether it is possible to embark on a policy of 
damaging the military function of such targets without at the same time doing 
harm to the civilian population and/or the environment; and so it proved in this 
case. In March 1991, in the immediate aftermath of the war, a controversial report 
submitted to the United Nations by Martti Ahtisaari, the Finnish head of a special 
investigative commission, deplored the devastation of Iraq. It noted the 
destruction of non-military objectives in Iraq — for example, a seed warehouse, and 
a plant producing veterinary vaccines — and it said that "all electrically operated 

252 Protection of the Environment During Armed Conflict 

installations have ceased to function," causing shortages and contamination of the 

water supply. The damage to facilities serving Iraqi civilian life was serious, and 

was notably criticized in a report by Middle East Watch. Some other reports in 

the aftermath of the war were less negative. In the present state of the law, a 

verdict that the bombing policy in general was illegal would be hard to sustain. 

However, Oscar Schachter's judgement is worth noting: "The 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." 112 

The coalition attacks on nuclear facilities in Iraq raised worries that there might 

be substantial release of radioactive materials, causing local environmental 

damage. Because, as is now known, Iraq had removed its nuclear materials and 

buried them off-site, such release appears to have been minor. The question 

remains, whether attacks on facilities containing nuclear materials would be 

contrary to the laws of war. There appears to be no absolute answer. The problem 

comes closest to being addressed in Additional Protocol I, Article 56, on 'Works 

and installations containing dangerous forces'. However, this is of limited 

relevance because, as noted above, (a) it is not accepted as part of customary law; 

and (b) it deals with 'nuclear electrical generating stations', but does not appear to 

address the types of nuclear installation actually attacked in Iraq. Even if the 

targets had been nuclear electrical generating stations, attack is only prohibited 

(and then incompletely) "if such attack may cause the release of dangerous forces 

and consequent severe losses among the civilian population." If attack does take 

place, "all practical precautions shall be taken to avoid the release of the dangerous 

forces." These formulae leave much to the judgement and skill of the attackers; 

and confirm that there are, inevitably, many loose ends left by the negotiators who 

concluded Additional Protocol I. Clearly, attacks on nuclear installations risk very 

serious consequences, and require very special reasons and precautions; but in the 

• •113 
present state of the law it cannot be said that they are always prohibited. 

A strong defense of the Coalition bombing policy generally can be made along 

the lines that it was aimed at targets which had some military relevance, was 

conducted with unusual precision, and any damage which was outside the proper 

military purposes of the war was accidental or collateral in character. These points 

were emphasized by Tom King MP, Secretary of State for Defence, in evidence to 

the Defence Committee of the House of Commons on 6 March 1991. He stated 

categorically that water pumping plants in Baghdad had not been a target, though 

their operations had inevitably suffered from the attacks on electrical 

power-generating stations; and he said that nuclear reactors were only attacked 

"after the most detailed planning to minimise the risk of any radiation spreading 

outside the site." The account of the war in the British Defense white paper 

makes the same point: 

Roberts 253 

There was evidence too that Iraq had been seeking to develop nuclear and biological 
weapons. The allies therefore placed great importance on deterring Iraq from using 
any such weapons. Alliance leaders made it clear they would take the gravest view of 
any Iraqi use of weapons of mass destruction. Production and development facilities 
were attacked with precision-guided munitions using tactics designed to minimise 
any risk of contamination outside the sites. 

Similarly, the Pentagon's reports to the U.S. Congress in July 1991 and April 
1992 say of the bombing campaign that aircraft and munitions were carefully 
selected to achieve "the least risk to civilian objects and the civilian population." 

Taking the Coalition bombing campaign overall, and making full allowance for 
the inadequate state of current information about its effects, it does appear that 
such Coalition actions as damaged the environment were less wanton and 
gratuitous than the Iraqi oil crimes in Kuwait, and that some, but only some, 
significant efforts were made to avoid or reduce certain kinds of environmental 
damage. However, the allied actions serve as an uncomfortable reminder that 
prohibiting or reducing the environmental damage of war is not a simple task. 

D. Remnants of War 

The dangerous effects of remnants of war have long been a cause of concern, 

including to the United Nations. Such acts as the laying of mines without 

keeping careful plans violate basic principles of the laws of war on several grounds. 

They pose a serious risk to innocent human life, even after the end of a war, and 

they may degrade the environment in a lasting way. Moreover, attempts to make 

the land environment safe again are liable to cost a great deal of money, human 

effort, and lives. 

The 1991 Gulf War left the land littered with the remnants of war. There were 

trenches of oil on the frontier with Saudi Arabia, prepared by Iraqi forces to 

frustrate a Coalition invasion; and pools of oil near the destroyed oil installations. 

Iraqi forces reportedly laid more than 500,000 mines in Kuwait, and abandoned 

quantities of ammunition. As to the Coalition, as many as one third of its bombs 

and projectiles reportedly failed to detonate, the soft sand and the use of stockpiled 

or experimental weapons increasing the failure rate; and many U.S. anti-personnel 

submunitions, dropped into the battle area, remained a lethal hazard 

1 18 

afterwards. Substantial quantities of depleted uranium, which is toxic and 
mildly radioactive, remained littered around the battlefield; it had been used for 
armor piercing both in tank ammunition, and in bullets fired from aircraft. Its use 
caused concern both because of possible health consequences for soldiers exposed 
to it during the war, and because the remnants may constitute a health hazard in 

1 19 

post-war Kuwait and Iraq. 

Some less-publicized aspects of environmental damage were potentially serious. 
According to some accounts, the movements of armored vehicles over the desert 

254 Protection of the Environment During Armed Conflict 

landscape of Saudi Arabia, Kuwait and Iraq in the months of crisis and war left 
the desert surface looser than before, and may have increased the likelihood of 
severe sandstorms. 

E. 'Gulf War Syndrome' 

After the war, a number of people who had served in the war zone developed a 
variety of symptoms, some of which came to be grouped under one heading as 
"Gulf War syndrome." Various possible causes were mentioned, including some 
of the antidotes which had been administered (in injection and pill form) to reduce 
vulnerability to possible Iraqi use of chemical and biological weapons. 
Environmental factors were also mentioned as one possible type of explanation of 
at least some of the symptoms; it was suggested that the servicemen concerned 
had been exposed to dangerous chemicals, including possibly remnants of certain 
Iraqi chemical weapons deployed in Kuwait. Law suits and detailed investigations 
were undertaken in both the U.S. and U.K. On 27 July 1995 the Royal College of 
Physicians gave its official backing for further investigation into "Gulf War 
syndrome," the alleged war-related illness affecting more than 600 U.K. veterans 
(out of a total U.K. contingent of about 51,000) who served in the 1991 conflict. 
However, at the same time, the College concluded, on the basis of a clinical 
assessment of the medical checks on 200 veterans completed by the Ministry of 

Defence, that there was no single cause for the variety of illnesses suffered by the 

servicemen and women who had been examined. 



During and after the war, the tackling of major environmental hazards in the 
whole area of the conflict involved difficult problems of diagnosis, prescription, 
organization and international cooperation. 

There was much action to limit the effects of the oil spills in the Gulf. During 
the war, the U.S. Government (apart from its successful bombing on 26 January) 
took some effective action on an inter-agency basis. A huge containment and 
recovery effort was made by Saudi Arabia's Meteorology and Environmental 
Protection Administration and by the International Maritime Organization. 
Under auspices of the U.N. Environment Programme and the Regional 
Organization for the Protection of the Marine Environment (ROPME), a special 

oil clean-up ship, iht Ali-Wasit, recovered 500,000 barrels of oil from the Gulf. 

Altogether, some two million barrels of oil were recovered. A serious threat to 

the world's largest desalination plant, at al Jubayl in Saudi Arabia, was effectively 

countered by booms, nets and skimmers. Efforts were concentrated on protecting 

industrial and desalination plants, rather than on environmentally sensitive areas. 

There was much dispute over appropriate methods of tackling this and similar 

Roberts 255 


disasters. Although a thick tarry layer remained in the sands of the Saudi coast, 
the waters and wildlife of the Gulf made an impressive recovery, confirming to 


some observers the remarkable capacity of nature to survive disasters. 

As to the oil fires in Kuwait, there was debate about the adequacy of preparations 

during the war, by either the U.S. Government or the Kuwaiti Government in 

exile, to prepare for putting them out; and afterwards, the U.S. administration 

seemed to down-play the impact of the fires — perhaps because it wanted neither 

to seem obsessed about oil, nor to raise any doubts about the wisdom of a war which 

left such a pall. After a slow start, work on controlling the oil fires gathered 

pace: the last fire was extinguished on 6 November 1991. There were inevitably 

missed opportunities, and many lessons to be learned from this episode so far as 

future oil fire disasters are concerned. In 1 992 there was criticism of the Kuwaiti 

authorities for further damaging the wells by rushing to bring them back on stream 

before they had time to recover. 

Numerous other aspects of the clean-up operations posed problems. In Kuwait, 
huge quantities of oil remained on the surface even after the fires were put out; 
some of this was effectively recovered. The most serious problem was unexploded 
weapons, including mines. In less than a year after the war, explosive ordnance 
reportedly killed or wounded some 1,250 civilians, and claimed fifty lives of 
demolition specialists. 

International bodies played a significant part in the clean-up efforts after the 
war. Under the auspices of the U.N. Environment Program (UNEP), a Plan of 
Action was drawn up to address the consequences of the conflict on the marine, 
coastal, atmospheric and terrestrial environments, and also the subject of 
hazardous waste in the region. This was adopted for implementation by the 
Council of ROPME on 16-17 October 1991. UNEP continued to play an important 
part in coordinating the efforts of the U.N. and other international organizations 
to assess the effects of the conflict, and to mobilize funds for assessment and 


rehabilitation programes. 

The aftermath of the war confirmed the need for governments and armed forces 
to take much more seriously the whole problem of limiting the effect of war on 
the environment, and putting right the damage that is done. Some problems of a 
very widespread character, not exclusively linked to the 1991 Gulf War, were 
addressed. For example, on 21 May 1993, the UNEP Governing Council approved 
a decision asking governments to establish a national environmental policy for the 
military sector, and requesting the Executive Director to report on the application 
of environmental norms for the treatment and disposal of hazardous wastes by 


military establishments. 

256 Protection of the Environment During Armed Conflict 

A. The Question of Iraqi Responsibility 

After the war, the U.N. Security Council held Iraq responsible for the damage 


caused by the invasion and occupation of Kuwait. Resolution 686 of 2 March 
1991 demanded that Iraq "accept in principle its liability under international law 
for any loss, damage, or injury arising in regard to Kuwait and third States, and 
their nationals and corporations, as a result of the invasion and illegal occupation 
of Kuwait by Iraq." It also required Iraq to "provide all information and assistance 
in identifying Iraqi mines, booby traps and other explosives as well as any chemical 

and biological weapons and material in Kuwait " 

Resolution 687 of 3 April 1991 — the longest ever passed by the Security 
Council — contained many provisions relevant to the environment. It reaffirmed 
that Iraq "is liable under international law for any direct loss, damage, including 
environmental damage and the depletion of natural resources, or injury to foreign 
governments, nationals and corporations, as a result of Iraq's unlawful invasion 
and occupation of Kuwait." Further, stringent measures of disarmament — 
especially in the chemical, biological, missile, and nuclear fields — were imposed 
on Iraq by that and subsequent resolutions. Iraq was invited to affirm 
unconditionally its existing obligations under certain treaties, and to ratify the 

1972 Biological Weapons Convention. 

Despite the above-mentioned resolutions, after the cease-fire almost nothing 

was heard from the Coalition governments on the subject of the major war crimes, 

and the personal responsibility of Saddam Hussein and colleagues for them. The 

Security Council resolutions were silent on the subject. Some Iraqis who had been 

caught in Kuwait at the end of the war were tried there in summer 1991 for various 

offenses in connection with the occupation, but the larger issue of the 

responsibility of the top Iraqi leadership was not addressed by the U.N. The 

question of Iraqi war crimes obviously embraces the whole range of offenses by 

Iraq, and not just those relating to the environment. However, the fact that major 

and wanton environmental damage was apparently going unpunished (except in 

the broader context of the attempt to secure reparations and compensation from 

Iraq via the U.N. Compensation Commission set up in 1991) was serious: an 

opportunity to spell out, in a clear and forceful manner, the criminal nature of 

certain Iraqi actions, including wanton damage to the environment, was missed. 

The Security Council's failure since the war to address the question of war crimes 

is all the more striking when the explicit reference to such crimes in Resolution 

674 of 29 October 1990 is recalled.The reasons why the war crimes issue was not 

pursued are serious and need to be understood. Six stand out. First, there was wide 

agreement in the months before January 1991 that if there was to be a war for the 

liberation of Kuwait, it had to be a limited war for clearly limited and defined 

Roberts 257 

objectives; that being so, the capturing of Saddam Hussein and colleagues, 
however criminal their acts, would not have easily fitted into the Coalition scheme 
of things. Second, the Iraqi leaders would have been difficult to arrest even if the 
Coalition action had been more offensive. Third, there were obvious difficulties 
in demanding Saddam Hussein's arrest as a war criminal at the same time as 
negotiating cease-fire terms with him; and in early March the cease-fire seemed 
more important. Fourth, there was nervousness in Washington, London, and 
other Coalition capitals about pressing any proposal for trials if opinion in 
countries in the region did not want to go down this road. Fifth, there was a 
question as to whether Iraqi actions before and after this war, including against 
Kurds and Marsh Arabs, should also be included. And sixth, in many Coalition 

capitals there was the hope, publicly expressed from the beginning of the war, that 

some kind of coup d'etat or revolution within Iraq would solve the problem. 

However, as a minimum, it would have been possible for an authoritative 
statement to be made promptly, to the effect that major war crimes had occurred, 
involving inter alia grave breaches of the Geneva Conventions; that there was 
personal responsibility for these crimes; and that under the Geneva Conventions 
any State was entitled to prosecute. Such a statement would at least have had the 
effect of making it clear, at a time when interest was high, that Saddam Hussein 
and colleagues would be exposed to risk of prosecution if they set foot in other 
countries. It would also have given a little more consistency to the otherwise 
confusing positions taken by the leading Coalition powers and the Security 

The United States did eventually, in a war crimes report prepared under the 
auspices of the Secretary of the Army in January 1992 and issued by the U.N. in 
March 1993, put on the record a clear statement about Iraqi war crimes. This 
report, which was not widely noted at the time or subsequently, includes some 
references to various Iraqi actions which had a damaging effect on the 
environment, and treats them as violations of 1907 Hague Convention IV and of 


1949 Geneva Convention IV. 

B. Development of International Law 

The 1991 Gulf War, like many previous wars, led to much discussion as to 
whether, and if so how, international law might be developed to address more 
effectively the problems it had exposed. In particular, there was extensive 
consideration of the protection of the environment in warfare. 

It was widely recognized that one war is too narrow a frame of reference for such 
discussions. After all, environmental damage in war can take many forms; and 
non-international armed conflicts must be taken into account. But the war did 
point to many general problems which needed to be addressed — for example, 
securing recognition and immunity (whether on the model of the ICRC, or civil 

258 Protection of the Environment During Armed Conflict 

defense or other relief workers) for individuals and organizations concerned with 
monitoring and controlling environmental damage in peacetime or wartime — 
from measuring air pollution to rescuing injured wildlife. 

Some of the immediate post-war discussion was centered on proposals for a new 
international treaty. The idea of a possible 'fifth Geneva Convention', to address 
directly the issue of environmental damage in war, was tentatively aired. 
However, the weight of opinion among governments and international lawyers 
favored proceeding by more modest steps, including fuller ratification, exposition, 
implementation, and development of existing law. Resolutions in various bodies 
— being a way of enunciating general principles, and relating them to particular 
problems as they arise — were advocated as one means of assisting such 

After the war, some saw Additional Protocol I as centrally important so far as 
the protection of the environment in war is concerned. For example, a consultation 
in Munich in December 1991, mainly of environmental lawyers, began its final 
statement with the following recommendations: 

1. The Experts Group strongly urged universal acceptance of existing international 
legal instruments, in particular of the 1977 Protocol ... 

2. The Group observed that the current recognition that the environment itself is an 
object of legal protection in times of armed conflict implies that traditional 
perceptions of proportionality and military necessity have become obsolete. 

Although the Munich meeting also highlighted the importance of customary 
norms prohibiting devastation, it is doubtful whether it was wise to put such great 
emphasis on Additional Protocol I, and to go so far in rejecting certain other 
aspects of the laws of war, including traditional perceptions of proportionality. 

The International Committee of the Red Cross was, not surprisingly, a main 
vehicle for taking forward the question of the effect of war on the environment. 
The ICRC gave consideration to this in the run-up to the XXVIth International 
Conference of the Red Cross and Red Crescent, which had been due to be held in 
Budapest in November 1991, but had to be postponed. A draft resolution for 
the conference had, like earlier ICRC pronouncements, put great and perhaps 
disproportionate emphasis on Additional Protocol I. The resolution stated, inter 
alia, that the conference: 

[CJalls on States which have not yet acceded to or ratified the international treaties 
containing provisions for the protection of the environment in time of armed conflict 
rapidly to consider becoming party thereto, [and] 

[EJncourages the ICRC, in co-operation with the organizations concerned, to examine 
the contents, limitations and possible shortcomings of the international rules for the 

Roberts 259 

protection of the environment in time of armed conflict and to make proposals in 


that respect... 

The U.N. General Assembly has supported such an approach. In December 
1991, it suggested further consideration of the matter in conjunction with the 


ICRC. The ICRC then convened a meeting of experts on the protection of the 
environment in time of armed conflict, held in Geneva in April 1992, and on 30 
June submitted an 18-page report to the U.N. General Assembly. This emphasized 
the need to observe existing law in this area, and the ICRC's continued willingness 
to address the issue. It also identified a number of issues for further research and 
action. This was one input into ongoing discussions in the Sixth Committee, 
resulting in a November 1992 resolution which was the General Assembly's most 
important pronouncement on the subject. It recognized the importance of the 1907 
Hague Convention IV and the 1949 Geneva Convention IV, as well as later 
agreements. It stated unambiguously in its preamble "that destruction of the 
environment, not justified by military necessity and carried out wantonly, is 
clearly contrary to existing international law," and then in its operational part said 
that the General Assembly: 

1. Urges States to take all measures to ensure compliance with the existing 
international law applicable to the protection of the environment in times of armed 

2. Appeals to all States that have not yet done so to consider becoming parties to the 
relevant international conventions; 

3. Urges States to take steps to incorporate the provisions of international law 
applicable to the protection of the environment into their military manuals and to 
ensure that they are effectively disseminated. 

Meanwhile, Principle 24 of the Rio Declaration of June 1992 had offered the 
anodyne formula, which was evidence of international concern but did not advance 
things significantly: 

Warfare is inherently destructive of sustainable development. States shall therefore 
respect international law providing protection for the environment in times of armed 
conflict and cooperate in its further development, as necessary. 1 

After 1992, the General Assembly continued to be seised of the protection of 
the environment in times of armed conflict, but simply as one part of the agenda 
item "U.N. Decade of International Law." It remained content to express support 
for work done under ICRC auspices. The ICRC convened two further meetings of 
experts, in January and June 1993, which led to a new report defining the content 
of existing law, identifying problems of implementation, suggesting what action 

260 Protection of the Environment During Armed Conflict 

needed to be taken, and drawing up model guidelines for military manuals. The 
General Assembly particularly supported the ICRC on this last point. 


One war is too narrow a frame of reference for making hard and fast observations 
on the perennial and multi-faceted subject of the impact of war on the 
environment. Environmentalists and lawyers may, like generals, be open to the 
accusation of always fighting the last war. Vietnam produced very different 
environmental problems, and so will future wars. Both in peace and war, 
environmental damage can take many forms; can be very hard to forecast 
beforehand and to assess afterwards; can be prevented or reduced by a bewildering 
variety of different means; and is sometimes hard to rectify once it has happened. 

However, the environmental issues raised by the 1991 Gulf War were of 
sufficient seriousness that they must form part of any attempt at overall assessment 
of how damage to the environment in war can be effectively limited. This 
statement by a Kuwaiti woman in late 1991 commands respect: "We won the 
ground war, we won the air war, but we lost the environmental war." The 1991 
Gulf War saw what were arguably the worst acts of deliberate environmental 
destruction of any war in this century. It also showed, in a more general way, how 
modern war involves a wide range of hazards to the human and natural 
environment; and how an increased level of concern with environmental issues, 
especially in Western societies, can influence public views about the legitimacy of 
certain military activities. The war, in short, saw new manifestations of problems 
relating to the environment which are likely to get more serious as societies 

A. Illegality of Certain Acts of Environmental Destruction 

In warfare, actions damaging to the environment, when associated with wanton 
destruction not justified by military necessity, are contrary to well established and 
universally binding parts of the laws of war. Prohibitions of wanton destruction 
in major treaties, including the 1907 Hague Regulations and the 1949 Geneva 
Conventions, have a strong bearing on the environment, as do the underlying 
principles of the laws of war, evidence from past practice and trials, and certain 
customary rules. The environmental provisions in the ENMOD Convention, and 
in Additional Protocol I, should be seen as essentially supplementing these 
fundamental sources — and in the case of ENMOD as covering such special cases 
as the use of rain-making or defoliation techniques — rather than as constituting 
the core of the laws of war rules regarding the environment. As for the large body 
of general (peacetime) international law relating to aspects of the environment, 
decision-makers and commanders may be expected to pay due regard to its 

Roberts 261 

provisions; and there is a need for a factual and pragmatic examination of how this 
body of law has in fact operated during armed conflicts. 

