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Prosecuting Attacks That Destroy the Environment: Environmental Crimes or Humanitarian Atrocities?

Posted on: Tuesday, 5 July 2005, 12:00 CDT

CONTENTS

I. INTRODUCTION

Scorched earths in Norway, defoliated jungles in Vietnam, ignited oil fields in Kuwait, emptied marshes in southern Iraq-the environment is often both a victim and a tool of armed conflict. Despite the long-held knowledge that the environment suffers from warfare, the abundance of research on how to prevent damage, and the numerous conventions and customary laws that aim to prevent environmental harm, the environment continues to be both a casualty and a method of warfare. Intentional and unintentional environmental destruction are not new problems nor new topics for study. Professors, environmentalists, and lawyers have examined the effects of warfare on the environment and hypothesized about ways to protect the environment during armed conflict and its aftermath. And yet, despite the continuing destruction, no State has ever been held accountable for environmental destruction1 and no individual has been convicted of environmental war crimes.2 The reasons range from the political problem of holding victors and their vanquished opponents responsible for the same actions to the prosecutorial barriers embedded in environmental war crime statutes, and from the values of the international community to the potential for environmental crimes to be overshadowed by other atrocities.

Given the history of environmental destruction in international conflict and the improbability of prosecution of environmental war crimes as stand-alone violations, the international community should focus on prosecuting environmental destruction when conducted to achieve another atrocity, such as genocide or crimes against humanity. This would set international legal precedent for the prosecution of individuals who have used the environment to achieve genocide or a crime against humanity, but could also serve as an intermediate step toward the ultimate goal of prosecuting individuals for environmental destruction as an independent violation rather than only when committed in conjunction with human rights violations.

This article seeks to explain why no individual has been convicted and how, in the future, individual accountability can be attained through prosecuting attacks on the environment as acts conducted to achieve a further humanitarian atrocity. After a background discussion on the history of the use of environmental destruction in armed conflict and an examination of the landscape of customary and conventional laws that restrict environmental damage in armed conflict, this article will examine the lack of prosecution for environmental destruction in the international tribunals of the 1990s. In the third section, this article will analyze the possible reasons for this absence of precedent, using the old Iraqi government's environmental tactics during the 1991 Gulf War as a case in point. During the war, the Iraqi military set fire to hundreds of oil installations,3 turning the desert skies black, and yet, despite the glaring use of the environment as a tool of war, no one was held criminally accountable and future prosecution for these acts is unlikely. By way of contrast, in the fourth section, this article will advocate for the prosecution of environmental destruction when used in furtherance of another atrocity, using the draining of the marshes in Iraq as an example. Finally, this article concludes by analyzing the benefits of this approach as one step toward achieving the ultimate goal of prevention and prosecution of environmental destruction as an independent violation of international law.

II. BACKGROUND: THE LANDSCAPE OF ENVIRONMENTAL LAW AND ARMED CONFLICT

The destruction of the environment is as old as warfare itself. "Since time immemorial, war has visited its excesses on nature, excesses that many fear the Earth can no longer tolerate."4 Although warfare has never been separable from the use of environmental destruction,5 the protection of the environment has never been a top priority in the conduct of warfare.6 In response to this propensity, along with a general desire to protect the environment, the international community designed several peacetime and wartime conventions to protect the environment. These conventions coincided with the rise of customary law principles that serve to minimize environmental damage. The following section examines the history of the use of the environment as a tool in armed conflict and the laws that serve to limit this use.