B. Certain Iraqi Actions as Violations of the Laws of War 

There is no serious disagreement with the proposition that, during the 1990-91 
Gulf Conflict, the laws of war were violated by much Iraqi action of an 
environmentally damaging kind: the indiscriminate laying of mines, the creation 
of huge oil slicks, and the wanton destruction of oil facilities in the occupied 
territory of Kuwait. The Iraqi Government undoubtedly deserves the lion's share 
of blame for the environmental destruction, as it does for so much else in this war. 
Even if the point had not been stated beforehand as authoritatively, clearly and 
frequently as might have been wished, the Iraqi leaders should not have been in 
doubt that the environmental destruction in which they engaged was a violation 
of international law. 

C. Did New Weapons Systems Cause Environmental Problems? 

Some modern weaponry used in the war appears to have caused problems of an 
environmental character, mainly after the end of the war, to people in the former 
war zones. Unexploded cluster-bombs and depleted uranium armor-penetrators, 
are cases in point. Mines constituted a more old fashioned but perhaps more deadly 
threat. The Coalition bombing campaign involved use of some new weaponry to 
attack targets in Iraq, but in many cases this assisted accuracy and reduced 
collateral damage. 

The most environmentally questionable acts in this war were not caused by new 
or especially deadly weaponry, but by selecting as targets sensitive installations — 
including oil installations and nuclear reactors. On the Iraqi side, the attacks on 
oil installations were not so much acts of combat as wanton destruction of property 
in occupied territory. 

JD. Why did Iraq Engage in Widespread Destruction? 

Various reasons, both military and psycho-pathological, have been advanced to 
explain Iraq's wanton acts of destruction. Some elementary considerations deserve 
mention. First and foremost, Iraq simply wanted to destroy Kuwait if it could not 
control it. Retreating aggressors do often engage in wholesale destruction of the 
territory they had occupied — a fact which underscores the importance the 
international community attaches to rules against wanton (including 
environmentally damaging) destruction. The less powerful side in a war is often 
the side most tempted to resort to desperate expedients, even if those expedients 
involve an element of self-destruction, and offer no serious hope of turning defeat 
into victory. The desire to deny a victor the fruits of war, common enough anyway, 

262 Protection of the Environment During Armed Conflict 

would have been reinforced if the Iraqi leadership believed its own propaganda to 
the effect that it was for the sake of oil that the U.S. went to Kuwait's rescue. 

On a more fundamental level, Iraq's sense of alienation from international 
society — the product of a particular and in many ways debatable interpretation of 
its own history — made matters worse. Iraq (which was far from alone in this) had 
not incorporated into its martial ethos or military training the whole range of laws 
of war provisions to which it was bound by treaty. Further, Saddam Hussein may 
well have learned a terrible lesson from the Iran-Iraq war of 1980-88. From the 
international community's failure to react to the original attack on Iran in 1980, 
and from its failure to do anything much about Iraq's use of gas, he doubtless 
concluded that he could ignore international law and institutions with impunity. 
In addition, the occupation of Kuwait and the subsequent war took place against 
the background of the Israeli occupation of the West Bank, Gaza, and the Golan 
Heights — an occupation which was 23 years old in the summer of 1990. Rightly 
or wrongly, many Arabs saw the Israeli occupation as proof of the inefficacy or 
bias of international legal institutions. This may have contributed to Iraq's and 
the PLO's reckless disregard of international legal restraints in the crisis over 

E. Did the Coalition Do Enough to Prevent Environmental Destruction? 

A key question raised by the environmental destruction in this war (as also by 
the Iraqi use of hostages and treatment of prisoners of war) is how to secure 
understanding and implementation of existing law. In particular, how is the 
international community to respond before, during and after a war, when one 
belligerent apparently rejects basic provisions of the laws of war and/or appears 
unconcerned about environmental issues? 

The Coalition powers did take laws of war issues, and environmental 
considerations, into account in many aspects of their actions. However, many 
problems remained. Attacks on such military targets as electric generating stations 
in Iraq had serious effects on water and sewage systems, leading to disease and loss 
of life. In addition, significant possibilities of emphasizing the laws of war as a 
means of inducing restraint between the belligerents may have been missed, 
especially in the field of environmental destruction. 

At the start of Operation Desert Storm in January, should there have been a 
public statement from the Coalition about what international agreements, 
provisions and principles relating to the laws of war were beyond question in force? 
While there would have been hazards in such a course, Iraq did need reminding 
of its obligations; and different participants in the Coalition were in some cases 
bound by different treaties, so there were possibilities of inter-allied confusion. 

In particular, it is remarkable that the Coalition powers apparently did not take 
further the warning against destruction of Kuwait's oilfields and installations that 

Roberts 263 

had been contained in President Bush's letter to Saddam Hussein — the letter 
rejected at Geneva on 9 January 1991. It may be that on this, as on other matters 
relating to the 1991 Gulf War, much important activity was not in the public 
domain and will only emerge slowly and belatedly. The Pentagon's Interim Report 

Means to deter or restrict Saddam's capability to inflict environmental damage were 
limited. Assessments weighed whether aerial bombardment by the Coalition of key 
Kuwaiti facilities prior to Iraqi sabotage might cause more damage than it prevented 
or provoke the Iraqis to embark on an even more widespread campaign. 

This leaves it unclear how much consideration, if any, was given to the possibility 
of a serious effort — by major statements, by broadcast, and by leaflet — to spell out in 
advance to Iraqi officers at all levels the criminality of setting fire to oil wells out of 
vengeance, the personal responsibility they would bear if they participated in such 
acts, and the possibility of a tough response by the Coalition if Iraq persisted in such 
destruction. Of the millions of leaflets dropped by the Coalition powers on Iraqi forces, 
none discouraged environmental destruction. 

There must be scepticism as to whether a clearer enunciation of the law, coupled 
with statements on the consequences of violating it, would have stopped Saddam 
Hussein or those under him in their environmentally destructive tracks. After all, 
the rules on the treatment of inhabitants of occupied Kuwait, and on treatment of 
prisoners of war, were perfectly clear, but this did not stop Iraq from cruelly 
mistreating such people and ignoring some of the most basic provisions of the 
1949 Geneva Conventions. There can be no certainty that a stronger effort to 
impress on the Iraqi Government or Iraqi officers the illegality of environmental 
destruction would have worked; but it might have been worth trying. 

The problem of inducing Iraqi restraint in the matter of environmental damage 
was in some ways similar to the problem of preventing Iraqi use of gas and chemical 
warfare. Both issues involved international legal standards. Both also raised the 
questions of how to actively deter criminal Iraqi action; and of how to ensure that 
Iraqi commanders at all levels were fully aware of their personal responsibility, 
and liability, for any violations. 

The Coalition powers did make a serious and successful effort to dissuade Iraq 
from resorting to gas and chemical weapons. On the basis of the succinct 
prohibition of gas and chemical warfare in the 1925 Geneva Gas Protocol, they 
confirmed the illegality of resorting to such means, and adopted a strong deterrent 
posture, repeatedly threatening severe retaliation if such weapons were used. They 
took a similar line regarding nuclear and biological weapons, with special 
emphasis on destruction of Iraq's capacity. In respect of the environment, their 
efforts do not appear to have been so consistent or successful. During this crisis, 
at least until the point where Saddam Hussein's environmental threats began to 

264 Protection of the Environment During Armed Conflict 

be carried out on a large scale, there were few authoritative statements on the 
illegality of acts of wanton destruction causing massive environmental damage. 

There are several possible explanations for what appears to have been a failure 
of the Coalition governments to make serious efforts to dissuade Iraq from wanton 
environmental destruction. In some countries, including the U.S. and U.K., it is 
possible that there may have been some residual elements of doubt as to whether 
such destruction was unambiguously against the written laws of war as they were 
in force in the Gulf, especially bearing in mind that none of the three laws of war 
treaties mentioning the environment by name was technically in force in this war. 
At all events, there was no short and undisputed text to be cited. It probably did 
not help that the Coalition leader, the U.S., had in the preceding years expressed 
criticisms of Additional Protocol I in general, and also, occasionally, of its 
environmental rules in particular. 

The second, and more likely, explanation has to do with the urgency of other 
claims on the attention of the Coalition governments and armed forces, especially 
those of the U.S. They had more immediate worries: the ever-present possibility 
of gas, biological or even nuclear weapons being used against Coalition troops; the 
nightly Scud missile attacks on Israel and Saudi Arabia — in the former case posing 
the risk of the war getting out of hand; mistreatment of their prisoners in Iraqi 
hands; and the threat of terrorist attacks beyond the region. It is not surprising, 
even if it is regrettable, that environmental hazards, whose effects would be slower 
to develop, and which did not pose a threat to the Coalition's prosecution of the 
war, did not feature so prominently in governmental decision-making on the 
Coalition side. Allied governments might have been especially reluctant to get into 
a confused and dangerous process of threats and reprisals in respect of 
environmental damage, wanting perhaps to reserve their retaliatory threats as 
counters to more immediately worrying Iraqi actions. This raises the disturbing 
possibility that in war it is always likely to be so: there will always be more pressing 
issues than long-term protection of the environment. Often in life the important 
yields to the urgent. 

A third possible level of explanation is that of the military mind-set. Military 
staffs may simply have lacked the training and mental framework to consider 
environmental damage as a major issue to be addressed in the planning and 
conduct of war. Overall, the performance of the Coalition side in the 1991 Gulf 
War and other recent wars suggests that any such military mind-set is slowly 
changing in favor of a greater awareness of the salience of environmental issues. 

Further, it so happened in this war that issues which were environmental, 
idealistic and green (avoid fouling up the air and the waters) were also materialist 
and capitalist (avoid destruction of the oilfields and installations); the Coalition 
governments, anxious to demonstrate to their domestic and international critics 

Roberts 265 

that this was not just a war for oil, may have been inhibited about placing heavy 
emphasis on the protection of the oilfields and installations. 

F. Did Environmentalists Weaken Their Own Case? 

Environmental organizations and individuals played a prominent part in 
debates before, during, and after the war. They did much to focus attention of the 
adverse environmental effects of the war, and to stimulate clean-up and preventive 
measures of various kinds. However, some of the approaches taken by some 
environmentalists may have weakened their own case, and illustrated certain 
hazards of single-issue campaigning. 

First, in the weeks and months before the outbreak of war in January 1991, 
environmental hazards had been raised as a reason for not resorting to war at all, 
rather than as a reason for trying to get some restraint in the conduct of the war. 
Some environmentalists appeared reluctant to concede the possibility that 
ecological factors might have to be balanced against other powerful considerations, 
such as prevention of aggression, or maintenance of the credibility of international 
institutions. Almost all of those expressing concern about environmental hazards, 
being reluctant to contemplate war at all, had failed to make specific proposals of 
a kind which might have helped to limit any war which did occur. 

Second, the tendency of some environmentalists in the weeks before the 
outbreak of the 1991 Gulf War to forecast utter environmental catastrophe on a 
global scale may have reduced their credibility and effectiveness. Prophecies of 
doom should be used sparingly if they are to have any credibility. In any event, 
although the oil spills and destruction of oil wells were at least of the magnitude 
forecast, the actual damage was local, mainly in Kuwait but also in Iraq and in 
other States which border on the Gulf. The Iraqi actions in respect of oil were 
criminal more because they were a stupid waste of good resources and caused 
extensive local damage than because they threatened the planet with catastrophic 
climate change. Further, a main environmental threat, the indiscriminate laying 
of mines, was also limited in scope rather than apocalyptic. 

Third, to the extent that environmentalists and others put emphasis on 
Additional Protocol I, they may have had the effect of underplaying the 
significance of those earlier rules, from 1907 and 1949, which were a sounder basis 
for asserting the illegality of the Iraqi actions. It was unfortunate that Iraqi threats 
to set fire to oilwells and release oil on land and at sea were discussed in terms of 
a threat to the environment, rather than in the legally safer terms of wanton 

G. Failure on Laws of War Issues at the United Nations 

The U. N. did little, either before and during the war, to spell out in a clear and 
comprehensive way the laws of war rules which applied to the Iraqi occupation of 

266 Protection of the Environment During Armed Conflict 

Kuwait, and which would apply to any war between the Coalition and Iraq. This 
was true of the Security Council, of the Secretariat, and also of the General 
Assembly, whose work on laws of war matters during this particular crisis (in 
marked contrast to some other conflicts) was practically non-existent. 

There was no formal obligation on any part of the U.N. system, or indeed on 
the Coalition, to spell out publicly how laws of war would apply in this occupation 
and conflict. The difficulties of doing so in any detail are obvious. Others, 
including the ICRC, could and did perform this task. Yet there is bound to be an 
argument that this omission on the part of the U.N. was serious, especially so far 
as environmental issues were concerned. Iraq had already made environmental 
threats by September 1990: an authoritative clarification of the existing law (or at 
least its broad principles) by an international body representing governments 
would have done no harm and might even have been helpful. 

H. Additional Protocol I After the 1991 Gulf War 

The experience of the 1991 Gulf War raised questions about the desirability and 
adequacy of the provisions of Additional Protocol I, and about whether it should 
be ratified by those States which have hitherto held back. These questions are 
numerous and complex; only a few relating to the environment are mentioned 

Of the three laws of war agreements concluded in 1977-81 which mention the 
environment, Additional Protocol I is the most important overall, and the most 
relevant to the facts of this war. However, Articles 35 and 55, with their specific 
provisions on the environment, would have been of limited relevance even if the 
treaty had been in full force. It is unnecessary to seek authority from these articles 
to assert the illegality of the particular oil-related crimes committed by Iraq in 
occupied Kuwait. The Iraqi actions were wanton destruction rather than a method 
of warfare; and they failed tests of military necessity and proportionality. 

Does Additional Protocol I, in Articles 35 and 55, establish too high a threshold 
for environmental damage? As noted earlier, the Pentagon's Final Report went so 
far as to question whether the huge environmental damage inflicted by Iraq 
actually constituted those "methods or means of warfare which are intended, or 
may be expected, to cause widespread, long-term and severe damage to the natural 
environment" which are prohibited in the Protocol. Certainly the requirement 
that environmental damage must be "long-term," if this continues to be measured 
in decades, will limit the utility of the Protocol's environmental provisions. 
Indeed, in many situations other provisions of the Protocol, including those 
protecting civilian objects, probably have more relevance to environmental 
protection. It is not surprising that in these circumstances there have been 
suggestions that the terms "widespread, long-term and severe" in the Protocol 

Roberts 267 

"belong to earlier concepts of environmental protection" and need to be 
re-interpreted or revised. 

If Additional Protocol I had been in force, would the general Coalition war 
effort have been hampered? A considered U.S. or U.K. military evaluation of this 
question would be bound to expose a wide range of problems. The war did 
undoubtedly throw into relief certain weaknesses in the Protocol. For example, 
the prohibitions on reprisals in Articles 51-56 are very sweeping, and raise the 
question whether powers should rule out in advance almost all right of reprisal 
when they are fighting an adversary with so little regard for legality as Saddam 
Hussein. However, as far as environmental issues are concerned, the prohibitions 
on reprisals may not be a problem, as it is hard to know what reprisals are 
appropriate in respect of environmental damage. The provisions of Article 54, on 
protection of objects indispensable to the survival of the civilian population, could 
have been cited in criticism of some Coalition bombing actions in Iraq: no bad 
thing, some would say, if it clarifies restraints on belligerents, and assists an 
informed debate about the principles of targeting. As regards Article 56, on 
protection of works and installations containing dangerous forces, the position is 
perhaps simpler: despite a few interpretations to the contrary, and for the reasons 
cited earlier, this article does not place a prohibition on attacks on the kinds of 
nuclear installations actually hit by the United States in the course of the war. 
Overall, the events of the war suggested the relevance and utility of many of the 
general principles and detailed provisions of Additional Protocol I. 

In the event that some States, including possibly the U.S., remain unwilling to 
ratify the Protocol, there will be a need to fill the gap by giving what has long been 
promised, "some alternative clear indication of which rules they consider binding 


or otherwise propose to observe." Despite the impressive work done in the crisis 
to bring the laws of war to bear on the actions of the U.S. and Coalition forces, the 
war did highlight the gap in U.S. policy towards the laws of war which was already 
evident. If the gap cannot be filled by ratification, then the "alternative clear 
indication" which is needed will have, among other things, to address matters 
relating to the environment. Revised military manuals, harmonized as far as 
possible with those of other countries, are a promising way of filling such a gap. 

J. Proposals for New Convention on War and the Environment 

The events of the 1991 Gulf War drew attention to the apparent absence of a 
simple, formally binding, set of rules about the impact of war on the environment. 
In its immediate aftermath there were, therefore, many serious arguments for some 
new attempt at codification. Yet there was always a question whether a new treaty 
was desirable and possible. The existing laws of war do say a lot, indirectly and 
directly, that bears on damage to the environment; clear and authoritative 
exposition of this was needed just as much as new legislation. 

268 Protection of the Environment During Armed Conflict 

Negotiation for a new agreement on the environment was increasingly seen as 
hazardous. Such an attempt could run into fundamentally intractable problems 
(of which there have already been foretastes in other negotiations) about defining 
the natural environment; about defining damage to it; about working out exactly 
which environmentally damaging acts are forbidden; about distinguishing 
between intentional, collateral, and completely unexpected damage to the 
environment; about whether certain kinds of destruction, including even scorched 
earth, might be permissible in certain circumstances, including perhaps to a 
defending State within its own national territory; about establishing exactly what 
military-related activities could be permitted in any specially protected 
environmentally important areas; and about the applicability of existing 
international norms in non-international armed conflicts. The question of nuclear 
weapons would inevitably be raised, and it would probably be as hard as ever to 
bring such weapons within the framework of the laws of war. Other questions 
would be hardly less awkward. The powers which took part in the Coalition in the 
1991 Gulf War, for example, were not about to assert that absolutely all destruction 
of oil targets was impermissible. They may also have feared that other sensitive 
issues would be raised in such negotiations. 

Reliance on the admittedly sparse rules and broad statements of principle 
already enshrined in many existing accords from 1907 to 1977 may indeed be more 
productive than aiming for a major new convention. Detailed rules have many 
advantages, but also weaknesses. They are vulnerable to the passage of time. 
Indeed, an examination of existing law and practice suggests that, so far as the 
environment is concerned, there is always a need for interpretation of rules and 
principles in the light of circumstances and new technical developments. In 
particular, there is often a need to balance environmental considerations against 
such factors as the importance of particular military objectives, and the need to 
save soldiers' lives. 

K. Other Courses of Action 

In any event, the ICRC, the majority of international lawyers who looked at the 
matter, and most governments, clearly favored the course that was adopted: not 
negotiating a new convention, but rather securing authoritative reports, General 
Assembly resolutions, draft military manuals and so on, drawing together existing 
principles and provisions in a simple and intelligible way. 

This process has already yielded substantial results, including the ICRC/U.N. 
report of July 1 993, and the General Assembly Resolutions in 1 992-94. However, 
some legal and practical questions have scarcely begun to be addressed. First, to 
what extent are peacetime environmental agreements formally applicable, or at 
least in practice applied, during armed conflicts and military operations? Second, 
can wartime environmental clean-up efforts (which may involve a wide variety of 

Roberts 269 

highly specialized personnel drawn from different professions) be granted 
protection comparable, say, to that accorded in the 1949 Geneva Conventions to 
humanitarian relief efforts? Other issues, too, need further attention, including 
the lethal legacy of land-mines left by recent wars, and the use and disposal of 
environmentally harmful substances in weapons. 

Overall, the difficulties which arose in the Gulf conflict, especially in matters 
relating to the environment, suggest that the main problem lies in ensuring that 
the law which exists is adequately understood, widely ratified, sensibly interpreted, 
and effectively implemented. The law's purposes, principles and content need to 
be properly incorporated into the teaching of international law and relations; into 
military manuals and training; and into the minds and practices of political 
leaders, diplomats and international civil servants. 

Any wars in future decades and centuries are likely to be in areas where there 
are high chances of the environment being affected. This is mainly because 
economic development results in the availability of substances (oil, chemicals, and 
nuclear materials being the most obvious examples) which can very easily be let 
loose, whether by accident or by design, on the all-too-vulnerable land, air, and 
water on which we depend; because some parts of the natural environment are 
becoming more constricted and fragile due to peacetime trends; because much of 
the environment in which we live (especially water supplies) depend on the smooth 
running of an infrastructure easily disrupted by war; and also because some 
weapons (nuclear weapons being only the most extreme case) may themselves have 
terrible effects on the environment. For all these reasons, the environmental effects 
of war, dramatized by the 1991 Gulf War, are likely to remain a serious problem. 
Even if it can never be completely solved, the problem needs to be tackled, not 
least within a laws of war framework, and more consistently than it was in the Gulf 
conflict of 1990-91. 


*The Montague Burton Professor on International Relations at Oxford University. 

1. This is an extensively revised and updated version of Roberts, Failures in Protecting the Environment in the 
1990-91 Gulf War, in The Gulf War 1990-91 in International and English Law (Rowe ed. 1993). An earlier draft 
had been presented at the International Committee of the Red Cross (ICRC) Meeting of Experts on the Protection of 
the Environment in Time of Armed Conflict, Geneva, 27-29 April 1992. The author also attended the two subsequent 
ICRC Meetings of Experts in January and June 1993. The participants in these meetings helped me greatly, as has 
Bill Arkin in 1995. 

2. Surveys in 1991-92 reflecting the growing interest: Bouvier, Protection of the Natural Environment in Time of 
Armed Conflict, Int'l Rev. of the Red Cross, at no. 285, Nov.-Dec. 1991; articles by Bothe, Dahl and Szasz in 
Disarmament, United Nations, vol. xv, no. 2, 1992, 101-61; and Envrionmental Protection and the Law of War: 
A 'Fifth Geneva* Convention on the Protection of the Environments Time of Armed Conflict? (Plant ed. 1992) 
(based on the 3 June 1991 London Conference on the Protection of the Environment in Time of Armed Conflict). 

3. Protocol I Additional to the Geneva Conventions Relative to the Protection of Victims of International Armed 
Conflicts, with Annexes, 12 Dec. 1977, reprinted in 16 1.L.M. 1391 (1977). 

4. For one look at a range of issues raised by this occupation and war, see Roberts, The Laws of War in the 1990-91 
Gulf Conflict, Int'l Sec, Winter 1993/94 at 134-81. 

270 Protection of the Environment During Armed Conflict 

5. A few examples, from the Book of Deuteronomy to the late 17th Century, are in Green, The Environment and 
the Law of Conventional Warfare, paper for Conference on the Use of the Environment as a Tool of Conventional 
Warfare, Ottawa, 10-12 July 1991, at 1-2. 

6. See especially the characteristic plea for restraint in Book III, Chapter XII, Moderation in Laying Waste and 
Similar Things, in Grotius, De Jure Bella Ac PACis(1625),(Kelsey trans. 1925), at 745-56. Earlier (in Book III, Chapter 
IV) Grotius had said that by the law of nations it was forbidden to poison waters, though it might be legitimate to 
divert a river or cut a spring; id., at 652-53. 

7. Best, The Historical Evolution of Cultural Norms Relating to War and the Environment in, Cultural Norms, War 
and the Environment, (Westing ed. 1988), p. 18. He defines the 'anthropogenic environment* as "what humans had 
wrought from the natural environment" — e.g. crops, orchards, herds of livestock, and wells; ibid at 20. 

8. Cruttwell, A History of the Great War 1914-1918, 1934, 297-98. Norton Griffiths (MP for Wednesbury 
1910-18) was awarded "GSO 1st grade on special mission in connection with corn and oil stores in Roumania, 1916," 
and was also made Commander Grand Star of Roumania; Who Was Who, vol. Ill, (1947), at 560. 

9. See, e.g. Westing, Ecological Consequences of the Second Indochina War, (1976). 

10. Aldrich, Prospects for United States Ratification of Additional Protocol I to the 1949 Geneva Conventions, 85 A.J.I.L. 

11. Declaration of the United Nations Conference on the Human Environment, Stockholm, 1972, U.S. Doc. 
A/Conf. 48/14; reprinted in 11 I.L.M. 1416(1972). 

12. Rio Declaration on Environment and Devlopment, 1992, U.N. Doc. A/Conf. \5\ 15 [Rt\.\, reprinted in 31 I.L.M. 

13. Antarctic Treaty, 1959, 12 .U.S.T. 794; T.I.A.S. 4780. 

14. Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space and Under Water, 1963, 14 U.S.T. 
1313; T.I.A.S. 5433. 

15. Convention on the Prohibition of the Development Production and Stockpiling of Bacteriological (Biological) 
and Toxin Weapons and or their Destruction, 1972, 26 U.S.T. 583; T.I.A.S. 8062. 

16. International Convention for the Prevention of Pollution of the Sea by Oil, 1954, 12 U.S.T. 2989; T.I.A.S. 
4900, Art. IV(lXa). Neither Iraq nor Iran were parties to this treaty at the time of the 1990-91 Gulf Conflict. 

17. 1982 United Nations Convention on the Law of the Sea, reprinted in 21 I.L.M. 1261 (1982). 

18. The text of the Kuwait Regional Convention is reprinted in 17 I.L.M. 511 (1978), and International 
Environmental Law: Primary Materials, (Molitor ed. 1991) at 273-78. On the clean-up operations and ROPME's 
part in them, see text at nn. 121 & 128, infra. 

19. Prof. Vorontsov, USSR Minister of the Environment and Nature Management, Vice-President of the Russian 
Academy of Natural Sciences, in a fax of 24 May 1991 to Dr. Leipold of Greenpeace International in London; circulated 
at the 3 June 1991 London Conference, and reprinted in Environmental Proteciton and the Law of War, supra, n. 
2 at 242. 

20. Modern military manuals referring to some or all of these principles include U.S. Department of the Army, 
The Law of Land Warfare, FM 27-10, (1956) at 3-4; United Kingdom, Manual of Military Law, Part III, HMSO, (1958), 
at pp. 1-2; U.S. Department of the Navy, The Commander's Handbook on the Law of Naval Operations, NWP 9, (1987), 
at 5-1. On the history of principles of the laws of war,5^ particularly Johnson, Just War Tradition and the Restraint 
of War: a Moral and Historical Inquiry, (1981), at 196-228. 

21. Falk, The Environmental Law of War: An Introduction, in Environmental Protection and the Law of War, 
supra n. 2, at 85. 

22. Id., at 16 

23. "Because damages to the environment affect the civilian population, they are, under certain circumstances, 
prohibited." Bothe, War and Environment, in Encyclopaedia of Public International Law, vol. 4, (1982) 291. 

24. Declaration Renouncing the use of in time of War of Explosive Projectiles under 400 Grammes in Weight; 
St. Petersburg, 1868, 1 A.J.I.L. (Supp.) 95. 

25. Hague Convention No. IV Respecting the Laws and Customs of War on Land, 1907, 36 Stat. 2227; T.S. 539. 

26. The Martens Clause was adopted at the 1899 and 1907 Hague Conferences principally because the powers 
had not been able to agree on detailed rules on certain problems relating to occupied territories and the treatment of 
resistance: but the Clause was written in broad terms, and has been widely seen as having a broader application. Its 
wording is reflected in articles and preambles in a number of subsequent treaties, including the four Geneva 
Conventions of 1949, Additional Protocols I and II of 1977, and the U.N. Conventioanl Weapons Convention of 1981. 

27. Best, supra n. 7, at 20. 

28. Hague Convention No. V Respecting the Rights and Duties of Neutral Powers and Persons in Case of War 
on Land, 1907, 36 Stat. 2310; T.S. 540; and Hague Convention No. XIII Concerning the Rights and Duties of Neutral 
Powers in Naval War, 1907, 36 Stat. 2415; T.S. 545. 

29. Protocol for the Prohibition on the use in War of Asphyxiating, Poisonous, or Other Gases and of 
Bacteriological Methods of Warfare, 1925, 26 U.S.T. 571; T.I.A.S. 8061. 

Roberts 271 

30. U.N. General Assembly Resolution 2603A (XXIV) of 16 Dec. 1969. 

31. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949, 6 U.S.T. 3516; 
T.I.A.S. 3365. 

32. Commentary on Geneva Convention IV, (Pictet ed. 1958), at 302. 

33. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the 
Field, 1949, 6 U.S.T 31 14; T.I.A.S. 3362; and Geneva Convention for the Amelioration of the Condition of Wounded, 
Sick, and Shipwrecked Members of Armed Forces at Sea, 1949, 6 U.S.T. 3217; T.I.A.S. 3363. 

34. Convention for the Protection of Cultural Properly in the Event of Armed Conflict (with Regulations and 
Protocol), 1954, 249 U.N.T.S. 240. 

35. Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification 
Techniques, 1977, 31 U.S.T. 333; T.I.A.S. 9614. 

36. For an analysis of the Convention and of the general issue of environmental warfare in the sense of using the 
forces of the environment as weapons, see Environmental Warfare: a Technical, Legal and Policy Appraisal, 
(Westing ed. 1984). 

37. Protocol I Additional to the 1949 Geneva Conventions Relating to the Protection of Victims of International 
Armed Conflicts, with Annexes, 1977, reprinted in 16 I.L.M. 1391 (1977). 

38. Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 
(Sandoz el al, eds, 1987) 663. 

39. Bothe, Partsch & Solf, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 
Protocols Additional to the Geneva Conventions of 1949, (1982), at 348. 

40. Official Records of the Diplomatic Conference on the Reaffirmation and Development of International 
Humanitarian Law Applicable in Armed Conflicts, Bern, Fed. Pol. Dep., (1978), vol. VI, at 118. On U.S. attitudes to 
the environmental provisions, see infra, text at nn. 57 & 60. 

41. Commentary on the Additional Protocols, supra n. 38 at 415, 417-18 and 664. The background to Articles 
35 and 55 is also very usefully discussed by Kiss, in Les Protocoles Additionnels aux Conventions de Geneve de 1977 et la 
Protection de Biens de I'environnement, in Studies and Essays in International Humanitarian Law and Red Cross 
Principles in Honour of Jean Pictet, (Swinarski ed., 1984) at 181-92. 

42. Commentary on the Additional Protocols, supra n. 38 at 662. 

43. For a detailed and impressive critique of Article 56, see the book-length article by Parks, Air War and the Law 
of War, 32 Air Force L. Rev., 202-18. Dr. Parks is Chief of the International Law Team, International Affairs Division, 
Office of the Judge Advocate General of the Army. Dr. Parks is also author of the forthcoming revised U.S. Department 
of the Army FM 27-10, entitled The Law of War. 

44. Parks, Air War, supra, at 212. 

45. On this point, see especially Aldrich, supra n. 10 at 12-13. Aldrich had been the head of the U.S. delegation to 
the conference that adopted the 1977 Additional Protocols. The relevance of Art. 56 to the Coalition bombing in the 
1991 Gulf War is explored further infra, text accompanying n. 113. 

46. On the meaning of Art. 56, Arkin et al. have asserted unconvincingly: "The examples given in Protocol I, 
such as nuclear electrical generating stations, are not meant to be exhaustive, and a liberal construction could say that 
the release of the force of the oil fires and spills are covered." Arkin, Durrant, & Cherni, On Impact: Modern Warfare 
and the Environment — A Case Study of the Gulf War (a study prepared for the 3 June 1991 London Conference on the 
Protection of the Environment in Time of Armed Conflict), May 1991, at 140. 

47. Commentary on the Additional Protocols, supra n. 38 at 668-69. 

48. Additional Protocol I, supra n. 37, Art. 61, para, (a), items ix, xii and xiv. 

49. Greenwood, Customary Law Status of the 1977 Geneva Protocols, in Humanitarian Law of Armed Conflict: 
Challenges Ahead, (Delissen & Tanja eds. 1991),at 102-03, 105, 108 & 110. See also his chapter, Customary International 
Law and the First Protocol of 1977 in the Gulf Conflict, in The Gulf War 1990-91 in International and English Law, 
(Rowe ed. 1993), at 63-88. 

50. 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, 1981, reprinted in, 19 I.L.M. 1524 (1981). 

51. Charter of the International Military Tribunal, concluded in London in August 1945, Article 6(b) — extract. 
Full text in The Trial of German Major WarCriminals: Proceedings of the International Military Tribunal Sitting at Nuremberg 
Germany, Part 22, London, HMSO, 1950, at 412-13. The section of the judgment dealing with Jodl's responsibility 
for destruction is at 517. See also the numerous references to scorched earth in Part 23 (the index volume), at 620. 

52. United Nations War Crimes Commission, History of the United Nations War Crimes Commission and the 
Development of the Laws of War, London, HMSO for UNWCC, 1948, at 496. 

53. United Nations War Crimes Commission, Law Reports of Trials of War Criminals, London, HMSO, vol. VIII, 
1949, at 69. The Norwegian criticisms of the judgment are mentioned in Best, War and Law SiNCE 1945 (1994) at 

272 Protection of the Environment During Armed Conflict 

54. For one approach on an important issue in the Iran-Iraq war, see Jordan, Petroleum Transport Systems: No 
Longer a Legitimate Target, 63 Nav. War Col. Rev. 47-33 (Spring 1990). 

55. President Reagan's letter of transmittal of Additional Protocol II to the U.S. Senate, Treaty Doc. No. 2, 100th 
Cong., 1st Sess., at III (1987), reprinted in 81 A.J.I.L. 910-12. 

56. On 22 January 1987 at the Sixth Annual American Red Cross- Washington College of Law Conference on 
International Humanitarian Law, in 2 Am. U. J. Int'l L. and PoPy 420 & 422. For Judge Sofaer's similar remarks on 
consultations with allies, see 471. 

For subsequent similar statements by Matheson, see A.S.I.L., Proceedings of the 81st Annual Meeting, Boston, 
Massachusetts, April 8-11, 1987, at 28 & 29. 

For a subsequent authoritative account of the state of U.S. -led discussions to fill the gap left by U.S. 
non-ratification of Additional Protocol I, see the major critique of the Protocol by Parks, supra n.43 at 222-23. 

57. Am. U. J. Int'l L. and Pol'y, supra n. 56 at 424. 

58. Loc. cit., 436. See also A.S.I.L., Proceedings, supra n. 56, at 29-31. 

59. Am. U. J. Int'l L. and Pol'y, supra n. 56, at 427 and 434 (Matheson); and 468-9 (Sofaer). For U.S. criticisms 
of Article 56 see also Parks, supra n. 43. 

60. Aldrich, supra n. 10, at 14. This article, a response to the critiques of the Protocol, is in some respects 
incomplete. Referring to Matheson's remarks in January 1987, Aldrich says simply: "With respect to the articles 
concerning the environment, no explanation was offered." (p. 12.) This does slightly less than justice to Matheson's 
remarks as cited above. Curiously, Aldrich does not refer at all to one major U.S. critique of Additional Protocol I — 
Parks, Air War, supra n. 43. 

61 . Greenwood, Customary Law Status of the 1977 Geneva Protocols, supra n. 49, at 95. See also his discussion of the 
agreement between Coalition States on the rules of engagement and targets in his chapter on Customary International 
Law and the First Protocol of 1977 in the Gulf Conflict, supra n. 49, at 66, 72-75, & 83-84. 

62. Hague Convention No. IV Respecting the Laws and Customs of War on Land (with annexed Regulations), 
1907, 36 Stat. 2227; T.S. 539; Hague Convention No. V, supra n. 28; Hague Convention No. VIII Relative to the Laying 
of Automatic Contact Mines, 1907, 36 Stat. 2332; T.S. 541; Hague Convention No. IX Concerning Bombardment by 
Naval Forces in Time of War, 1907, 36 Stat. 2351; T.S. 542; and Hague Convention No. XIII, supra, n. 28. 

63. Supra, n. 29. 

64. Geneva Convention No. l,supra, n. 33; Geneva Convention No. II, supra, n. 33, Geneva Convention III Relative 
to the Treatment of Prisoners of War, 1949, 6 U.S.T. 3316; 75 U.N.T.S. 135; and Geneva Convention No. IV, supra 

65. Supra, n. 34. 

66. Supra, n. 35. 

67. Supra, n. 3. 

68. Depositary information on Additional Protocol I is from ICRC, List of Signatures, Ratifications, Accessions 
and Successions as at 31 December 1990, 14 Jan. 1991. In the period to 30 April 1991, there was no change affecting 
the depositary information given here: update in Dissemination, ICRC, July 1991, at 19. 

69. Supra, n. 50. 

70. ICRC, The Gulf 1990-1991 : From Crisis to Conflict, ICRC Publications, 1991, at 4-5, 10-13 & 43-44. This 
publication summarizes the following ICRC press releases stressing the applicability of international humanitarian 
law in this crisis: 1640 of 2 Aug. 1990; 1657 of 14 Dec. 1990; 1658 of 17 Jan. 1991; and 1659 of 1 Feb. 1991. These 
public appeals were reported in newspapers at the time: see e.g. report of the previous day's ICRC press release in The 
Independent, (London), Jan. 18, 1991, at 8. 

71. For full text of the ICRC Note Verbale and Memorandum dated 14 Dec. 1990, see 280 Int'l Rev. of the Red 
Cross, Jan.-Feb. 1991, at 22-6. On 11 January 1991 the U.S. Department of Defense sent a 3-page message to all 
commands giving the text of the ICRC Memorandum (which had been given to the U.S. Government on 10-11 
December), along with some detailed critical comments clarifying U.S. interpretations of the Memorandum. Other 
States do not appear to have reacted so fully. Copy of U.S. message is on file with author. 

72. Full text in ICRC, The Gulf 1990-1991, supra, n. 70 at 44; and in 280 Int'l Rev. of the Red Cross, supra n. 71, 
at 27. 

73. These efforts are described in detail by Angelo Gnaedinger, the ICRC's Delegate General for the Middle East 
and North Africa, Department of Operations, in ICRC, The Gulf 1990-1991, supra, n. 70 at 10-1 1. 5m also the article 
therein by Girod at 12. 

74. Report from Patrick Cockburn in Baghdad, The Independent, (London), 24 Sep. 1990, at 1. 

75. Id. 

76. Howe, NA TO and the Gulf Crisis, 33 Survival, May/June 1991 . 

77. Reports of the Conference on the Potential Environmental Effects of a Gulf War, held in London on 2 Jan. 
1991, in The Daily Telegraph, (London), 3 Jan. 1991, at 10; and The Independent, (London), 3 Jan. 1991, at 1 & 3. 

Roberts 273 

78. Text of this and other statements by Mr. Wakeham are in House of Commons, Foreign Affairs Committee, 
Third Report, The Middle East After the Gulf War, vol. II, 9 Jul. 1991, at 247-8. See also the Note (adopting a 
roughly similar line, but more detailed) by the Meteorological Office on "Possible Environmental Effects of Burning 
Oil Wells in Kuwait," dated 14 Jan. 1991, ibid., at 249; and the Foreign Office memorandum on "Environmental and 
Economic Consequences of the Gulf Conflict," dated 28 Jan. 1991, ibid., at 246-47. 

The existence of the Note by the Meteorological Office was known at the time. In a written answer in the House 
of Commons on 17 January, Mr Archie Hamilton, a junior Defence Minister, said: "The Meteorological Office has 
produced a note for the government on the possible environmental impacts of burning oil wells of Kuwait. I am 
placing a copy of this note in the Library of the House." Hansard, vol. 183, col. 546, 17 January 1991. 

79. Letter dated 5 Jan. 1991 from President Bush to President Hussein, as published in U.S. Department of State 
Dispatch, Jan. 14, 1991, at 25. (A version of the letter was also published in The Sunday Times, (London), Jan. 13, 

1991, at 1.) James Baker said at a press conference at Geneva on 9 January immediately after his long meeting with 
Tariq Aziz: "He read it very slowly and very carefully, but he would not accept it nor would the Iraqi Embassy in 
Washington accept an Arabic courtesy translation." U.S. Department of State Dispatch, id., at 22. 

In "The Washington Version," Part 3, a program about the 1991 Gulf War shown on BBC television on 18 Jan. 

1992, James Baker recounted that Tariq Aziz, having spent 12-15 minutes reading the letter, said that he could not 
accept it: "It is not written in the language heads of State use to communicate with each other." At the end of the 6-7 
hours meeting, throughout which the letter had lain on the table, Aziz again refused an invitation to take iL 

Later in the same program Lawrence Eagleburger, Deputy Secretary of State, said of Saddam Hussein: "One 
message I think he did get is that if he were to resort to chemical weapons he would regret it, and regret it intensely." 
Eagleburger was speaking in a general way, not referring specifically to the 9 January Geneva meeting. 

In a talk with the author in Washington on 9 May 1984, James Baker indicated that the consideration which 
probably weighed with Saddam Hussein was the nuclear one, rather than a threat of retaliation in kind (e.g. with 
chemical weapons) or a threat to occupy Baghdad. He has reiterated this view, adding some detail about the warnings 
issued, in his book The Politics of Diplomacy: Revolution, War and Peace (1995). 

80. President Bush, address to the nation, broadcast from the White House at 9 p.m. EST on 16 January 1991, 
U.S. Department of State Dispatch Jan. 21, 1991, at 37-38. 

81. Quoted in Keeva,Lawyers in the War Room, 11 A. B.A.J. 52 (1991). The author goes on to suggest: "In the wake 
of the Persian Gulf War, there is little doubt that the role of lawyers in military operations has changed irrevocably." 
Id. at 59. See also the passage on "Role of Legal Advisers" in Annex O of U.S. Department of Defense, Conduct of 
the Persian Gulf War: Final Report to Congress, (1992), at 607. 

82. Text published in 264 Scientific American 9, May 1991, at 9. A DOE spokesperson is quoted as saying that 
the policy was not intended to "muzzle the debate," but because discussions of the possible effects of fires and oil 
spills could "give the Iraqis ideas." 

83. Hansard, vol. 183, col. 980, 17 Jan. 1991. 

84. Report from Christopher Bellamy in Riyadh, The Independent, (London), Jan. 28, 1991, at 1. 

85. Arkin et al., On Impact, supra n. 46 at 62-3 says five Iraqi tankers were involved. In 1995 Mr Arkin advised 
me that the number was three. 