A. HISTORY OF ENVIRONMENTAL DESTRUCTION IN WARFARE

Whether intentional or unintentional, the destruction of the environment has always been a consequence of armed conflict. Warfare can leave landscapes littered and contaminated with bomblets, landmines, and other weapons.7 In particular, purposeful environmental modification as a tool of war is as ancient as civilization and widespread throughout Asia, Europe, and North America.8 The first recorded use of environmental modification as a tool of warfare was by the Scythians, who practiced a scorched- earth policy against the Persians in 512 B.C.9 Other examples include the salting of the soils of Carthage; the scorching of Confederate land in the U.S. Civil War; the blowing-up of the Huayuankow Dam of the Yellow River by the Chinese, which flooded millions of acres of crops and soil; the destruction of Verdun by poison gas in World War I; and the burning of Norwegian lands during World War II.10 More recently, the United States used Agent Orange to defoliate the jungles of Vietnam." The Rwandan war in the early 1990s left national parks polluted with landmines and bodies, and agricultural land stripped to force movements of people.12 The old Iraqi government ignited oil fields in Kuwait during the 1990-1991 Gulf War13 and destroyed the marshes in southern Iraq following the 1991 Shi'a rebellion.14 Also, as recently as the 1999 Kosovo conflict, the environmental consequences of NATO targets were considered in an analysis of the legality of the attacks.15

B. CONVENTIONAL AND CUSTOMARY LAWS TO PROTECT THE ENVIRONMENT IN ARMED CONFLICT

1. International Conventions

The international community addressed the prevention of environmental destruction through treaty-based law and customary law- not via deterrence through prosecution. Though conventional law has taken the form of peacetime treaties that seek to remind States of their obligation to protect the environment in warfare,16 this paper focuses on the armed conflict treaties that prohibit and criminalize excessive environmental destruction in war. Moreover, though the peacetime treaties are numerous, the international armed conflict treaties that seek to protect the environment are few.17

Following the Vietnam War, the international community created two treaties related to environmental destruction in warfare: the Convention on the Prohibition of Environmental Modification Techniques (ENMOD)18 and Protocol I to the Geneva Conventions (Protocol I).'9 ENMOD prohibits States (as opposed to individuals) from using hostile environmental modification techniques that have "widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State party."20 This standard is not cumulative, prohibiting any impact that meets at least one of the three means of harm. ENMOD is also limited in that it bans only manipulation of the environment as a weapon against other signatories21 and enforcement is post hoc and political in nature.22

Unlike ENMOD, Protocol I criminalizes certain actions taken by individuals. In two separate provisions, Protocol I imposes protections on the environment. Article 35 prohibits employment 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"23 and Article 55 states:

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 and 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.24

These two provisions seek to protect the environment in two ways. Article 35 criminalizes intentional or expected environmental destruction with the legal standard of a reasonable person.25 It considers protection of the environment beyond humanitarian effects- representing a departure from traditional humanitarian law.26 Article 55, on the other hand, establishes that the environment is a protected object and recognizes the link between the environment and human survival.27

Protocol I is more limited in scope than ENMOD. While Protocol I diverges from ENMOD in imposing a cumulative standard ("and severe," as opposed to ENMOD's "or severe"), neither provides for military necessity as a defense. Furthermore, the United States has not ratified Protocol I.28 In fact, the United States has specifically objected to both Article 35(3) and Article 55, which means the United States does not accept these provisions as customary international law.29 Also, Protocol I is limited to the context of international conflicts and, though Protocol II to the Geneva Conventions30 governs internal armed conflict, it contains no explicit environmental protections.31

Finally, the Geneva Conventions of1949, although not explicitly protecting the environment, contain numerous provisions that bear upon it. The Conventions generally prohibit the pillage32 and destruction of personal property when not militarily necessary.33 Furthermore, the "grave breaches" provisions of the Conventions include "extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly."34 These provisions, although only tangentially related to the environment, can be read to limit environmental destruction.

2. Customary International Law

Customary international law also serves to restrict environmental destruction in armed conflict by limiting military force with the principles of proportionality and necessity.35 Among the principles that constrict conduct in warfare is the principle of proportionality between the use offeree and the military objective. It demands a difficult "weighing [of] the interests, through a subjective valuation of military, environmental, and humanitarian concerns,"36 and requires those who plan a military attack to take all possible precautions to minimize loss of life and collateral destruction.37

Military necessity is a second customary international principle that limits destructive action in armed conflict. It prohibits practices unnecessary to the achievement of military advantage but allows collateral destruction if military circumstances require it.38 The standards of proportionality and military necessity are both subjective, such that a tribunal "must look at the situation as the commander saw it in light of all the circumstances,"39 and objective, in requiring reasonableness.40 In the context of the environment, these two principles require that, though force must be proportional, "excessive environmental damage may be excused if it reasonably appeared necessary to the decision maker at the time the action was undertaken."41 Thus, environmental destruction is prohibited when the force applied is disproportional to the desired gain or the resulting environmental destruction is unnecessary to the achievement of that gain.

As shown by the discussion above, war has historically been devastating to the environment. The international community has responded with international environmental law treaties that seek to protect the environment during armed conflict and customary international law principles that constrain actors on the battlefield. This was the backdrop to the international tribunals and ad-hoc courts created in the 1990s to prosecute individuals for crimes committed during armed conflict. Nevertheless, there has been no prosecution for the environmental destruction that occurred.

C. THE ABSENCE OF PROSECUTION IN RECENT HISTORY: INTERNATIONAL TRIBUNALS

Despite the use of the environment in warfare throughout history and the extensive international laws that prohibit environmental destruction in armed conflict, no tribunal since Nuremberg has prosecuted individuals for war-related environmental damage.42 Following World War II, the United Nations War Crimes Commission determined that nine of ten German civil administrators could be considered war criminals for cutting down Polish timber,43 and scorched-earth policies were considered war by the International Military Tribunal in Nuremberg.44 In another case, the U.S. Military Tribunal in Nuremberg considered a charge against General Rendulic of war crimes based on his use of scorched-earth tactics in Norway, although he was ultimately acquitted.45

Since then, no tribunal has charged an individual for environmental destruction. Neither the International Criminal Tribunal for Yugoslavia (ICTY) nor the International Criminal Tribunal for Rwanda (ICTR) are directly empowered to charge individuals for the commission of environmental war crimes46 despite the serious environmental damage that occurred. Although the prosecutor for the ICTY considered prosecuting NATO for potential violations of Articles 35 and 55 of Protocol I, the Committee Established to Review the NATO Bombing Campaign (ICTY Committee) decided not to recommend prosecution upon finding "that the environmental damage caused during the NATO bombing campaign does not reach the Additional Protocol I threshold"47 and that targets may have been chosen based on military necessity.48 Moreover, although the ICTR has jurisdiction over the crime of pillage and violence to health and life,49 the tribunal has never brought charges for those crimes.50 Similarly, despite the environmental destruction, the ICTY has virtually no jurisdiction for crimes against property or the environment.51

The ad hoc tribunals established to prosecute war crimes have also disregarded charging individuals for crimes against the environment. Neither the Law on the Establishment of Extraordinary Chambers for Cambodia nor the Special Tribunal for Sierra Leone have jurisdiction over crimes against the environment.52 The United Nations regulation that established a panel to hear atrocities that occurred in East Timor is the only statute that specifically criminalizes intentional attacks on the environment,53 yet there have been no convictions. Thus the international community, in the face of a regime of conventions and customary laws that have not prevented environmental destruction, has not engaged in prosecution as a means of deterrence.

III. THE IMPROBABILITY OF PROSECUTION OF ENVIRONMENTAL DESTRUCTION

In December 2003, the Iraqi Governing Council, through the Statute of the Iraqi Special Tribunal, established a court to try Iraqis accused of war crimes and crimes against humanity.54 An intentional attack on the environment was included as a war crime under the Statute. Although such a crime is explicitly defined by statute, prosecuting an Iraqi for the attacks on the Kuwaiti oil fields is unlikely. The following section examines the attacks on the oil fields and explains the reasons, including prosecutorial difficulties and political barriers, why individual criminal liability for this environmental attack is unlikely.

A. THE INTERNATIONAL CRIMINAL COURT AND THE STATUTE FOR THE SPECIAL IRAQI TRIBUNAL

Because this paper uses Iraq's actions in the 1990-91 Gulf War as an illustration, an examination of the elements of the crime against the environment as codified in the Statute of the Iraqi Special Tribunal (Iraqi Statute) is necessary.55 This crime is identical to the environmental war crime codified in the Rome Statute of the International Criminal Court (Rome Statute),56 and thus commentary to the Rome Statute is relevant to understanding the Iraqi Statute.