86. On 25 January 1991 Marlin Fitzwater, the White House spokesman, said the oil spill at that time taking place 
in the Gulf was "something that far exceeds any kind of tanker spill that we've ever witnessed." He indicated that it 
was several times bigger than the Exxon Valdez disaster in Prince William Sound, Alaska, in March 1989. This had 
dumped some 1 1 million gallons of crude [over 250,000 barrels]. The biggest oil spill disaster up to that point had 
been an oil rig accident in the Gulf of Mexico in 1979, which spilled 535,000 tons [over 3,750,000 barrels]; report in 
The Independent, (London), Jan. 26, 1991, at 1. (Figures in square brackets added.) 

On 26 January, reporting from Riyadh on the successful U.S. bombing raid to reduce the flow of oil, Christopher 
Bellamy said: "But even if the flow has been stopped, between five and 10 million barrels of thick crude oil have 
already poured into the Gulf from Kuwait creating an environmental disaster." He also reported what were apparently 
official Saudi estimates that the slick was "15 times the size of that produced by the Exxon Valdez supertanker disaster 
in Alaska in March 1989"; The Independent, (London), Jan. 28, 1991, at 1. 

On 28 January, Saudi Arabia's Oil Minister, Hisham Nazer, said that Iraq had pumped more than 1 1 million 
barrels of crude oil into the Gulf; The Independent, (London), Jan. 29, 1991, at 1. 

87. On the weekend of 9-10 February 1991 Derek Brown, environmental co-ordinator for the Bahrain Petroleum 
Company, flew over the Saudi coast. He subsequently said: "There are plenty of booms in place to protect harbours 
and installations, and there is a big clean-up operation going on. But the whereabouts of the enormous oil slicks 
reported a fortnight ago are a complete mystery.. ..There is certainly a severe pollution problem but it does not look 
like an environmental catastrophe at the moment." Report, in The Independent, (London), Feb. 14, 1991, at 5. 

88. In April 1992, the Pentagon said: "Between seven and nine million barrels of oil were set free into the Gulf 
by Iraqi action." — Final Reportto Congress, supra n. 8 1 at 624. In the same month, a Greenpeace paper by William 
M. Arkin, Gulf War Damage to the Natural Environment, at 2-3, gave the same figure, but mentioned additionally that 

274 Protection of the Environment During Armed Conflict 

smaller quantities of oil continued to leak into the Gulf from a number of sources until May or early June 1991. An 
assessment carried out under the auspices of the Regional Organization for the Protection of the Marine Environment 
(ROPME) said that between 6 million and 8 million barrels of oil had been spilled in the Persian Gulf waters; 
summarized in Yearbook of the United Nations 1992, at 690. See also the various figures in the publication of the 
Kuwait Environment Protection Council, State of the Environment Report: a Case Study of Iraqi Regime Crimes 
Against the Environment, Nov. 1991, at 28-30. For a very low figure (1.5 million barrels), see letter by Samir S. 
Radwan in 350 Nature 456 (April 1991). 

89. A short survey of ecological damage is Greenpeace's The Environmental Legacy of the Gulf War, (1992). 
It is weak on legal issues, but has useful reports of investigations and a wide range of references. The figure of at least 
30,000 marine birds perished is from the ROPME assessment (see supra, n. 88). See also Plant, Legal Aspects of Marine 
Pollution during the Gulf War, 7 Int'l J. Estuarine & Coastal L. 217-31 (1992). 

90. The destruction of oil installations had certainly commenced by 22 January. On that day "U.S. military 
authorities accused Iraq of setting fire to installations at three oil fields in Kuwait. The U.S. command in Riyadh 
released aerial photographs which, it said, showed Iraq had blown up parts of al-Wafra oil field on Kuwait's border 
with Saudi Arabia." The Independent, (London), Jan. 23, 1991, at 1. 

See also Counsell, Blowing up oilfields is "easy task", The Independent, (London) Jan. 23, 1991, at 2. 

91. Kuwait Environment Protection Council, State of the Environment Report, supra, n. 87 at 1, 2-3, & Table 
in Fig. 2. This states that after 26 February, 613 wells were on fire, 76 gushing, and 99 damaged. It quotes the Ministry 
of Oil in Kuwait as stating that 6 million barrels of oil per day, and 100 million cubic meters of gas a day, were being 
lost. The Environmental Legacy of the Gulf War, supra n. 89at 17 & 38, gives figures of between 2.3 and 6 million 
barrels per day. 

92. Letter from Permanent Mission of Kuwait at U.N. to the U.N. Secretary-General, 12 July 1991; text in 
Environmental Protection and the Law of War, supra, n. 2, at 265. 

93. Confirmed by the Pentagon in U.S. Department of Defense, Conduct of the Persian Gulf Conflict: An 
Interim Report to Congress, July 1991, at 13-1 & 13-2; and in the 1992 Final Report to Congress, supra n. 80 at 

94. Id., Interim Report to Congress, at 13-2; see also id. Final Report to Congress, at 625: "As with the release 
of oil into the Persian Gulf, this aspect of Iraq's wanton destruction of Kuwaiti property had little effect on Coalition 
offensive combat operations. In fact the oil well fires had a greater adverse effect on Iraqi military forces." 

95. Id., at 12-6, 12-7 bid. 13-1. 

96. Points emphasized in Final Report to Congress, Id., at 625. Also, the technical specifications for every oil 
well in Kuwait were reportedly destroyed; McNeill, Protection of the Environment in Times of Armed Conflict: 
Environmental Protection in Military Practice, paper at the Naval War College Symposium, Newport, RI (Sept. 1995), at 

97. President Bush, news conference (Jan. 25, 1991), U.S. Department of State Dispatch, Feb. 4, 1991, at 68. 

98. Sunday Times, (London), Jan. 27, 1991, at 24. The term "environmental terrorism" was also used by White 
House Press Secretary Marlin Fitzwater on 13 February; U.S. Department of State Dispatch, Feb. 18, 1991, at 114. 

99. Hansard, vol. 184, col. 655, Jan. 28, 1991. 

100. Hansard, vol. 186, cols. 285 & 286, Feb. 22, 1991. 

101. President Bush, Statement made at the White House, Feb. 22 1991; U.S. Department of State Dispatch, Feb. 
25, 1991, at 125. 

102. Reports in The Independent, (London), Feb. 23, 1991, at 1. 

103. See e.g. The Environmental Legacy ofthe Gulf War, supra, n. 89 at 17-22 & 34. 

104. Horgan, Up in Flames, 264 Sci. Am. May 1991, at 7-9; Brown, The Blazing Oilwells of Kuwait, The World 
Today, June 1991, at 47; Johnson et al., Airborne Observations ofthe Physical and Chemical Characteristics ofthe Kuwait 
Oil Smoke Plume, 353 Nature, 621, (Oct. 1991). The ROPME assessment, as summarized in Yearbook ofthe United 
Nations 1992, at 690. There is, curiously, no systematic discussion of this subject in Arkin et al., On Impact supra, n. 

Preliminary U.N. estimates in November 1991 were that 2 billion barrels ofthe country's oil reserves had been 
lost; International Herald Tribune, (Paris), Nov. 21, 1991. 

105. This is the clear conclusion ofthe Pentagon's Interim Report to Congress, at 12-6; and Final Report to 
Congress, supra n. 81 at 625. See also the fuller treatment, suggesting possible changes to the ENMOD Convention, 
in Fauteux, The Gulf War, the ENMOD Convention and the Review Conference, U.N.I.D.I.R. Newsletter, July 1992 at 
6-12. The ENMOD Review Conference in Geneva, 14-18 September 1992, did not propose any modification ofthe 
Convention, which is likely to remain of limited practical significance; and the conference noted that no party had 
invoked the provisions of Article V dealing with international complaints. 

106. Interim Report to Congress, supra n. 93, at 2-5 & 12-6. 

107. Final Report to Congress, supra n. 81, at 625. 

Roberts 275 

108. For such a proposal, see Peter Schweizer, The Spigot Strategy, The New York Times, Nov. 11, 1990. There 
are no tripartite treaties between the riparian States of the Tigris-Euphrates basin (Iraq, Syria and Turkey) on the 
allocation or exploitation of the river waters, but certain treaties on regional matters do have some implications as 
regards development projects on these rivers. In January-February 1990, Turkey had impounded Euphrates waters 
to fill the Atatiirk dam, but although there appear to have been some temporary flow reductions, it does not seem to 
have done so during the Gulf Conflict of 1990-9 1 . Natasha Beschorner, Water and Instability in the Middle East, Adelphi 
Paper 273, International Institute for Strategic Studies, London, Winter 1992/93, at 3943. 

109. Report of the UN. Secretary-General to the President of the Security Council, Mar. 20, 1991 (U.N. Doc. S/22366). 
The report was by Under-Secretary-General Martti Ahtisaari. 

For the view taken by Coalition forces that the entire electricity generation and distribution system was a lawful 
target, see Greenwood, Customary International Law and the First Geneva Protocol of 1977 in the Gulf Conflict, in The 
Gulf War 1990-91, supra, n. 1 at 72-4. For fuller consideration of methods, see Hampson, Means and Methods of Warfare 
in the Conflict in the Gulf, in ibid., at 89-100. 

1 10. Needless Deaths in the Gulf War: Civilian Casualties During the Air Campaign and Violations of 
the Laws of War, Middle East Watch/Human Rights Watch (1991), at 402. 

111. See for example the report by Lewis, Effects of War Begin to Fade in Iraq, New York Times, May 12, 1991, at 

112. Schachter, United Nations Law in the Gulf Conflict, 85 A. J. I. L. 466 (1991). 

113. On the U.S. attitude to Article 56, and to Additional Protocol I in general, see supra, text at nn. 55-61. 

1 14. House of Commons, Defence Committee, Tenth Report, Preliminary Lessons of Operation Granby, 
London, HMSO, July 1991, at 10-11. 

115. Statement on the Defence Estimates, 1991, vol. 1, London, HMSO, July 1991, at 17. 

116. Interim Report to Congress supra n. 93 at 12-3; and Final Report to Congress supra n. 81, at 611. 

117. See e.g. U.N. G.A. Res. 37/215 of Dec. 20, 1982. 

118. Horwitz, report from Kuwait, The Wall Street Journal Europe, (Brussels), Jan. 21, 1992, at 1; also Arkin et 
al., On Impact, supra n. 46, at 132-5. 

In March 1992, a British company, Royal Ordnance, said it had removed one million mines and 6000 tons of 
ammunition from different parts of Kuwait; The Independent, (London), Mar. 13, 1992. 

119. On the use of depleted uranium shells, see the early reports by Cohen in The Independent on Sunday, 
(London), Nov. 10, 1991, at 1 & 2; these were based on a confidential report by the U.K. Atomic Energy Authority, 
written in April 1991. See also Hoskins, With its Uranium Shells, Desert Storm May Have Sown Death, International 
Herald Tribune, (London), Jan. 22, 1993, at 4; the author was medical coordinator of the Harvard Study Team's 
surveys of health in post-war Iraq. See also the discussion of depleted uranium in supra Chap. V, Garrett, The Army 
and the Environment: Environmental Considerations During Army Operations, supra Chap. X, at 2; and Arkin, The 
Environmental Threat of Military Operations. 

120. Repon in The Times, (London), Jul. 28, 1995, at 4. 

121. Interim Report to Congress, supra n. 93 at 13-1; Robinson, 'Draft Articles, with Commentary', paper at 
Ottawa Conference July 1991, at 12; and Kuwait Environment Protection Council, Stateofthe Environment Report, 
supra n. 88 at 31. 

122. On the methods of coping with the oil spills in the Gulf, see the news report by Aldhous, Big Test for 
Bioremediation, 349 Nature, Feb. 1991, at 447 (this method was rejected by the Saudi authorities); Arkin et al., On 
Impact, at 63-6; Horgan, 77te Muddled Cleanup in the Persian Gulf, 265 Sci. Am. 86-8 (Oct. 1991), and Holloway, Soiled 
Shores, same issue, at 81-94. 

123. See, e.g., Bellamy's report from HMS Sheffield in the Gulf, Gulf Wildlife Bounces Back From Disaster, The 
Independent, (London), Jan. 22, 1992; and the discussion of 1991 Gulf War oil pollution, including the 1992 Mt. 
Mitchell oceanographic research expedition which studied the long-term effects of the oil spill, in John Quinn and 
Ronald DeMarco, 77ie Impact of War and Military Operations Other than War on the Marine Environment: Responsible 
Policy Making on the Frontiers of Knowledge, paper at the Naval War College Symposium (Sept. 1995), Newport, RI, at 

124. Linden, Getting Blacker Every Day, Time, Atl. ed., May 27, 1991, at 68-9. 

125. AP report from Kuwait City in The Independent, (London), Nov. 7, 1991 ; Garwin & Kendall, Quenching the 
Wild Wells of Kuwait, 354 Nature, Nov. 1991, at 11-14, . 

126. See e.g. the advertising section on Kuwait in International Herald Tribune, (Paris), Apr. 29, 1992, at 9-10; 
and Kielmas, Kuwait Plunders Oilfields to Destruction, The Independent, (London), May 22, 1992. 

127. Horwitz, report from Kuwait, The Wall Street Journal Europe, (Brussels), Jan. 21, 1992. 

128. Summaries of follow-up action by UNEP, ROPME and other bodies are in UN EP Annual Report 1991, 
Nairobi, 1992, at 8-9, 53 & 79; and in Yearbook of the United Nations 1992, at 690-1, and Yearbookofthe United 
Nations 1993, at 820. 

129. Yearbookofthe United Nations 1993, at 820. 

276 Protection of the Environment During Armed Conflict 

130. Hague Convention No. IV, An. 3, supra n. 62, was one legal basis for the demand for compensation from 
Iraq, including for damage to the environment. 

1 3 1 . By contrast, the Security Council was silent after the war on the subject of Iraq's non-adherence to Additional 
Protocol I. This was for obvious reasons, including the fact that several Coalition powers were not themselves parties 
to the Protocol, the U.S. Government being especially critical of it: they would hardly have been in a position to 
impose it on Iraq, even if they had wished to do so. 

132. See U.S. Department of State Dispatch, issues published in January-March 1991, for several statements by 
President Bush and others favoring the overthrow of the Iraqi regime. 

133. Report on Iraqi War Crimes (Desert Shield/Desert Storm) (Unclassified Version), prepared under the 
auspices of the U.S. Secretary of the Army, Washington, DC, Jan. 8, 1992, at 1 3, 15-18 & 46. This report was submitted 
to the President of the U.N. Security Council on Mar. 19 1993, and was circulated as U.N. Doc. S/25441 of that date. 
[Hereinafter: U.S. Report on Iraqi War Crimes.] In the 14-month interval the report had evidently been circulated 
to some foreign governments as one basis for possible trials, or at least the establishment of a commission of inquiry, 
but no action followed and it was sent to the U.N. 

134. Some discussion of a possible new treaty dealing with environmental damage in war took place at the 
international conference held at King's College, London, on 3 June 1991. See Plant, supra n. 2. 

135. Green, in his paper for the July 1991 Ottawa Conference, supra n. 5, at 14, suggested "the General Assembly 
or even the Security Council charging the International Law Commission, as a matter of urgency, to take up the 

136. International Council of Environmental Law, Law Concerning the Protection of the Environment in Times of 
Armed Conflict, Munich Consultation, Dec. 13-15, 1991, Final Recommendations, at 1-2. 

137. The postponement, announced on 26 November 1991, was due to disagreements on the question of 
Palestinian representation. The International Conference had been intended to address, as one of its two themes, 
respect for international humanitarian law. Among the ICRC preparatory documents containing references to the 
effects of war on the environment was one entitled "Implementation of International Humanitarian Law, Protection 
of the Civilian Population and Persons Hors de Combat" (1991), at 40. 

138. Draft Resolution which was to have been item 4.2 on the provisional agenda of the Commission I, document 
dated Nov. 1, 1991. 

139. U.N.G.A. Decision 46/417 (1991), requesting the Secretary-General to report on activities undertaken in the 
framework of the ICRC regarding protection of the environment in time of armed conflict. See also G.A. Res. 46/54 
of the same date, which referred to the Draft Code of Crimes against the Peace and Security of Mankind, adopted by 
the International Law Commission, Art. 26 of which sought to declare criminal "an individual who wilfully causes 
or orders the causing of widespread, long-term and severe damage to the natural environment." 30 1.L.M. 1584 (1991), 
and Yearbook of the United Nations 1991, at 823 & 848-9. 

140. This paper was published as Protection of the Environment in Times of Armed Conflict: Report of the 
Secretary-General, U.N. Doc. A/47/328 (1992). 

141. G.A. Res. 47/37 (1992), on Protection of the Environment in Times of Armed Conflict, adopted without vote. 
For a summary of U.N. discussions up to and including that resolution, see Morris, Protection of the Environment in 
Wartime: The United Nations General Assembly Considers the Need for a New Convention, 27 Int'l Law 775-82 (Fall 1993). 

142. United Nations Conference on Environment and Development, Rio de Janeiro, 3-14 June 1992, Rio 
Declaration on Environment and Development supra n. 12; and in Grubb et ai, The Earth Summit Agreements: A Guide 
and Assessment, Earthscan for Royal Inst, of Int'l Aff. (1993), at 89. 

143. Protection of the Environment in Time of Armed Conflict, submitted by the U.N. Secretary-General to the 
48th session of the General Assembly (U.N. Doc. A/48/269 (1993)). This 27-page document took up the main elements 
of, and essentially superseded, the ICRC's July 1992 report, supra n. 140. The new document included a 4-page appendix 
of "Guidelines for Military Manuals and Instructions on the Protection of the Environment in Time of Armed 
Conflict." These guidelines were subsequently revised in the light of comments from governments, and issued as U.N. 
Doc. A/49/323 (1994). The full text of this revised version appears in an appendix to Gasser, For Better Protection of the 
Natural Environment in Armed Conflict: A Proposal for Action, 89 A.J.I.L. 641-4 (1995). 

144. See paras 11-14 of G.A. Res. 48/30 of (1993), on "United Nations Decade of International Law," adopted 
without vote; and para. 1 1 of G.A. Res. 49/50 of (1994), inviting States to disseminate widely the revised guidelines. 

145. Kuwaiti woman interviewed on television program, "Dispatches," made by Jenny Barraclough and shown 
in the U.K. on Channel 4 on Jan. 8, 1992. 

146. Interim Reportto Congress, supra n. 93 at 13-1. The Final Report to Congress, supra n. 81, is silent on 
this issue. 

147. The Coalition was reportedly prepared to resort to chemical and/or nuclear weapons, and a plan was reportedly 
made known to the Iraqis to deter a possible Iraqi resort to chemical weapons; Bellamy, Allies "put Iraqis off chemical 
war", The Independent, (London), Nov. 29, 1991. 

Roberts 277 

148. Bothe, The Protection of the Environment in Times of Armed Conflict: Legal Rules, Uncertainty, Deficiencies and 
Possible Developments, paper presented at ICRC Meeting on Protection of the Environment in Time of Armed Conflict, 
Geneva, (Apr. 27-29, 1992). See also the similar observation by Dieter Fleck (Director of International Affairs, Federal 
Ministry of Defence, Bonn), Legal and Policy Perspectives for the Protection of the Environment in Times of Armed Conflict, 
paper presented at British Institute of International and Comparative Law, London, Mar. 26, 1992, at 5-6. 

149. Matheson, Deputy Legal Adviser, U.S. Department of State, in January 1987, supra, text accompanying n. 
56. On the harmonization of rules see also Hampson's conclusion in Means and Methods of Warfare in the Conflict in the 
Gulf, supra n. 108, at 109-10. 

150. "The U.S. concern regarding more restrictive environmental provisions is that they could be implemented 
only at the expense of otherwise lawful military operations — such as attacking targets which require fuel-air explosives 
(FAE) for their destruction." Terry, The Environment and the Laws of War: The Impact of Desert Storm, 65 Nav. War 
Col. Rev. 62 (Winter 1992). 

151. On the ICRC and U.N. developments in 1992-4, see supra text accompanying nn. 141-44. 

Chapter XV 

Comment: The Existing Legal Framework, 

Protecting the Environment During 

International Armed Conflict 

Professor Paul C. Szasz* 

I will now briefly and schematically present my understanding of the existing 
state of the relevant law, then quickly summarize the developments since the 
Gulf War — the immediate trigger of most of the current interest in this subject 
— and finally indicate where, on the basis of the foregoing, the present law appears 
to be in need of strengthening or other improvement. 

First, a schematic summary of the current state of the law — which, incidentally, 
has not changed significantly since the Gulf War. 

A. Norms governing armed conflict: 

(1) Those prohibiting wanton destruction, which go back to the 1899 and 1907 
Hague Peace Conferences, are embodied in treaties that have been widely 
accepted and have been held to be solidly part of customary law that binds even 
those States that are not parties to these agreements. They do not specifically refer 
to the environment but, when observed, largely do protect it and actually 
proscribed most of the environmental abuses committed in the course of the Gulf 
War. 2 

(2) Other, more recent humanitarian treaties, and some others such as the 
ENMOD Convention, specifically require the protection of the environment. 
However, many significant States have not yet become parties to these treaties, 
and their recent vintage and the scarcity of relevant State practice makes it difficult 
to consider them part of customary international law. 

B. Environmental protection norms: 

(1) Treaties relating to or containing general provisions for environmental 
protection, such as the 1982 U.N. Convention on the Law of the Sea, the many 
International Maritime Organization (IMO) conventions regulating the disposal 
of oil in the sea, or similar regional conventions such as those relating specifically 


to the Persian Gulf, which generally do not specify whether and to what extent 


they are meant to apply to or during military conflicts. 

Szasz 279 

(2) There are some environmental instruments that specifically refer to military 
operations, such as the following provisions of the 1982 World Charter for 
Nature: 10 

5. Nature shall be secured against degradation caused by warfare or other hostile 

20. Military activities damaging to nature shall be avoided. 

and the Rio Declaration on Environment and Development: 

Principle 24 

Warfare is inherently destructive of sustainable development. States shall therefore 
respect international law providing for protection of the environment in times of 
armed conflict and cooperate in its further development, as necessary. 

The General Assembly also stressed, in a post-Gulf War resolution on 
"Protection of the environment in times of armed conflict", in which it referred 
to applicable provisions of the 1907 Hague and 1949 Geneva Conventions, the 1977 
Additional Protocol I, the ENMOD Convention, and the Rio Declaration, that: 

destruction of the environment, not justified by military necessity and carried out 
wantonly, is clearly contrary to existing international law 

Though these statements, which are merely declarations of leading 
representative international bodies, basically at best constitute international 'soft 
law,' their adoption by the votes or with the concurrence of representatives of a 
large majority of countries lend some weight to the suggestion that they represent, 
if not yet well-established customary law, at least the shape of lege ferenda. 

This quick summary suggests that the current shape of the international law 
protecting the environment during armed conflict is not really in very good shape, 
with principal reliance still placed on nearly century-old principles of 
humanitarian law evolved when environmental protection was not yet even a 
glimmer in the consciousness of the international community. 

When legal stocktaking after the Gulf War revealed the somewhat tattered 
nature of this twig of international law, there was at first a good deal of scurrying 
around to see what should be done. Greenpeace and others suggested the 
formulation of a Fifth Geneva Convention on the Protection of the Environment 
in Time of Armed Conflict, and there were corresponding suggestions for the 
establishment of an International Green Cross. Fairly soon the matter was taken 
up by both the International Committee of the Red Cross (ICRC) — presumably 
concerned to protect its position as the world's primary humanitarian law 

280 Protection of the Environment During Armed Conflict 

organization — and the U.N. General Assembly, which was pleased to defer in this 
complicated and ticklish field to the ICRC. 

The Red Cross thereupon held a number of expert meetings, and after 


submitting an interim report to the United Nations in 1992 superseded the latter 


by an excellent definitive one the following year. In it, the ICRC in effect rejected 
the formulation of any comprehensive new international instrument and 
suggested instead a number of more modest measures, such as: clarifying the 
relationship between the somewhat similar terminology in the ENMOD 
Convention and in Article 35(3) of the 1977 Additional Protocol I to the 1949 
Geneva Conventions; review of the applicability in armed conflict of international 
environmental law; restriction on the use of mines; protection of cultural sites and 
nature reserves and parks; institutional means of implementing provisions on the 
protection of the environment in times of armed conflict; dissemination of the 
relevant international legal provisions; and the drafting of Guidelines for military 


manuals and instruction — for which purpose it attached a detailed text. The 
General Assembly generally endorsed this approach and in particular the proposed 

Having personally been among those who initially considered that it might be 

best to recodify and expand the existing international law, I must confess that I 

now concede the force of the arguments against such a project. My principal reason 

is that stated yesterday by Mr. Conrad Harper, that because of the need to achieve 

widespread consensus on any new treaty, "the resulting agreement might likely 

resemble a lowest common denominator, decidedly unhelpful in dealing with hard 

cases" and that it might "be a model of ambiguity." It would appear that 

governments are not at present ready to accept significant new obligations in this 

field, and any attempt to press them to do so might indeed be counter-productive. 

In this connection, I would like to recall my experience as the Legal Adviser to 

the 1979-1980 U.N. Conference on Prohibitions or Restrictions on the Use of 

Certain Conventional Weapons which may be Deemed to be Excessively Injurious 

or to have Indiscriminate Effects, which produced the 1980 Convention of the 


same name and the three initial Protocols thereto. There I observed to what 
extent the military members of, or advisers to, national delegations almost 
uniformly took the most conservative stance, opposing any restrictions that could 
conceivably in the future inhibit their own countries' actions, even if the proposed 
restrictions — if observed — would be of great protective value to their own troops, 
and the grounds for wishing to remain unrestrained were at best speculative. There 
is no reason to expect that the situation would be different at any conference 
convened to draft environmental restrictions on warfare. 

This having been said, I would now like to list a number of proposals — some, 
but not all, already mentioned in the 1993 ICRC report — for improving the current 
state of the relevant law. I will divide these suggestions into those pertaining to 

Szasz 281 

the actual conflict (on which most of our discussions so far appear to have focused), 
those relating to the pre-conflict and those to the post-conflict phases — while 
recognizing that, of course, no strict division is possible. 

1. With respect to the conflict or combat phase: 

(a) Encouragement of universal adherence to existing treaties, in particular, the 
1977 Additional Protocol I to the 1949 Geneva Conventions. 

(b) Attempts to clarify existing norms, and in particular the terms 

"wide-spread," "long-lasting/long-term" and "severe," which appear disjunctively 

in the ENMOD Convention and conjuctively in Additional Protocol I and which 


are discussed in the travaux preparatories of the respective instruments — from 
which it appears that no reconciliation of the unfortunately similar terminology 
of these two instruments is possible. 

(c) Clarification of the status of environmental treaties during armed conflict: 
(i) between the parties to such conflict; and (ii) between such parties and neutrals. 
In this connection, it is necessary to examine both the question of the persistence 
of treaty obligations during a state of war between parties thereto, and the 

perhaps more fundamental question of whether such treaties are meant to apply, 

fully or partially, during a state of warfare. In this connection, it may be apposite 

to note that multilateral environmental treaties generally establish erga omnes 

obligations, which two or more parties cannot suspend (except with effect purely 

between themselves) even by agreement — so why should they be able to do so by 

engaging in armed conflict with each other. 

(d) Effective dissemination of the applicable rules to all whose actions or 
decisions might violate them, which can probably be best done by means of 
military manuals such as foreseen in the Guidelines proposed by the ICRC. 

(e) The establishment of an international monitoring organ to function during 
periods of armed conflict, to note, if possible to investigate, and to remind the 
parties concerned of their obligations in respect of environmental protection; such 
functions might, but need not necessarily, be assigned to the International 
Fact-Finding Commission established pursuant to Article 90 of the 1977 
Additional Protocol I. 26 

2. With respect to the pre-conflict phase: 

(a) Attention should be paid to the U.N. General Assembly's 1980 resolution 
on the "Historical responsibility of States for the preservation of nature for present 
and future generations," in which the Assembly, inter alia: 

282 Protection of the Environment During Armed Conflict 

2. [Drew] the attention of States to the fact that the continuing arms race has 
pernicious effects on the environment .... 

There is little doubt that military exercises, in particular extensive target 
practice, are destructive of the environment where they take place. Moreover, 
weapons production facilities, such as nuclear facilities in the United States, may 
for various reasons not be subject to as strict environmental controls as other 
industrial enterprises. Much could probably be done to alleviate these situations 
— though obviously a reduction of war preparations would be most beneficial. 

(b) Attention should also be paid to Article 36 of Additional Protocol I, which 
reads as follows: 

Article 36 — New weapons 

In the study, development, acquisition or adoption of new weapons, means or 
method of warfare, a High Contracting Party is under an obligation to determine 
whether its employment would, in some or in all circumstances, be prohibited 
by this Protocol or by any other rule of international law applicable to the High 
Contracting Party. 

First of all, it should be noted that this obligation thus encompasses the 
environmentally protective provisions of Articles 35(3), 55 and 56 of the Protocol, 
but also refers to all other such provisions of conventional or customary law, 


whatever their source. Second, the methods of determining whether a particular 
new weapon might be unduly offensive to the environment include the by now 


well-established practices of environmental impact assessments and the use of 

the precautionary principle — which evidently can not easily be applied in 

combat situations but which should be fully applicable in pre-conflict ones. 

(c) The setting of targeting rules and the selection of targets or types of targets 
should, as far as possible, be carried out in advance of a particular armed conflict 
and, in any event, of a particular combat situation, at a level of leadership — 
whether military or civilian — where account can appropriately be taken of any 
relevant environmental considerations. Thus, it should not be left to commanders 
of ships to decide whether or not, under certain circumstances (e.g., the 
maintenance of an embargo), tankers may be targeted. 

3. With respect to the post-conflict phase: 

(a) Some type of international, impartial fact-finding procedure should be 
established to determine to what extent and how the environment has been harmed 
during an armed conflict, and all parties to the conflict should be required to 
co-operate in such an exercise. 

Szasz 283 

(b) Procedures should be established for the determination and assessment of 
civil liability on States for the infliction, during a conflict, of undue damage to the 
environment, which damages should be payable to the States damaged or to the 
international community if the damage extends to a res communis. Such liability 
need not necessarily be restricted to the aggressor State, though such a State might 
be required to bear the ultimate burden of any environmental harm caused, as the 


Security Council required of Iraq in the Gulf War. But as between a neutral in 
a conflict (or the international community) and a participant in a conflict who 
caused improper environmental harm (i.e., harm inconsistent with a legal 
obligation of such State), it would seem proper that the latter rather than the 
former bear the burden — though that is not the current view of the International 
Law Commission. 31 

(c) Procedures should be established for the determination of criminal liability 
for individuals and possibly even for States. For the former, the necessary 
institutions could be based on the examples of the ad hoc tribunals that the Security 

32 33 

Council has established in respect of former- Yugoslavia and Rwanda, but a 
more sound foundation would probably be the International Criminal Court now 
under consideration by the General Assembly. 

As to what constitutes environmental crimes, it should first of all be noted that 
Article 85(5) of the 1977 Additional Protocol I specifies that grave breaches of that 
instrument or of the 1949 Conventions constitute war crimes; however, it does not 
identify breaches of its environmental provisions (Articles 35(3) and 55) as grave 
breaches — although "extensive destruction ... of property, not justified by 
military necessity and carried out unlawfully and wantonly" is so classified by 
Article 147 of Geneva Convention IV and is thus a war crime for parties to the 
Protocol. In addition, the I.L.C. had included in its first reading of the Draft Code 
of Crimes against the Peace and Security of Mankind, the "employing of methods 
and means of warfare which are intended or may be expected to cause wide-spread, 
long-term and severe damage to the natural environment" as an "exceptionally 

serious war crime." 

Furthermore, under its work on "State Responsibility," the I.L.C. has 
tentatively classified as a State crime "massive pollution of the atmosphere or of 

the seas""' — though the very notion of the criminal responsibility of States has 

recently been seriously questioned in the Commission. 

(d) Finally, one of the most useful post-conflict environmental measures that 
could be taken would be to make effective provisions for the removal of the 
remnants of war, and especially mines, from erstwhile battlefields. In this 
connection, one might recall a 1982 U.N. General Assembly resolution on 
"Remnants of War" that stated, inter alia: 

284 Protection of the Environment During Armed Conflict 

Convinced that the responsibility for the removal of the remnants of war should be 
borne by the countries that planted them, 

3. Reiterates its support of the just demands of the States affected by the implantation 
of mines and the presence of the remnants of war on their lands for compensation 
from the States responsible for those remnants. . . . 

Though there has been no direct follow-up of that somewhat isolated 
declaration, it should be noted that immediately after the Gulf War cease-fire the 
Security Council demanded that Iraq: 

Provide all information and assistance in identifying Iraqi mines, booby traps and 
other explosives as well as any chemical and biological weapons and material in 
Kuwait, in areas of Iraq where forces of Member States cooperating with Kuwait 
pursuant to Resolution 678 (1990) are present temporarily, and in adjacent 



Such an obligation, of course, is set out in Protocol II (which deals with land mines) 
of the Inhumane Conventional Weapons Convention. 

Of greater general and long- term significance is the conference that the United 
Nations organized this July on the Removal of Land Mines, recognizing that this 
may be the most important post-war environmental restoration that can be taken. 
On the other hand, the first Review Conference of the Inhumane Weapons 
Convention, which is inter alia scheduled to consider an extension of Protocol II 
to that instrument, is unlikely to make much progress over the existing provisions 
— for the majority of poorer countries consider simple contact mines to be a 
weapon of choice for those that cannot afford more complex and expensive 
defensive devices, such as the self-destructing mines that would meet the 
requirements of the existing Protocol. 

Arguably, the present Symposium has — true to a narrow construction of its 
title — so far focused too extensively on the protection of the environment during 
actual combat, i.e., in situations where these concerns can least readily be 
accommodated, and thus arouse the greatest anxiety of the military. By contrast, 
the measures that can be taken before a particular conflict arises, and in any event 
before an actual combat operation has begun, and especially those that can be taken 
after the end of the conflict, appear to have been somewhat neglected even though 
they may well be less controversial and more effective. 


•Formerly the Principal Legal Officer with the United Nations. 
l.See, in particular, the "Martens Clause" set out in the Preamble to the 1907 Hague Convention IV Respecting 
the Laws and Customs of War on Land, 36 Stat. 2227; T.S. 539; Bevans 631, Articles 22, 23(g) and 55 of the Hague 
Regulations attached thereto, as well as Article 53 of 1949 Geneva Convention IV on Protection of Civilian Persons 
in Time of War, 6 U.S.T. 3516; T.I.A.S. 3365; 75 U.N.T.S. 287. 

Szasz 285 

2. It is evidently these rules that are referred to in para. 3 of the "Chairman's Conclusions" of the July 1991 
Ottawa Conference of Experts on the Use of the Environment as a Tool of Conventional Warfare [hereinafter the 
Ottawa Conference Conclusions], which declares that: "There was a shared view that important provisions of 
customary and conventional law had been seriously violated." 

3. In particular, 1977 Additional Protocol I to the 1949 Geneva Conventions, 1125 U.N.T.S. 3, reprinted in 16 
I.L.M. 1391 (1977), Articles 35(3) and 55 of which are directly relevant. 

4. Convention on the Prohibition of Military or Any Other Hostile Uses of Environmental Modification 
Techniques, 18 May 1977, 1108 U.N.T.S. 151; 31 U.S.T. 333; T.I.A.S. 9614; 16 I.L.M. 88 (1977). 

5. It is therefore less clear on what evidence the Chairman of the Ottawa Conference (see supra n. 2) based his 
conclusions in paragraphs 5 and 9, respectively that: "There was a shared view that wanton destruction of the 
environment with no legitimate military objective is clearly contrary to existing international law" and "The 
customary laws of war, in reflecting the dictates of public conscience, now include a requirement to avoid unnecessary 
damage to the environment." See also the texts preceding n. 13 infra. 

6. 21 I.L.M. 1261 (1982), in particular Part XII (Articles 192-237), Protection and Preservation of the Marine 

7. In particular: the International Convention for the Prevention of the Pollution of the Sea by Oil, 12 May 1954, 
327 U.N.T.S. 3; 12 U.S.T. 2989; T.I.A.S. 4900; Brussels International Convention on Civil Liability for Oil Pollution 
Damage, 29 November 1969, 973 U.N.T.S. 3, 9 I.L.M. 45 (1970); London Convention on Civil Liability for Oil 
Pollution Damage from Offshore Operations, 1 May 1977, 16 I.L.M. 1450 (1977). 

8. Kuwait Protocol [to the Kuwait Regional Convention for Co-operation on the Protection of the Marine 
Environment from Pollution, 24 April 1978] concerning Regional Co-operation in Combatting Pollution by Oil and 
Other Harmful Substances in Cases of Emergency, 24 April 1978, 17 I.L.M. 526 (1978). 

9. Article 236 of the 1982 U.N. Convention on the Law of the Sea (supra n. 6), misleadingly tided "Sovereign 
immunity," makes Chapter XII of the Convention inapplicable to any naval or other governmental ships, which 
suggests that at least these provisions do not apply in armed conflict 

10. U.N. General Assembly Res. 37/7 of 28 Oct. 1982, 22 I.L.M. 455 (1982), adopted by a vote of 111: 1 (United 
States): 18. 

11. U.N. Doc. A/CONF.151/26 (Vol. I), part I.I.I; 31 I.L.M. 876 (1992). 

12. U.N. General Assembly Res. 47/37 of 25 Nov. 1992, 5th preambular paragraph, U.N. Doc. A/RES/47/37 (1993). 

13. It is presumably on declarations of this type that the Ottawa Conference Conclusions referred to in n. 5 supra 
were based — though it should be noted that the latter two were subsequent to both the Gulf War and the Ottawa 

14. Aside from the July 1991 Ottawa Conference of Experts referred to in n. 2 supra, the International Council of 
Environmental Law held consultations in December 1991 in Munich that issued a Final Report; these and other 
meetings, some that merely surveyed the terrain and others that considered specific further action, are listed in the 
ICRC report cited in n. 20 infra, endnote 4, p. 22. In addition, there were two reports to the U.S. Congress, respectively 
by the Senate Committee on Environment and Public Works, Gulf Pollution Task Force, on "The Environmental 
Aftermath of the Gulf War", March 4 and 5, 1992, the Executive Summary and Recommendations of which contains 
a section on "International Legal Issues", and by the Department of Defense on the Conduct of the Persian Gulf War, 
Appendix O of which addressed "The Role of the Law of War" and includes a brief section on "Environmental 
Terrorism" (31 I.L.M. 612, at 636-37 (1992)). 

15. See, The Globe and Mail, 6 and 11 March 1991, respectively reporting on and presenting the proposals of 
Patrick Boyer, a Canadian Member of Parliament. 

16. See, U.N. General Assembly Decision 46/417 of 9 December 1991, on the agenda item: "Exploitation of 
the environment as a weapon in times of armed conflict and the taking of practical measures to prevent such 

17. U.N. Doc. A/47/328, 31 July 1992. 

18. U.N. Doc. A/48/269, 29 July 1993, part II. 

19. Id., section II.G (paras. 109-13) and Annex. It might be noted that these conclusions, including the one 
concerning military manuals, were foreshadowed by the Ottawa Conference Conclusions two years earlier. 

20. U.N. General Assembly Res. 48/30 of 9 December 1993, paras. 1 1-14; see also Resolution 49/50 of 9 December 
1994, paras. 11-12. 

2 1 . See Szasz, Environmental Destruction as a Method of Warfare: International Law Applicable to the Gulf War, 15:2 
Disarmament 128 (1992), "Some Proposals" at 151, as well as the other earlier studies referred to in n. 6 to that article. 

22. 1342 U.N.T.S. 7; 19 I.L.M. 1529 (1980). 

23. Understandings concerning the terms used in ENMOD were recorded by the U.N.'s Conference of the 
Committee on Disarmament, A/31/27, Annex I, reproduced in the article in Disarmament (supra n. 24), in endnote 
1 1 at 1 55-56. With respect to Additional Protocol I, the terms in question and their comparison with those in ENMOD 
are discussed in the Rapporteur's Report, O.R XV, p. 268, CDDH/215/Rev.l, para. 27, reproduced with extensive 

286 Protection of the Environment During Armed Conflict 

comments in Commentary on the Additional Protocolsof 8 June 1977 to the Geneva Conventions of 12 August 
1949 (Sandoz, Swinarski, & Zimmcrmann cds. 1987) paras. 1454-58, at 416-19. 

24. This question is so difficult that it was explicidy evaded by Article 73 of the 1969 Vienna Convention on the 
Law of Treaties (1155 U.N.T.S. 331); however, it is interesting to note that Article 75 suggests that there may be 
special obligations in respect of a treaty for an "aggressor State." 

25. It should be noted that the International Council of Environmental Law, in its 1991 Final Report (see supra 
n. 14) "6. ... drew attention to the fact that the rules of international environmental law continue to apply between 
parties to an armed conflict and third parties [and] recommended clarification of the extent to which these rules also 
continue to apply between parties to an armed conflict." 

26. The Commission was established only a few years ago, when 20 parties to the Protocol had made the declaration 
required by Article 90(2); it has not as yet had any business. It should be noted that it is likely that the Commission 
will consist mostly of experts in conventional humanitarian law, and that in any event its competence is limited, in 
respect of environmental protection strictu sensu, to the relevant provisions of Additional Protocol I. 

27. See ICRC report, supra n. 18, para. 36. 

28. See Principle 1 7 of the Rio Declaration, supra n. 1 1 . More importantly, the requirement to make environmental 
impact assessments (originally a U.S. domestic innovation) has been enshrined in numerous international 
instruments, including treaties (see, e.g., those listed in Weiss, Szasz & Magraw, International Environmental Law: 
Basic Instruments and References (1992) at 120-21). 

29. Fuo Principle 15 (id.) and the instruments set out in International Environmental Law (id.) at 121. 

30. Security Council Res. 687 (1991) of 3 March 1991, para. 16. See also Article 75 of the Vienna Convention on 
the Law of Treaties supra n. 24. 