The Rome Statute and Iraqi Statute include, within their war crimes jurisdiction, a category of environmental crimes. Article 8(2)(b)(iv) of the Rome Statute and Article 13(b)(5) of the Iraqi Statute criminalize "intentionally launching an attack in the knowledge that such attack will cause . . . widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated."57 To prosecute this crime, the act must have taken place within the context of an international armed conflict. The provision requires that: (1) the attack was intentional; (2) the damage was widespread, long-term, and severe; and (3) the perpetrator had the knowledge that the damage would be "clearly excessive" in relation to "concrete and direct overall military advantage."58

B. PROBLEMS IN PROSECUTION: 1990-91 GULF WAR ENVIRONMENTAL DESTRUCTION

There are procedural and political reasons that account for the lack of prosecutions since Nuremberg. Procedurally, the statutes require an ambiguous threshold to prove environmental war crimes, which makes "the court an unlikely forum for any new broad initiative to prosecute Environmental Law of War violations or other environmental war crimes."59 The political reasons for the lack of prosecutions, though conjecture, include considerations such as victors' spoils, potential for the environment to become peripheral in the face of crimes against humanity, and hesitancy on the part of the international community. These procedural and political reasons will be examined below in light of the former Iraqi government's burning of the oil fields in the 1991 Gulf War.60

Many consider the Gulf War "a prime example of deliberate environmental modification for military purposes,"61 and thus it is covered under the Iraqi Statute, as well as ENMOD. Over 650 oil installations were ignited by the time the coalition crossed into Kuwait, releasing various chemicals, which possibly caused damage to the soil, air, vegetation, and groundwater.62 This intentional act, and resulting damage, would seem to be the paradigmatic case where prosecution would be not only appropriate but also feasible. However, the elements of the crimes as delineated above are vague and difficult to satisfy, and the military advantage element requires a "balancing test stacked heavily against the environment"63 such that many have questioned whether Iraq violated existing international law.64

Under the Iraqi Statute, the prosecutor must show that the perpetrator intended to act and knowingly caused widespread, long- term, and severe consequences-negligence is not sufficient for this criminal cause of action.65 While it is clear that Saddam Hussein intended to strike the oil fields, proving his knowledge of the potential devastation is problematic.66 Many legal experts argue that the fact that only Kuwaiti oil fields were ignited is evidence of malicious intent,67 but it is possible that this decision to attack Kuwait alone was merely the result of a military cost- benefit analysis on the part of the Iraqis.68 Without evidence of intent to attack the environment or evidence that shows that Hussein knew of the potential environmental consequences, proving this element may be a substantial obstacle \to successful prosecution.

second, the prosecutor must show that the damage was widespread, long-term, and severe. This is the greatest barrier to prosecution because the language and science are both ambiguous. Neither the Rome Statute nor the Iraqi Statute offers definitions of these terms. The language is borrowed from Protocol I and ENMOD, although ENMOD does not have a cumulative standard. The Conference of the Committee on Disarmament Understanding (CCD), in interpreting ENMOD, has defined "widespread" to include damage over several hundred kilometers, "long lasting" to span at least a "period of months, or approximately a season," and "severe" to require "significant disruption or harm to human life, natural and economic resources or other assets."69 These definitions, while helpful, are specific to ENMOD only, as specifically required by the CCD.70 International bodies have divergent definitions of these terms-the commentary to Protocol I defined "long term" as measured in decades,71 while the ICTY Committee measured "long-term""in years rather than months."72 These terms are difficult to interpret because they attempt to give spatial and temporal delineations to environmental damage when the environment, "for the most part, does not know such boundaries."73 The definitions would have to be determined by the presiding judge and there is little guidance.