31. Under the heading "International Liability for Injurious Consequences Arising out of Acts not Prohibited by 
International Law" the I.L.C. Rapporteur has suggested the adoption of the following draft Articles: 

Article 24 

Harm to the environment and resulting harm to persons or property 

If the transboundary harm proves detrimental to the environment of the affected State: 

(a) The State of origin shall bear the costs of any reasonable operation to restore, as far as possible, the conditions that 
existed prior to the occurrence of the harm. If it is impossible to restore these conditions in full, agreement may be 
reached on compensation, monetary or otherwise, by the State of origin for the deterioration suffered 

Article 26 

1. There shall be no liability on the part of the State of origin or the operator, as the case may be: 

(a) If the harm was directly due to an act of war, hostilities, civil war, insurrection ... 

(Report of the I.L.C. on its 42nd session, 45 GAOR Suppl. No. 10 (A/45/10), ch. VII, paras. 515-16, at 274-77. In his 
report to the 43rd (1991) session of the Commission, the Rapporteur proposed some restructuring of the provisions 
quoted below, but without any substantive changes (A/CN.4/437, paras. 59 and 61).) 

However, under the heading of "State Responsibility", the Commission is considering the inclusion — apparently 
without a military exception — of: 

. . .a serious breach of an international obligation of essential importance for the safeguarding and preservation of the 
human environment, such as those prohibiting massive pollution of the atmosphere or of the seas. 

(Report of the I.L.C. on its 28th session, 31 GAOR Suppl. No. 10 (A/31/10), ch. III.B.l, para. 78, at 175, reproduced in 
1976:11 1.L.C.Y.B. 95-%). 

32. U.N. Security Council Res. 827 (1993) of 25 May 1993. 

33. U.N. Security Council Res. 955 (1994) of 1 1 Aug. 1994. 

34. U.N. General Assembly Res. 49/53 of 9 Dec. 1994. For the latest text of the Draft Statute of such a tribunal, 
see the I.L.C. report set out in U.N. Document A/49/10. 

35. Report of the I.L.C. on its 43rd session, 46 GAOR Suppl. No. 10 (A/46/10), Ch. IV. D. 1, reproduced in 30 1.L.M. 
1584 (1991), draft Articles 22(2Xd) and 26. It should be noted that the latter Article has aroused sufficient opposition 

Szasz 287 

among governments that the I.L.C. Rapporteur in his latest report (A/CN.4/466 and /Corr.l) suggested the deletion 
of this provision — a matter that the Commission considered at its 47th session and which it then referred to a special 
working group. See 50 GAOR Suppl. No. 10 (A/50/10), ch. II, paras. 38, 1 19-21, 14041. 

36. Report of the I.L.C. on its 28th session, 3 1 GAOR Suppl. No. 10 (A/3 1/10), Ch. III.B. 1 , para. 78, at 175, reproduced 
in 1976:11 I.L.C. Y.B. 95-96. 

37. See 50 GAOR Suppl. No. 10 (A/50/10), ch. IV.B.3, paras. 323-36. 

38. U.N. General Assembly Res. 37/215 of 20 December 1982. 

39. U.N. Security Council Res. 686 of 2 March 1991. 

40. See supra n. 22.. 

Chapter XVI 

Panel Discussion: 
The Existing Legal Framework, Part I 

Professor Myron Nordquist, Stockton Professor of International Law, Naval 
War College: When Professor Grunawalt asked me to serve as a moderator for 
this Panel, he made it clear that I was to moderate and not to speak. So, I will be 
quite business-like and briefly introduce the Panel's three speakers. We have all 
agreed to strict time limits on the theory that we will have questions and comments 
from the floor and that we will all gain something from the interchange. I am 
Myron Nordquist, the current holder of the Stockton Chair here at the Naval War 
College. I am on loan from the faculty of the United States Air Force Academy. 

The first speaker on our Panel is Professor George Walker, Professor of 
International Law at Wake Forest University. George, as many of you are aware, 
is a prior holder of the Stockton Chair. Our second speaker is Professor Adam 
Roberts, Professor of International Relations at Oxford University. Adam has a 
great deal of experience in this area, and I am confident that his remarks will 
stimulate comments from the floor. 

The commentator for our Panel also has had a very distinguished career. 
Professor Paul Szasz was, until 1989, the Principal Legal Officer at the United 
Nations and is currently with the Center for International Studies at New York 
University School of Law. Among the many things that Paul has done that are not 
mentioned in his biograph in front of you is that he served as Legal Counsel to 
the International Conference on the Former- Yugoslavia. With that, may I please 
turn the rostrum over to Professor George Walker. 

Professor George K. Walker, Wake Forest University: Thank you Myron. My 
topic this morning is "The Oceans Law, the Maritime Environment and the Law 
of Naval Warfare." As do many government speakers who come to private 
institutions such as mine, I have a few disclaimers. First of all, the September 6th 
draft of my paper is just that, a draft. I welcome comments before final publication. 
Secondly, my remarks are limited to the topic of the paper; the law of the sea, the 
oceans environment and how these sometimes overlapping bodies of law relate to 
the law of armed conflict at sea, i.e. y the law of naval warfare. Third, I might add 
that I was a member of the group of academics and sea service officers, who 
appeared in private capacity, that produced the San Remo Manual on the Law of 
Naval Warfare. I am not here to endorse the Manual; I own no stock, and will 
receive no royalties, but I wanted to make that disclaimer. Finally, I am not about 

Panel Discussion 289 

to cover even a small part of the substance of what I have written but that fact leads 
me to the principal points I make today. 

There is an enormous volume of law related to the maritime environment, most 
of it in treaties appearing since the 1958 Law of the Sea Conventions. However, if 
we include the 1907 Hague Conventions dealing with bombardment and the like, 
and their successors such as the 1925 Geneva Gas Protocol, the 1935 Roerich Pact, 
the 1949 Geneva Conventions, and so forth, there is an older and deeper legacy of 
environmental protection, at least as it pertains to general human health and 
cultural and historical objects as specific aspects of environmental quality during 

The 1982 Law of the Sea Convention is the first treaty to deal comprehensively 
with maritime environmental problems. For those countries that are or become 
parties, the Convention will be an effective, if "mild" trumping device, much as 
the U.N. Charter, Article 103, declares that Charter norms supersede all other 
treaties, including those treaties related to environmental protection, whether 
already in force or to come into force, which may have special terms but which 
"should be carried out in a manner consistent with the general principles and 
objectives of this Convention." That is from Article 237. In other words, what we 
have in the 1982 Covention is a constitution or a charter for the marine 
environment. The upshot of it is that all agreements in place, or to be negotiated, 
must conform generally to the Convention's generally stated norms. 

The Convention does several things with respect to the environment. First, 
Part XII deals generally with protection and preservation of the marine 
environment. Other aspects of environmental protection are found throughout 
the Convention. If, for example, you look through some of the navigational articles, 
which have already been acknowledged to represent customary law, they too have 
statements related to environmental protection, conservation, and the like. The 
third point about the Convention is that it solidly endorses the absolute sovereign 
immunity of "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." That is language from Article 236, which is found in 
Part XII, the environmental provisions of the Convention, but similar language 
appears in other places. However, many of these provisions also declare that flag 
States bear responsibility for damage, that is, even though the warship itself is 
immune, flag States bear responsibility for any damage they may cause in 
contravention of Convention norms. Article 236 declares that States must adopt 
measures, not impairing operations or operational capabilities, to ensure that such 
vessels or aircraft operate consistently, so far as it is reasonable or practical to do 
so, with the Convention. The importance of that, especially in the non-war context, 
is that if we assume, as I do, that the 1982 Convention is more or less the 
overarching control or standard, and that all treaties in place, or to be put in place, 

290 Protection of the Environment During Armed Conflict 

have to conform to it in substance, those treaties in place that do not have a 
sovereign immunity clause, for example, now must have soverign immunity read 
into them. I think that is fairly important for the confrontation situations that 
may confront the Navies of the world in the future. 

Another point about the Law of the Sea Conventions is that there are clauses 
in the 1958 and in the 1982 Conventions that are often overlooked. These are 
declarations that the treaties are subject to "other rules of international law," as 
well as the terms of the Conventions themselves. For example, Article 87 of the 
1982 Convention, dealing with high seas freedoms, says in part that the freedom 
of the high seas is exercised "under the conditions laid down by this Convention 
and by other rules of international law." I draw three conclusions from this. 

First, the overwhelming majority of commentators, including the International 
Law Commission, have stated that "other rules of international law" refer to the 
law of armed conflict. Therefore, provisions such as Article 88 of the 1982 
Convention state a truism, that the high seas are reserved for peaceful purposes. 
However, high seas usage can be subject to the law of naval warfare when Article 
87 is read into it. Moreover, in no case can either provision "trump" United 
Nations Charter norms, and here again we come back to Article 103 of the Charter, 
and to fundamental Charter principles which include the inherent right of 
individual and collective self-defense in Article 51. 

Second, there is no indication, at least in my research, that the drafters of the 
law of the sea conventions, certainly not in 1958, and likely not in 1982, thought 
that the "other rules" clauses referred to anything else, and particularly not to any 
customary law of the environment. To be sure, under traditional analysis, you have 
to consider parallel custom or general principles in analyzing sources that bear on 
a particular problem, but there is nothing to indicate that there was any intention 
to incorporate general customary law or general principles through the "other 
rules" clauses. 

Third, there are other agreements in being which also include clauses 
exempting, or partially exempting, their application during armed conflict; the 
older ones speaking of "war," others of "armed conflict," and still others of 
"emergency situations," and that includes the NAFTA package of about a year 
ago. This tends to confirm the view of applying the law of armed conflict as a 
separate body of law in appropriate situations. To the extent that treaties dealing 
with the maritime environment do not have such clauses, and there are a few, they 
must be read in the light of the law of the sea conventions that include them; 
recalling that the 1958 High Seas Convention recites general customary norms to 
nonparties to any treaty, and that Convention has an "other rules" clause. 

Moreover, I would submit that the traditional principles of the law of treaties, 
such as impossibility of performance, fundamental change of circumstances, or 

Panel Discussion 291 

armed conflict, may suspend operation of some agreements for the duration of the 
conflict or other emergency situation. 

Let me turn now to problems of environmental standards during conflict. Most 
recently, the San Remo Manual, to be published later this year, endorsed Professor 
Robertson's view, set out in one of the "Newport Papers," published by the Naval 
War College, that the relationship of States not parties to a conflict and belligerents 
can be stated in terms of "due regard," this phrase being taken from the 1982 Law 
of the Sea Convention, Article 87, which states that high seas users have to exercise 
"due regard" for ocean users rights. The idea of "due regard," or words to that 
effect, was used in the 1958 and 1982 Law of the Sea Conventions to describe those 
relationships. Since the 1958 High Seas Convention reflects customary law, then 
presumably the idea of "due regard," at least in the law of the sea context, may be 
read as customary international law. 

The San Remo Manual on the Law of Naval Warfare, also applies a "due regard" 
standard for protecting the environment; belligerents must exercise "due regard" 
for the environment along with customary principles of military objective, 
proportionality, and the rest of it. In general, I agree with both positions of the 
Manual; that is, using a "due regard" formula for interfaces between the law of the 
sea and the law of naval warfare, and between the law of naval warfare and 
environmental concerns. 

I have a couple of caveats, however. First, any general "due regard" standard 
should be subject to any specific customary, treaty or general principles norm. The 
Manual recognizes these in certain contexts, such as in customary general 
principles of proportionality, and in the ENMOD prohibition on military or other 
hostile use of environmental techniques having widespread, long-lasting or severe 
effects. However, since the Manual drafters chose to stop at the water's edge, there 
is little in the Manual, beyond general standards of proportionality, that would 
apply to shore bombardment or air attacks from the sea that would call into play 
treaty and customary rules regarding monuments, and so forth. 

Second, there is no indication in the Manual as to the content of either "due 
regard" standard, or whether the two are considered together as part of a general 
"due regard" standard. Do you first take "due regard," for example, for rights 
pertaining to the Exclusive Economic Zone and then consider "due regard" with 
respect to the environment within that zone? Or, do you take it the other way 

In my paper I have tried to resolve these issues as follows. First, general norms, 
perhaps stated in the U.N. Charter or treaties related to the law of naval warfare, such 
as the Hague Convention related to shore bombardment, would "trump" any general 
"due regard" principle. For example, if we consider that the Geneva Gas Protocol is 
an environmental norm, because it kills horses and cattle as well as people, then under 

292 Protection of the Environment During Armed Conflict 

those circumstances that Protocol would "trump" anything else. Then, of course, 
the U.N. Charter pursuant to Article 103, would "trump" all. 

Secondly, I would argue that because some environmental principles are stated 
in treaties or custom whose parameters may overlap, but not coincide with the 
1982 Law of the Sea Convention's geographic coverage, for example those 
protecting coastal forests, and mangrove swamps do not stop at the water's edge, 
the degree of conflict between maritime environmental protection treaties and the 
1982 Convention has not yet been sorted out. Indeed, the 1982 Convention is not 
now treaty law for many countries, including the United States. 

Third, because there are environmental concerns stated in the navigational 
provisions of the 1982 Convention, for which the San Remo Manual apparently 
would state a separate "due regard" requirement, and because of the sheer volume 
of these agreements, some of them bilateral and others regional, that there should 
be one, general "due regard" requirement, throwing both law of the sea "due 
regard" concerns, such as those for the exclusive economic zone and those for 
environmental concerns, into a common analysis. In terms of anticipated military 
operations, this can be done as part of the military planning process with which 
we are familiar, even as rules of engagement can be customized for particular 
operations or scenarios. Now what I am talking about today is not so much the 
guy on the bridge of the destroyer, but the planner before the operation begins, 
when the operation order is being drafted. 

I would like to speak briefly of the specifics of the law of due regard. The 
National Environmental Policy Act (NEPA), with which many of us are familiar, 
has a factoral approach. I suggest that planners should follow the analogy of the 
Restatement (Second) of Conflict of Laws of the United States, which follows the 
Anglo-American common law rule of applying U.S. constitutional principles, and 
then a statute before any judge-made common law principles are pronounced, 
followed by a factorial rule of reasonableness, whose analogies are in the 
Restatement (Second), Section 6 and Restatement (Third), Foreign Relations Law 
of the United States, Section 403's elaboration which might in a way be due regard 
as a synonym. 

My model would be: first, applicaton of any relevant norms in the United 
Nations Charter anologous to application of Constitutional principles; second, any 
norms stated in jus cogens principles, however you want to define that term; third, 
any rules found in treaties, custom and general principles under traditional 
multisource analysis; and only then, any applicaton of "due regard" or 
reasonableness as part of the proportionality test for which a tentative list is found 
in my paper. The list is very tentative and I sincerely invite your comments on it. 

Although this formulation might seem to push "due regard" out of the picture, 
except for Charter norms, which must be observed in any case, and there may be 
a few jus cogens principles out there, there are very few traditional rules within the 

Panel Discussion 293 

various treaties impacting environmental concerns in the law of naval warfare. 
The result is that "due regard" or "reasonableness" factors will likely come to the 
fore more often than not through proportionality analysis. 

I will now turn to problem areas of the future. First, the proliferation of players. 
Instead of just worrying about what the Security Council and the General 
Assembly have said, we are going to be dealing with a veritable flood of new players, 
including new governments and private sector organizations. 

The second problem beginning to emerge is the notion that the right to a clean 
environment is a human rights issue. I have addressed several aspects of this 
problem in my paper. One is the so-called "derogation clause" which is found in 
some human rights conventions but not all. Another involves the application of 
the law of treaties, such as impossibility of performance, fundamental change of 
circumstances, and law of armed conflict suspension rules for treaties, and the 
attempted utilization of human rights theories to enforce environmental laws. 

The third problem area addressed in my paper involves the carryover of land 
warfare concepts, particularly those in Additional Protocol I, into an analysis of 
environmental protection in naval warfare. I think there is a possibility of that 
trend continuing. 

The last point I would like to make concerns the utility of a new humanitarian 
law treaty for protection of the environment. In my paper I argue that now is not 
the time to do that and I reach that conclusion for some of the reasons that have 
already been stated by prior speakers at this symposium. 

One final comment. Jack provided us with the text of Paragraph 8.1.3, 
"Environmental Considerations," from the newly revised Commander's Handbook 
on the Law of Naval Operations. In general, I would agree with that treatment. The 
one dissent I would have is my reference to what I call the black letter law. That 
is, before you get into the due regard analysis set out in Paragraph 8.1.3, 1 think I 
would follow the model of Restatement Second, Conflict of Laws, Section 6, that 
if you have any black letter norms that apply directly to an issue, such as the 1925 
Geneva Gas Protocol, you never get into the due regard analysis. 

The foregoing summarizes my lengthy paper and extensive footnotes. My 
remarks, and indeed those of others at this Symposium, demonstrate that the 
environmental protection factor is a real issue for planners today and will continue 
to be so for the foreseeable future. While there are few clear navigational beacons 
to show the way in terms of applicable law during armed conflict at sea, there is a 
real opportunity to develop norms that will, at the same time, assure maximum 
permissible use of the Earth's oceans, while protecting the maritime environment, 
and assure each country's security through lawful use of force on the seas. Thank 

294 Protection of the Environment During Armed Conflict 

Professor Nordquist: Thank you George. Our next speaker is Professor Adam 

Professor Adam Roberts, Oxford University: Rather than summarize my paper, 
which deals with numerous aspects of environmental damage in war — with 
particular reference to the 1990-1991 Gulf Conflict — I will take up a few specific 
issues related to the subject of the paper that have come up here in discussions. 

Rear Admiral Wright clearly felt that there was some risk that environmental 
considerations would undermine deterrence postures. On this critically important 
issue, two key points should be stressed. 

First, although it is sometimes discussed as if it was a new issue, protection of 
the environment is a classic "law of war" issue. Environmental damage resulting 
from war can affect innocent civilians. It can affect third countries; and, it concerns 
damage that may endure long after a conflict. All these characteristics mean that 
environmental damage is completely within the area of classic laws of war 

Second, environmental damage in war is often caused by an aggressor who 
wants to hang on to his ill-gotten gains or to destory them rather than return them. 
Hence the scorched earth policy pursued by the Nazis in many areas towards the 
end of World War II, especially in northern Norway; and the Iraqi destruction of 
the oil wells in Kuwait at the very end of the land campaign in 1991. Limiting and 
controlling such environmental destruction, by developing legal restraints on it, 
may indeed serve the cause of weakening the position of aggressors. 
Environmental concerns may thus be compatible with at least some deterrent 

I do not want to imply that it is only aggressors that engage in environmental 
destruction. Yesterday someone said that he could think of no precedent for what 
happened in the Gulf in 1991 . There is a precedent, mentioned briefly in my paper, 
which involved a British Colonel who in Romania in the winter of 1916-17, ran 
riot with a box of matches. He drove a car around destroying any oil wells he could 
find, as well as corn fields. He was at the same time, a British member of 
Parliament. The reason he did it was that Romania was about to be occupied by 
the Central Powers. For his services, he was awarded the Commander of the Grand 
Star of Romania Medal. 

Irrespective of the critical importance of environmental issues in war, I agree 
strongly with Chris Greenwood that neither the act of destruction of oil facilities, 
nor every act involving environmental damage, necessarily constitutes a violation 
of the laws of war. The existing law leaves space for a degree of latitude in the 
pursuit of legitimate military purposes. While new rules in the two 1977 
agreements (Additional Protocol I and ENMOD) may have some value in respect 
of certain particular cases of environmental destruction, or possibly certain 

Panel Discussion 295 

particular cases of use of the environment as a weapon, for the most part the issue of 
environmental destruction is addressed in long-standing and much simpler rules, 
partuclarly 1907 Hague Convention IV and the 1949 Geneva Conventions. These 
include, particularly, a rule mentioned yesterday by many people: Article 147 of the 1949 
Geneva Convention IV declares that extensive destruction of property not justified by 
military necessity is a grave breach. The word "environment" does not appear in the 
other rules, but that is not necessary for them to have relevance to the environment. 

Many individuals and institutions have understated the value of these older 
provision. At the time of the 1991 Gulf War, for example, in dealing with the matter 
of environmental destruction many people, including the International Committee 
of the Red Cross, got the balance wrong by putting slightly too much emphasis on 
1977 Additional Protocol I, which, of course, was not technically in force. 

Since the 1991 Gulf Conflict, the ICRC has had three meetings of experts to discuss 
the protection of the environment in time of armed conflict. This work has led to a 
number of resolutions by the U.N. General Assembly, to which I refer in my paper. 
The approach taken by the ICRC has been a very good one, stressing the illegality of 
many acts of environmental destruction under long-established rules of international 
law, as well as the importance of ratification of more recent conventions. 

I now want to look at the actual events of the 1991 Gulf War, highlighting the 
issue of the failure of deterrence. There was a tendency among many before the 
war to exaggerate the nature of the environmental threat. Such exaggerations 
reflected the perennial fascination of man with apocalyptic threats such as 
environmental catastrophe. However, it is not necessary to warn of a global 
environmental catastrophe in order to justify opposition to acts of environmental 
destruction and despoliation. Crying of "wolf did considerable damage. It meant 
that, in many minds, concern with the environment was associated with 
opposition to the war and to the attempt to reverse the Iraqi occupation of Kuwait. 

Some of the deterrent threats made before the war by the Coalition powers 
were concerned with dissuading Iraq from engaging in acts of environmental 
destruction. The clearest example was the famous Bush letter that was not 
accepted in Geneva on 9 January 1991. There was a Security Council Resolution 
on 29 October 1990 threatening legal action in respect to Iraqi violations of 
Geneva Convention IV. 

The Bush letter warned Iraq not to commit acts of destruction of the oil wells, 
yet Iraq was not deterred. Why not? Iraq was successfully deterred from engaging 
in other unlawful actions, in particular use of chemical weapons. One might say 
that part of the explanation is that the Coalition powers in the end put much less 
emphasis on preventing environmental destruction than they put on other forms 
of deterrence, including against the use of nuclear, bacteriological and chemical 

296 Protection of the Environment During Armed Conflict 

I may be wrong, but I am told that not a single one of the many millions of 
leaflets that were dropped on Iraqi positions during the war tried to prevent acts 
of environmental despoliation, such as the destruction of the oil wells. One can 
point to other failures to press this issue hard enough. Perhaps this was because it 
did not involve the saving of lives of Coalition troops. 

For the Coalition leaders, the prime issue was deterring Iraq from using 
chemical weapons. They probably felt that they could not make equal threats in 
respect to acts of environmental destruction. They could only use the ultimate 
threat in respect of one class of action. The result was that environmental 
destruction fell through the cracks of deterrence. 

Now I will discuss a few post-war implementation questions. After the 1991 
Gulf War there were no trials of the major figures responsible. The international 
community instead chose to follow the path of reparations which, in many 
respects, is unsatisfactory: it does not effectively punish those directly responsible 
for the acts of environmental despoliation. 

The United States reported a whole range of Iraqi war crimes, including acts of 
environmental despoliation, to the United Nations in March 1993 in a little noted 
document which I happened to pick up quite by chance in the U.N. Building. 
However, we have not seen a satisfactory implementation of international 
standards. This underlines the more general point that implementation of the law 
of war is proving to be an extraordinarily difficult issue in the contemporary world. 

In conclusion, I would just make two general observations about 
implementation of the laws of war in the contemporary world, both of which I 
think are controversial, especially to lawyers. 

The first is that it is the case that there is much more of a link between the laws 
of war,;'tts in belb, and the law about resort to war,;ws ad bellum, then is generally 
admitted. Often one State's illegal behavior in war leads to a decision by other 
powers to engage in hostilities as the only way of effectively stopping the offending 
State's behavior. 

Second, the 1991 Gulf War illustrates the possiblity, not extensively discussed 
in the literature, that the laws of war can be seen as a set of professional military 
standards to be applied, even if necessary unilaterally, by one side in a war. This 
is especially the case in coalition actions. We had reinforcement of that approach 
in the discussion yesterday of Operation Sharp Guard in the Adriatic. In coalition 
actions, there may be a special value in observing the laws of war because it is a 
means of maintaining support for the coalition, both within the countries involved 
and between them. 

Professor Nordquist: Thank you Adam. I will now turn the rostrum over to our 
commentator, Professor Paul Szasz — Paul? 

Panel Discussion 297 

Professor Paul C. Szasz, New York University: Thank you very much Myron. 

The principal speakers have given excellent presentations of the subject of our 
panel: "The existing Legal Framework on Protecting The Environment During 
International Armed Conflict." I agree with their principal conclusions, on which 
I will elaborate a bit later. However, I do have one or two little nits to pick with 
both of them. 

Professor Walker referred once or twice to the "trumping effect" of the U.N. 
Charter provisions over other potential environmental principles, referring to 
Article 103 of the Charter, which states that that treaty supersedes all other treaties, 
earlier or subsequent. 

He refers, in particular, to Article 51 of the Charter and the self-defense 
provisions therein. But when one looks at Article 51, it does not create the right 
of self-defense. Article 51 states that nothing in the Charter shall derogate from 
the existing underlying right of self-defense. But it clearly does not create a right 
to self-defense. Therefore, it cannot be said that the Charter says that self-defense 
justifies anything that could not be justified otherwise. Moreover, even if that were 
so, I do not believe that the Charter authorizes the use of force so as to violate 
humanitarian considerations, anymore than Article 42 authorizes the Security 
Council to override humanitarian treaties. I do not think that the Security Council 
could order the destruction of civilians as an Article 42 action. So I consider this 
"trumping effect" as not really relevant or significant. 

The other point I would challenge is that any distinction between the rules of 
naval warfare and the rules of land warfare could make a difference regarding the 
protection of the environment. I think that the justification for any distinctions 
has largely disappeared. When a U.S. naval vessel can send missiles 250 miles 
inland to hit targets near Banja Luka, one cannot say that different rules should 
apply to what may be done to a particular target, if the missiles had been fired by 
an airplane, or from ground artillery from 10 or 20 miles away over the Croatian 

The rules for protecting the environment must depend on the location of the 
environmental damage. If the potential target is an oil tanker, it should be just as 
illegal to hit it from a shore battery as it is to hit it from a naval battery or an 
airplane. Therefore, I think that these distinctions, to the extent that they 
exist — and I will not argue about this because it is not a field in which I am 
expert — will have to be eliminated. The applicable rule should always depend on 
the target, and not on whether the attack comes from a naval, air or land force. 

Coming now to Professor Roberts' presentation, I also have some quibbles. One 
is the example he gave about the British officer in Romania torching oil wells. Two 
things should be said. First of all, the circumstances were that Romania was about 
to be taken over by the enemy and the Romanians later rewarding him for that 
action. This is an example of self-scorching of territory, the scorched earth policy, 

298 Protection of the Environment During Armed Conflict 

mentioned yesterday, used by the Russians to scorch their own earth as they were 
retreating. This is not the same as scorching someone else's territory. Moreover, 
burning the wells was not recognized as an environmental threat then and, indeed, 
it was not. At that time, the CO2 overload of the atmosphere was not nearly as 
dangerous as it is now. 

Moreover, of course, the British officer, Colonel Griffiths, did not consider 
environmental matters. The Iraqis did. They made the threat that what they were 
about to do might cause a global winter. They knew they were doing something 
destructive to the envrionment. In fact, they thought their actions would be far 
more destructive to the environment than they actually were. So I think the 
Romanian example is not really appropriate here. 

As to mere reliance on the Hague Rules, I think we can show some examples 
where they are insufficient to protect the environment. For instance, releasing a 
great deal of ozone destroying chemicals into the atmosphere will not be destroying 
any one's property because it cannot be said that the ozone layer is somebody's 
property. Furthermore, the value of the property destroyed may be quite 
disproportionately slight compared to the environmental damage caused. Thus, 
if the environmental damage caused is far greater than the value of the property 
destroyed, there might not be much of a case under the Hague Convention, making 
it necessary to find some other basis for protecting the environment. 

Now I would like to briefly summarize my understanding of the state of the 
existing law to protect the environment during warfare. First of all, there are rules 
governing armed conflict, the so called humanitarian rules. Some generally 
prohibit wanton destruction. These go back to 1 899, 1 907 and perhaps even earlier. 
They are embodied in treaties that have almost universal participation and, in any 
event, are generally considered to have become solid parts of customary 
international law binding even nonparties to these treaties. The Hague 
Conventions do not specifically refer to the environment, but they do, incidentally, 
protect the environment if they are observed. 

On the other hand, there are other humanitarian law instruments that are more 
recent. These include the ENMOD Convention and Additional Protocol I to the 
Geneva Conventions. Each contain specific environmental provisions, but have 
not received all that many ratifications. Because of the paucity of ratifications, they 
cannot be said to have become part of customary law. Consequently, they do not 
bind any countries, except those parties to the treaty. As we know, in the 1991 Gulf 
War, Iraq was not a party to many of the relevant treaties, while the United States 
was not a party to Additional Protocol I. Therefore, it was difficult to rely on the 
environmental principles set forth in those treaties. 

Secondly, there are the treaties and norms relating generally to environmental 
protection, such as those expressed in the 1982 Law of the Sea Convention and the 
oil dumping and oil pollution conventions that originate with the IMO, as well as 

Panel Discussion 299 

the UNEP-sponsored 1978 Kuwait Oil Pollution Protocol to the Regional 
Maritime Environment Convention that covers the Persian Gulf. As to these, the 
problem is that they do not indicate whether or not, and to what extent, they are 
meant to apply during an international armed conflict. 

Finally, there are among the environmental instruments, some that specifically 
address the environment in time of war, such as the 1982 World Charter of Nature 
and the 1992 UNCED Declaration. Unfortunately, these are simply declarations 
of high-level international plenary bodies, and thus really constitute only the 
softest of soft law. At most, they may indicate what the future law might be. As to 
solid law, we must simply go back to the Hague Coventions. 

Following the Gulf War, with its major and deliberate environmental 
destruction, there was a flurry of legal stock-taking to see what had gone wrong 
and to determine whether the existing law was good enough. Greenpeace and 
others proposed the formulation of a fifth Geneva Convention. Others suggested 
the establishment of an International Green Cross to protect the environment. 
Fairly quickly, these initiatives were taken up by the International Committee of 
the Red Cross (ICRC) which, of course, was concerned to protect its own unique 
status as the champion of humanitarian law — as expanded through Additional 
Protocol I to include some general environmental concerns. It was also taken up 
by the U.N. General Assembly, which rather cautiously decided to give the ICRC 
the lead to see what it could produce. 

Within two years, the Red Cross produced a comprehensive report on the 
subject (set out in U.N. Document A/48/269 of 29 July 1993), which the General 
Assembly then substantially endorsed. I would commend that document to 
anyone interested in the subject matter of this panel, as it is very complete. The 
report also summarizes the frantic legal activity starting with the spring of 1991. 
It concludes that the time was not opportune for codifying and/or developing this 
area of the law, but that a number of remedial and other measures should be taken 
to patch up and reinforce the existing archaic regime. Many of the proposals it 
discusses were first articulated at the now notorious 1991 Ottawa Conference. 

Actually, if one compares the Red Cross meetings with other related 
conferences, one finds many similarities. This is because the experts convened by 
the ICRC are likely to be the same persons who participated in previous and 
subsequent conferences on the same subject. 

Having been initally amongst those who advocated a reformulation and 
expansion of the existing laws through a new treaty, I would now like to confess 
and concede the force of the arguments against such a project. My principal reason 
for this retreat is that stated yesterday by the Legal Adviser to the State 
Department, Mr. Harper. At present, governments would simply not be ready to 
assume any serious new obligations in this field. Any attempt to formulate a new 
treaty at this time would likely be regressive and, thus, counter-productive. 

300 Protection of the Environment During Armed Conflict 

As the Legal Advisor to the 1979-1980 U.N. Conference on Inhumane 
Conventional Weapons, I saw the extent to which the military advisers jealously 
opposed the imposition of any restrictions that could inhibit military actions their 
forces might conceivably engage in, even though such restrictions would, if 
observed, greatly protect the troops whose commanders they were representing. I 
am afraid the same thing would happen if, at this stage, in this atmosphere, an 
attempt were made to convene a conference to improve the law protecting the 
environment during warfare. 

This having been said, I would like to summarize a number of proposals, some 
of which are set out in the 1990-93 ICRC report, for improving the current state 
of the law. I will first direct my suggestions to the state of actual combat, on which 
we seem to be concentrating most, but will also cover, as was suggested in our 
second panel yesterday, the pre- and post-combat phases. With respect to the 
combat phase I would suggest that the following be done. 

First, there should be a campaign to promote adherence to the existing treaties, 
particularly to Additional Protocol I and to ENMOD, so that they cover 
substantially all countries in the world. 

Second, an attempt should be made to clarify the existing norms, particularly 
the terms "widespread," "long-lasting" and "severe," which appear disjunctively 
in the ENMOD Convention and conjunctively in Additional Protocol I. It is 
understood that these terms were meant to be different in the two conventions, as 
shown by the respective travaux. 

The ICRC suggests that the committee of experts that may be established under 
the ENMOD Convention, straighten out these differences. I have some doubts 
about that suggestion because it would likely be one-sided. 

Most important is to clarify the status of environmental treaties during armed 
conflicts. These include general environmental treaties, as well as the 
environmental provisions of the Law of the Sea Convention, the oil dumping rules, 
and regional seas conventions. First of all, during a status of war, what is the state 
of these conventions as between parties to the conflict, assuming that both are 
parties to the treaty in question? And secondly, what is the status between such 
parties and neutrals? In that connection, one must consider that during wartime 
certain treaties are suspended as between the parties to the conflict, and also, that 
certain rules may simply be inapplicable to a conflict situation. 

On the other hand, one should also consider that some of the obligations 
established by environmental treaties, in fact, all those deriving from multilateral 
treaties, are ergo omnes obligations. Just as two parties bound by such an ergo omnes 
obligation could not, by agreement between themselves, suspend that obligation, 
why should they be able to do so just by going to war with each other? 

Turning now to the ICRC proposal for the wide publication of the 
environmental rules relating to warfare and, in particular, the formulation and 

Panel Discussion 301 

distribution of manuals on environmental protection during combat. Indeed, the 
1993 ICRC report has annexed a 3-page set of guidelines showing how such a 
manual should be formulated. That enterprise should be undertaken quite 
seriously. It is one of the most important measures, because, as was pointed out 
yesterday, all rules are meaningless unless they are known and understood at the 
level of the commanders who will implement them. 

There is a need to establish a supervisory organ to assist the parties in 
implementing these provisions during wartime. One candidate, not necessarily 
the best nor the only existing one, is the International Fact-Finding Commission 
established pursuant to Article 90 of Additional Protocol I. 

Turning now to the pre-combat phase, there are, first of all, the rules restricting 
the right to engage in military conflicts and those designed to inhibit preparation 
for war. In this connection I would like to call attention to a little known General 
Assembly Resolution on the "Historical Responsibility of States for the 
Preservation of Nature for Present and Future Generations." Therein the 
Assembly noted that the continuation of the arms race, including the testing of 
various types of weapons, especially nuclear weapons, and the accumulation of 
toxic chemicals, adversely affect the human environment and damage the 
vegetable and animal world; it therefore proclaimed the historical responsibility 
of States for the preservation of nature for present and future generations and drew 
the attention of States to the fact that the continuing arms race has a pernicious 
effect on the environment, and reduces the prospects for the necessary 
international cooperation in preserving nature on our planet. 

I do not really think that this quite sensible statement is of much use. 
Nevertheless, it should be emphasized that simply preparing for war is itself apt 
to be environmentally destructive. 

A more pertinent and practical rule, regarding the development of new 
weapons, is Article 36 of Additional Protocol I. It is rarely mentioned, but I 
consider it important. Article 36 reads as follows: "In the study, development, 
acquisition or adoption of new weapons, means or methods of warfare, a High 
Contracting Party is under an obligation to determine whether its employment 
would, in some or in all circumstances, be prohibited by this Protocol or by any 
other rule of international law applicable to the High Contracting Party." In other 
words, one should not develop weapons whose use is prohibited for humanitarian 
reasons. Though this caution was not addressed to environment consideration, 
but, is formulated within the context of general humanitarian rules, it can equally 
apply to environmental restrictions. 

In this connection, I would like to call attention to environmental impact 
assessments and to the precautionary principle. Neither of these makes any sense 
in a combat situation. But in a non-combat situation, when new weapons are being 

302 Protection of the Environment During Armed Conflict 

prepared, it makes eminent sense to make such assessments and even to apply the 
precautionary principle. 

Finally, as to the development of targeting rules, to the extent that these are 
made at the policy level in the Pentagon, there is an opportunity to consider 
environmental principles that a company commander or battleship captain would 
not necessarily be able to take into account. For instance, the point made yesterday 
regarding how to stop an oil tanker. Do you shoot at it, or do you not shoot at it. 
That decision should really be made back home and should be conveyed to the 
captain of the blockading vessel. 

As to the post combat situation, I make the following suggestions. First, it might 
be useful to establish an international fact finding body to determine after every 
such conflict what happened from the environmental point of view. We are four 
or five years past the Gulf War and there are still questions about who did what to 
whom. If there had existed some sort of international fact finding organization it 
might have been used for this and other conflicts. 

Second, is the liability of States, which might even relate to damage that was 
lawfully inflicted. Thus, even if it is concluded that in a war situation a particular 
oil pollution convention does not apply, if a State in the course of armed conflict 
pollutes an area, there is no reason why that State should not pay for the clean-up 
or for whatever other damage resulted. Why should a State be allowed to cause 
damage and then not compensate neutrals or innocent parties? 

Third, criminal liability. I think we now have a much better basis for this than 
we had at the time of the Gulf War. Since then, two war crimes tribunals have been 
established and the General Assembly is well on its way to establishing an 
international criminal court. In this regard, I might call attention to a Mock 
International Criminal Tribunal conducted by the American Bar Association in 
1991, to try Saddam Hussein on a variety of charges, including for environmental 
war crimes. It was an interesting exercise. 

Fourth, is the question of the remnants of war. I would like to call attention to 
a General Assembly Resolution, again not well known, in which the Assembly 
states that it was: "Convinced that the responsibility for the removal of the 
remnants of war should be borne by the countries that planted them, recognizing 
that the presence of the material remnants of war, particularly mines, on the lands 
of developing countries seriously impedes development efforts and causes loss of 
life and property." Further, it regrets that no real measures had been taken to solve 
the problem of remnants of war, despite the various resolutions and decisions 
adopted by itself and by the Governing Council of UNEP. Finally, the Assembly 
reiterated support for the just demands of the States affected by the implantation 
of mines and the presence of remnants of war on their lands, and called for 
compensation to be paid by the States responsible for leaving those remants. This 
is an important subject and ought to be pursued further. You may know that a few 

Panel Discussion 303 

months ago, in June 1995, a meeting on the removal of mines was sponsored by 
the United Nations to address this problem. 

These are the proposals that I would make for protecting the environment from 
the effects of international armed conflict. Thank you Mr. Chairman. 

Professor Nordquist: Thank you. Our Commentator has, I am sure, provoked a 
couple of specific responses from our speakers. What I would like to do, as he has 
raised so many fundamental points, is to ask, first, that the audience be given an 
opportunity for questions and comments. 

Vice Admiral James H. Doyle, Jr., U.S. Navy (Ret.): Professor Szasz may have 
retreated, but it is probably only a millimeter. You have raised a number of issues with 
which I take issue. We do not have all day, however, so I will focus on just one or two. 
I think to pursue the clarification of trying to find the true meaning of "severe," 
"widespread," and "long-term" is a futile exercise and will get us nowhere. 

Actually, I think the standard that we have in both the San Remo Manual, which 
relates to military necessity, and the one that Professor Grunawalt passed out the 
other day, is a much more realistic standard. I would submit that it will give much 
more protection to the environment in specific situations than any effort to try to 
find the true meaning of "widespread," "long-term," and "severe." 

I would, as a matter of fact, like to see Additional Protocol I eliminate that 
standard because I think it is meaningless. I think also that I must defend the 
military against the allegation that we are bound and determined to prevent any 
modification or improvement in the laws of war. I think from the speakers that 
we have heard, you will find there is a great deal of difference between assessing 
the context and situation and the taking of action as a policy matter, rather than 
an abstract legal principle. I believe that it has been shown that there is a much 
greater appreciation of the environment, and the necessity to protect the 
environment to the maximum extent, during armed conflict. 

Professor Szasz: I will respond very briefly. On the point of pursuing better 
definitions of "widespread," "long-term," and "severe," this is really not my 
suggestion. It is one that the ICRC repeated several times, even in its latest report. 
The General Assembly also endorsed the idea that such clarification should be 
pursued. I, myself, share some of Admiral Doyle's doubts on that point. 

I can say that at the 1979-1980 Conference I really saw the military advisers 
absurdly defensive of some weapons that were clearly inhumane and that the 
military currently clearly did not want to use, merely because it was conceivable 
that in the future some situations might arise in which such weapons might be of 
some use. I do not want to make a general accusation of all militaries at all times, 

304 Protection of the Environment During Armed Conflict 

but it is my feeling, as I believe it also was of Mr. Harper, that if you now tried to 
get a more extensive treaty, the results would probably be counter-productive. 

Professor Michael Bothe, Johann Wolfgang Goethe University, Frankfurt, 
Germany: I have two comments. First, the sea-land dichotomy. I completely agree 
with Professor Szasz that what counts is the target. As far as targets on land are 
concerned, the "due regard" rule of the law of the sea is not applicable. The "due 
regard" rule of the law of the sea is really a development of the classical law of the 
sea in circumstances where you had competing users making war and peace over 
navigation rights, as a kind of competing use, which have to be some how 
accommodated. That is the basic justification of the "due regard" rule. 

This is not applicable to any damage caused on land. As far as damage on land 
is concerned, which may be caused by shooting or by releasing oil from a tanker, 
it is a good old rule that neutral territory is inviolate. This means a protection of 
the neutral against the effects of war. The fact that two countries make war between 
each other does not give them any right to cause damage to neutral territory. The 
relationship between the parties to a conflict and neutral States is governed by the 
laws of peace. There are exceptions, mainly in the field of naval warfare. However, 
there is no rule of customary international law permitting States to cause collateral 
damage to neutral territory. 

My second point is the question of "new law." I think what all the speakers have 
very convincingly shown is that this is a good subject for discussion. Why is this 
a good subject for discussion? Because there are uncertainties to say the least. It 
would be quite an appropriate purpose of new law to resolve those uncertainties. 
The main argument I have heard against the development of the law yesterday, 
and this morning, is that, for the time being, it is not advisable to try to get new 
laws because that would be regressive and because States do not want to undertake 
additional obligations and so on. Granted that may be so, but the fact that States 
are reluctant to accept something does not necessarily mean that it is not necessary 
to try. 

We can then surrender to the objective necessities of universal diplomacy and 
the like, but there is no reason to be really content with this situation. That being 
so, I am, of course, very much tempted by Professor Szasz's approach which asked; 
"if we cannot achieve a treaty which might be desirable, what can we do in the 
meantime?" I agree that there are a number of steps which can be taken for the 
purpose of clarifying the law by whatever means. I think the military manuals are 
a good place to start in addition to consultation between countries concerning 
rules of engagement, in certain situations. There is also the approach of utilizing 
conferences of these parties to environmental treaties. In reviewing those treaties, 
pay more attention to the question of what happens within the scope of the treaty 
in the event that an armed conflict breaks out. Thank you. 

Panel Discussion 305 

Professor Nordquist : Thank you. May I ask Professor Walker if he would respond 
perhaps to the first point you made, then Professor Roberts, maybe you can 
comment on his second point. 

Professor Walker: In discussing "due regard," I come back to my first disclaimer. 
What I was talking about primarily was the law of the sea, the law of naval warfare, 
and the environment. 

Professor Roberts: On Professor Bothe's second point, about the desirability, or 
otherwise, of a new convention, I think it is mischievous of him to imply that those 
who are skeptical about the value of a new convention are skeptical exclusively, or 
even largely, on the grounds that States do not want it, or are reluctant to embark 
on a new negotiation. There is another ground, which is that nobody could quite 
see the desirable shape of such a new convention or how to make a serious advance 
on the existing treaty provisions. 

Professor Ivan Shearer, University of Sidney: I just want to make two or three 
very brief comments. The first on Professor Walker's paper, which I have not yet 
read, but the summary was very interesting. I want to comment on the apparent 
disagreement between Professor Walker and Professor Szasz over the nature of 
Article 51 of the U.N. Charter as a kind of a "trump." Maybe the true explanation 
is that the law of armed conflict, including the right of self-defense, is lex specialis, 
viewed against the lex generate of environmental and other laws that apply in 

So one of the things we are looking at here, I think, is to what extent 
environmental protections are incorporated in the lex specialis of the law of armed 
conflict through the principles of military necessity and proportionality. 

The second comment that I want to make concerns Professor Roberts' reference 
to Geneva Convention IV of 1949, Article 147. Several people have mentioned this. 
I am sure he did not mean to do so, but it came out as a general rubric against 
environmental destruction. Of course, it has to be remembered that that provision 
relates only to the duties of an occupying power vis-a-vis civilians. Now, that, of 
course, was the situation in Kuwait. It leads to an interesting question of whether 
there is a shift from the duties that Iraq owed Kuwait under Article 147. Is there 
a shift once the occupying power begins defending that territory against the 
attempts by the lawful owners to reoccupy it? Does one then move into a different 
world where Article 147 does not apply, but some other rules do? I just throw that 
open for discussion and would be interested to see if anybody has an explanation 
for that. The background of Article 147 is to be found in the Hague Conventions, 

306 Protection of the Environment During Armed Conflict 

which refer to the occupiers as usufructuary. So, I think there is an unresolved 
conflict there. 

Finally, I wonder whether Professor Roberts really thought it was a mistake for 
the allies not to have specifically warned Iraq against environmental damage. What 
else should we have warned him not to do? We were dealing with someone who 
was not entirely rational. At least we thought he was not entirely rational. To give 
him a whole list of things that he should not do might only put ideas into his head. 
Thank you. 

Professor Nordquist: Thank you very much. We have to give our panel an 
opportunity to respond to what has been said to this point. 

Professor Roberts: Both those points are well taken. On the first, within the limits 
of time available, I was using Article 147 of the Geneva Convention as an example 
of the fact that there are long-established provisions which cover many, but I would 
agree with those who have said not necessarily all, cases of environmental 
destruction. You may be right that at a time when the occupation of Kuwait was 
ending and a struggle for reconquest of Kuwait was beginning, you could argue 
whether the applicable law was that relating to occupied territory, or that relating 
to armed conflict. There are provisions, including those in the Hague Convention 
of 1907, which would govern the situation of armed conflict. So one does not rely 
on one provision alone. 

As regards the proposition about putting ideas in Saddam Hussein's head, I 
think, unfortunately, there were quite a lot of ideas there already. The Coalition 
did specifically warn Iraq about environmental destruction, or at least about 
destruction of the oil wells, in George Bush's letter of 9 January 1991. So there was 
a very clear warning. It is a question of judgement whether that letter could or 
should have been followed up. A number of other matters were successfully 
pursued in the leaflet campaigns including the issue of non-use of gas and the very 
successful campaign persuading Iraqi soldiers that if they left their vehicles they 
would be a great deal safer than if they stayed in them. To me, it is still something 
of an oddity that there was no effort made to persuade officers within Kuwait, who 
were going to be ordered to carry out the task, that the destruction of the oil wells 
would be a war crime. That simply was not spelled out with clarity to the people 
who counted. 

I agree that the threat of destruction of the oil wells probably could not have 
been made a central issue to the same extent as the threat of use of gas. But 
nonetheless, it would not have been putting ideas into Suddam Hussein's head. 
As Bill Arkin reminded us yesterday, he had explicitly planned this oil destruction 
from August 1990 and had publicly threatened the Coalition with it in September 

Panel Discussion 307 

Professor Szasz: I would like to comment on the issue of Article 5 1 . 1 do not doubt 
it is lex specialis, but all I was saying is that Article 51 does not create a right of 
self-defense. Therefore, U.N. Charter Article 103 does not give self-defense a 
higher status than other activities of States. Self-defense, and all that goes with it, 
has to stand on its own legal feet. It can not rely on the Charter to exempt it from 
rules governing other military actions. 

Dr. Hans-Peter Gasser, International Committee of the Red Cross: I would 
like to say a few words about where the ICRC stands now and what we have on the 
program. I have a copy of the 1993 report mentioned by Professor Szasz. If the 
organizer would be so kind to Xerox it, it could be at the disposal of everybody. 

In 1993, many points were brought out which have already been mentioned. 
First, the relation between the ENMOD Convention and Additional Protocol I. 
We are not really pursuing that matter and we leave it to others. No action is 
planned in this respect. 

Second, the applicability of armed conflict to international environmental law. 
There is no question that general environmental law continues to be binding in 
armed conflict. There is indeed a necessity to clarify the law of the subject. 

Third, the protection of the environment and restrictions on the use of mines. 
The mines issue, which generally has not been directly associated with the 
environmental question, of course, is actually very much associated with it. As you 
know, next week the Review Conference of the 1980 Conventional Weapons 
Convention meets in Vienna. The ICRC is on record for having called for a 
complete ban on anti-personnel land mines for humanitarian reasons. But also, 
the environment is being used as a kind of vehicle which must also be protected 
in order to protect human beings which move around in the environment. 
Therefore, there is the proposal to put a complete ban on anti-personnel land 
mines. Most governments do not follow that line of thinking. However, we remain 
absolutely convinced that with time, the military will understand that such 
anti-personnel land mines should be outlawed. It is estimated that there are about 
a hundred million land mines now scattered all around the world. Therefore, 
action on this issue is expected. 

The issue of the protection of natural reserves and parks has been handed over 
to UNESCO. The protection of the environment in time of non-international 
armed conflict is an important topic. We attempt to deal with that issue through 
the distribution and use of manuals. Manuals should be used in all types of 
international armed conflict without making any difference between the two 
categories. Distribution of manuals is high on our priority list. With regard to the 
rules for the protection of the environment, this will be a discussion topic 
tomorrow where I will present some proposals. 

308 Protection of the Environment During Armed Conflict 

Utilizing the Article 90 Fact Finding Commission, as a means to monitoring 
compliance, is to be commended. Finally, dissemination being the beginning and 
the end with respect to furthering respect for humanitarian law. 

I have just one comment regarding Professor Roberts' statement that any 
violation of the rules regarding the environment is also a violation of some other 
rule. He seems to place more emphasis on the other rule and not so much on the 
violation of the environmental rule. Specifically, he felt that ICRC and others have 
put too much emphasis on the environmental side in the case of the Gulf War. 
Well, I wonder whether placing so much emphasis on the property approach is so 
satisfactory. If I look at the Gulf Report of the United States Armed Forces, under 
the heading of Environmental Terrorism, the text seems to indicate that the 
environment is not important, it is just a question of property. I do not think this 
is really a good statement of where we stand. There are so many problems with 
regard to the environment. I think it is important to put forward, and refer to, 
environmental rules and Additional Protocol I, even though some other 
provisions may be affected. Thank you. 

Professor Nordquist: Thank you. I am going to ask the panelists to keep their 
rounds chambered and ask Professor Green, Dr. McNeill and then, Professor 
Shearer, to respond and then close the list unless anyone is really moved. Professor 

Professor Leslie C. Green, University of Alberta: All I will say about Ottawa at 
this stage is that I have the feeling from a number of the comments that have been 
made that there is a complete misunderstanding of the purpose of the Chairman's 
concluding statement at that Conference. I wish they would go back and look again 
and see why the Chairman made the statement he did. 

With regard to Article 51 of the Charter, generally, I think we ought to 
remember that the purpose of the Charter was to preserve the peace. As such, I 
think Professor Shearer gets close to it when he points out in his lex generate, "We 
must be very careful not to quote the Charter, not to keep going back to the Charter 
once we are in a stage of armed conflict." The law of armed conflict is very much 
lex specialis. There is nothing in lex generate that forbids a resort to lex speciate, 
particularly when the lex generate in question is related to an entirely different type 
of issue, the preservation of peace, the prevention of conflict. Therefore, the debate 
on Article 51, whether it creates a right or recognizes a right, I submit, becomes 
completely irrelevant. 

In regard to the problem of new law. It is very nice to talk about new law. It is 
a lovely ideology. It gives a very good feeling to the lawyers who may be involved 
in the discussion. But in too many cases, particularly in recent years with this new 
political correctness that we have on an international level, where we all have to 

Panel Discussion 309 

bow down to the views of the developing countries come what may, I have the 
feeling that too often when we are talking about "new law" we find that the 
developing countries, bless them, do not like the "old law." In too many cases, we 
are likely to go backwards rather than to go forward. That was very clear over the 
issues in the Law of the Sea Conference with regard to no longer recognizing the 
territorial sea as it had been understood for centuries. 

Again, the other thing that arises with regard to the new law is very much like 
what happens whenever the U.N. is discussing a humanitarian prospect. We all 
love humanity, so long as we do not have to do anything about it. Therefore, we 
get to the point in the Assembly that when there is a humanitarian issue being 
considered, we go by consensus, which saves any of us from saying "no." I fear that 
when we talk about "new law" we may get a new law that nobody wants anyway 
and nobody is going to do anything about. I always have the feeling that, from the 
point of view of the impact on the public, a new law that we know nobody is going 
to do anything about just brings the whole law into complete disrepute. 

Dr. John H. McNeill , U.S. Department of Defense: There are many wonderful 
targets of opportunity here that could be engaged, but I would like to confine 
myself to a comment and to a question that have both arisen out of our discussion, 
particularly with respect to what Professor Bothe said about warring parties not 
having the right to cause damage to neutral territory. That in itself, I think, was 
engendered by remarks of Paul Szasz, who referred to a number of General 
Assembly resolutions and perhaps others calling upon the warring parties, the 
States that have participated in a conflict, to collect their own remnants, if I 
understood him correctly. 

I think there is something very important that is missing from that approach 
which is that there seems to be no recognition of the fact that in many conflicts 
today, and particularly in the recent Gulf War, there was an aggressor. I fail to see 
why States exercising the right of self-defense against an aggressor should be 
penalized for, in effect, protecting their own survival from what an aggressor has 
perpetrated upon them — they, being the innocent victim. I certainly hope that 
there is not a trend that we are going to see that treats everyone exercising the use 
of force, whether legally or illegally, the same when it comes to damages. I am not 
sure that the standard of damages should be that suggested by Professor Bothe, 
that warring parties should somehow be responsible for any and all damage to 
neutral territory. I know it has been suggested that even affects caused by ships at 
sea, having a conflict on the high seas, might have an affect on the biosphere and 
that they should be penalized financially for engaging in that act. 

Fortunately, I think that is still a ways off, although pending litigation may 
prove me wrong. I would like to focus on this, and I wanted to ask Professor Szasz, 
particularly, if Resolution 687 — which specified that Iraq should be financially 

310 Protection of the Environment During Armed Conflict 

liable for the damage it caused and which also sets up the U.N. Claims Commission 
to look at damages, including environmental damage and, basically, all damages 
that flow from aggressive acts — is not the correct way to look at the problem. 

Professor Szasz: In response to that point, I think Resolution 687 is correct. It 
says that, ultimately, Iraq will have to bear responsibility for the damage it caused. 
It does not quite answer the question of whether, since Iraq is not paying, 
somebody else who caused damage should also pay for the damage to a neutral. 
Now, of course, this military action was a bit different, this was a U.N. -sanctioned 
action and, therefore, one could say that the entire world community was lined up 
against Iraq. Those who simply acted as instrumentalities but caused damage, 
should not, therefore, themselves have to carry more responsibility. What I was 
saying before is that, as between two combatants and a neutral, if a neutral is 
damaged, there is no reason why even the combatant who is right should not 
initially reimburse the neutral even though the former might be able to recover 
ultimately from an aggressor. 

Let me make one more point with respect to Professor Bothe's suggestion. What 
I said was that not only do the rules of land targeting apply where the target is a 
neutral, but also where the target is the other combatant. The rules as to land 
targeting require combatants to follow the rules of Geneva Convention IV so as to 
protect civilians, rather than being bound by any "due regard" principles of naval 
warfare. So the prior suggestion mentioned, which I did not really contemplate, 
is the target State being the other combatant. 

Professor Roberts: In answer to Dr. McNeill, I am slightly worried about what 
he said concerning the significance of the war being against an aggressor, because 
it does still remain, as he well knows, that the basic rules of the law of war apply 
equally to all combatants during the course of the war. It may be that questions of 
reparations subsequently are a different matter. But in the course of the war, it is 
still the case that, for practically all purposes, the law has to apply equally to all 

In response to Hans-Peter Gasser, I do not want to be depicted as saying, in 
connection with the protection of the environment, "forget Additional Protocol I 
and just stick to ancient rules." That is not my position. My position is that, yes, 
indeed, there is an important principle enunciated in Additional Protocol I in 
respect to protection of the environment. However, it does set a very difficult 
standard to meet. It is not a case of abandoning Additional Protocol I. It is a case 
of looking, as well, at the provisions of earlier treaties; at other provisions within 
Additional Protocol I which cover, better than any previous treaty, the issue of 
accuracy in targeting; not destroying civilian objects, and so on and so forth. So 

Panel Discussion 311 

it seems to me that there are other provisions which are highly important. I cannot 
resist throwing that in at the end of the session when nobody can directly reply. 

In Britain, I think, we have interpreted the experience of the Gulf War as 
reflecting rather positively on Additional Protocol I, which contributed to the 
decision of the U.K. Government to ratify the Protocol. The ratification will 
actually be implemented imminently, but all the legislation is through. I know 
that there are many other issues in the United States concerning whether or not 
we want to ratify besides the issue of our experience in the Gulf War. Our 
interpretation of the experience, and I think some U.S. interpretation of the 
experience, is that Additional Protocol I does enunciate a number of very useful 
rules in clearer form than in other treaties and, therefore, is worth pursuit. 

Finally, I think we have had some tendency in the discussion to find what I 
would call "lawyerly solutions to para-political" problems. I do not believe that 
simply setting up another international fact finding commission or trying, by some 
new means, to have an international criminal tribunal look at the problems of cases 
such as the Gulf War, really addresses the fundamental problem which is that we 
live in a world of States. This same problem is arising in respect to the former 
Republic of Yugoslavia, where there are very difficult problems of determining 
whether or not one can effectively bring violators of the law of war to court. It is 
a problem that has preoccupied governments throughout this century and never 
more so than at present. I think that some times we have to admit that there may 
not be solutions to these problems and, certainly, there may not be "lawyerly" 
solutions to these problems in the form of tribunals or courts which are capable 
of really meeting the need that is undoubtedly there. 

Professor Walker: Two quick thoughts. The first is that some of the concern is 
about potential "liability of innocent States" in terms of punishing an aggressor. 
I can see a situation where a response may be totally disproportionate, although 
the position taken is whether there was "due regard." If calculated in 
proportionality, the due regard principle will take care of some of those problems. 
The second point is that we have to find out about the relationship of the 
environmental protection conventions such as the 1982 Law of the Sea Convention 
and regional conventions. I reiterate my paper's point that the other rules and 
principles take care of all that. Thank you. 






Chapter XVII 

International Environmental Law 
Considerations During Military Operations 

Other Than War 

Rear Admiral Bruce A. Harlow, JAGC, U.S. Navy (Ret.)* 

Commander Michael E. McGregor, JAGC, U.S. Navy** 


U.S. forces are increasingly being tasked to conduct military operations other 
than war. Military operations other than war include a very broad range of 
missions, from nonconsensual situations, such as peace enforcement, which may 
include combat, to operations under consensual circumstances such as 
humanitarian assistance and disaster relief. At the same time, environmental 
awareness and concern for protection and conservation of the environment is 
developing at all levels, from national leaders to citizens, from commanders to 
soldiers. It is therefore not surprising that discussion and debate of the relationship 
between international environmental law and military operations other than war 
is occurring. This paper will briefly discuss existing international environmental 
law principles, comment on emerging principles, and then relate the discussion 
to military operations other than war. 



While numerous treaties exist regarding environmental matters between 
nations, most address narrow regional, and often bilateral issues, and do not have 
universal application. There are, however, a few principles having global 
application. The primary principle of international environmental law is the duty 
not to cause significant environmental damage to other States and areas beyond 
national jurisdiction. This principle is accepted as customary international law. 
Growing out of this central principle of international environmental law are 
several corollary principles. 

Central Principle - Duty Not to Damage Other States and Areas Beyond National 

316 Protection of the Environment During Armed Conflict 

Principle 2 1 of the Declaration of the United Nations Conference on the Human 
Environment sets forth this basic principle: 

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 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. 

The principle is also expressed in numerous treaties, found in international 
case law, and has been adopted in the Foreign Relations Law of the United States 
Restatement of the Law Third. 

The principle does not establish a duty to protect the environment, but 
instead establishes a duty not to damage another State's environment or the 
environment beyond the limits of any national jurisdiction. The principle 
affirms the right of a sovereign to exploit its own resources, although it does 
assume that "environmental policies" exist. The Restatement sets forth the rule 
by stating: 

A State is obligated to take such measures as may be necessary, to the extent 
practicable under the circumstances, to ensure that activities within its jurisdiction 
or control (a)conform to generally accepted international rules and standards for the 
prevention, reduction, and control of injury to the environment of another State or 
of areas beyond the limits of national jurisdiction; and (b) are conducted so as not to 
cause significant injury to the environment of another State or of areas beyond the 
limits of national jurisdiction. 

The Restatement adds two important qualifiers to the principle. First, the 
State's obligation to not cause damage to another State's environment, or the 
environment of areas beyond national jurisdiction, is limited "to the extent 
practicable under the circumstances." Second, the obligation is not to cause 
"significant injury." Neither of these qualifiers are defined or developed in the 
international arena. 

The inclusion of the obligation not to cause significant injury to areas beyond the 
limits of national jurisdiction, is important because it portends emerging principles 
of international environmental law to the effect that States have an affirmative 
obligation to protect the environment. In addition, it suggests that injury to the global 
environment is a concern of all States, another trend emerging in the law. 

It is also significant that the principle applies to activities within a State's 
"jurisdiction and control." Certainly the actions of a State's armed forces are 
within its "control" and thus fall under the obligation to not cause significant 
injury to another State's environment, to the extent practicable under the 
circumstances. This obligation is consistent with principles found in the law of 

Harlow & McGregor 31 7 

armed conflict which disallow destruction of the environment when not justified 
by military necessity. 

Corollary Principles - Duty to Notify and to Take Measures to Prevent and 
Reduce Significant Environmental Damage or the Potential for Such Damage. 

Related to the principle that a State is responsible not to cause significant 
environmental injury to other States and areas beyond national jurisdiction is 
the duty to inform States and competent global or regional international 
organizations of such damage. If a State becomes aware that an activity in its 
jurisdiction or under its control may cause significant injury to the environment 
of another State, it has a duty to notify all States threatened by the pollution and 
competent international organizations. 

Also growing out of the State's duty not to cause significant environmental 
injury is an obligation to take precautionary measures when an activity is 
contemplated that poses a substantial risk of significant environmental injury to 
an area beyond its border and to take measures to mitigate any such injury. 
Included is an obligation to take affirmative actions to mitigate the damage when 
its actions have significantly damaged areas beyond national borders. A similar 
duty to take affirmative action is unclear when significant damage takes place 
within another State. While there would be an obligation to prevent, reduce or 
terminate the activity, to the extent practicable under the circumstances, and duty 
to pay reparations, the obligation to actually assist the impacted State in 


environmental cleanup and response is subject to questions of sovereignty. A 
State cannot assist in mitigating environmental damage within another State's