The ambiguity of these terms is compounded by the scientific difficulties inherent in measuring environmental destruction. In the Kuwaiti oil fields example, the initial reports were extraordinary- devastated ecosystems and farmlands, degraded air quality, and polluted water.74 In actuality, it not only takes time to assess long-term consequences,75 but, as with this example, the environmental damage may turn out to be less severe than anticipated.76 Furthermore, it is greatly disputed how much of the damage arose from Iraqi action and how much was attributable to coalition forces.77 Finally, environmental damage is hard to assess in terms of severity, and given nature's ability to heal itself, difficult to measure in terms of longevity.78 The unreliability of scientific assessments and linguistic ambiguity was why the Office of the Prosecutor (OTP) decided not to prosecute NATO for its actions in Kosovo;79 those defects would lead to that same result here. In fact, the OTP commented on the Gulf oil fires and was unwilling to find that the damage met the Protocol I standard.80

Lastly, under Article 13 of the Iraqi Statute, the prosecutor must show that the damage was "clearly excessive in relation to concrete and direct overall military advantage."81 Rooted in the customary international law principles of proportionality and necessity, this clause requires balancing military advantage against environmental damage and proving a military need for the destruction.82 This language also suffers from ambiguity: how much military advantage is necessary, by whose standard is it calculated, and what does "clearly excessive" mean?83 Nuremberg precedent suggests that military necessity allows an actor "to apply any amount and kind of force to compel the complete submission of the enemy."84 Furthermore, commentary to the Rome Statute suggests that the value of the military advantage must be assessed in terms of its overall contribution to the military operation, which must be weighed against collateral damage.85

In the only case in history where military necessity was balanced against environmental damage, the tribunal found the standard to be that of what a "reasonable commander at the time"86 would have done. In the case of United States v. Wilhelm List ("Rendulic case"), the court considered a charge against Austrian General Lothar Rendulic for scorched-earth policies.87 Though the tribunal required "some reasonable connection between the destruction of property and the overcoming of the enemy forces,"88 the court found Rendulic innocent by reason of military necessity. The tribunal recognized that the scorched-earth tactic served no military purpose, but, based on the circumstances on the ground, it decided that although "the conclusion reached may have been faulty, it cannot be said to be criminal."89 Rendulic's tactics, based on a wrongful assumption that the Russians were advancing, were not criminal because of his assessment of military need.

The ICTY Committee similarly determined that military advantage needs to be based on the "military worth of the target ... in relation to the circumstances prevailing at the time."90 NATO had attacked various chemical facilities, which resulted in contaminated waterways and soiled earth.91 NATO forces also conducted scorched- earth policies that destroyed agriculture, communication lines, rivers, and roads.92 Though NATO itself determined that the damage "is going to be much more significant in the long term and incidentally require a lot more money to fix than the repair of some oil refineries,"93 the ICTY Committee chose not to recommend prosecution both because of the difficulties in damage assessment and the reasonableness of the targets based on the circumstances on the ground.94 Finally, the commentary to the Rome Statute adds that the delegations present at negotiations intended the assessment to be from the perspective of the perpetrator on the basis of information available to the actor at the time.95

Thus, in considering military advantage, the tribunal must look from the perspective of the accused at the time of the environmental destruction. In the context of the Iraq War, like Rendulic who thought the Russians were advancing, Hussein was faced with the oncoming Coalition forces and ostensibly chose to act defensively to forestall the enemy. In fact, Hussein's decision to ignite the oil fields may have been undertaken in the hope that "the dense black smoke from the blazes would confound United States ground and air forces."96 Furthermore, some argue that the actions were effective in both covering Iraqi operations from the Coalition aerial attacks and in attacking the Marines advancing to Kuwait City.97 Despite the fact that the military advantages achieved from this action were minimal, a judge must consider Hussein's actions in light of the advancing Coalition troops and the unavailability of any weapons that could hold back the Coalition.98 The balance of factors could be sufficient to acquit Hussien on charges of environmental war crimes in light of the precedent set by the Nuremberg tribunal and the ICTY committee. Both of these bodies gave credence to the defense that the environmental damage resulted from a belief that actual military advantage could have been attained.

Finally, both the Iraqi Statute and the Rome Statute require any environmental crime to have a nexus to an international conflict.99 While not an issue in the oil fires case, the protection of the environment during internal armed conflict or insurrection is limited at best.100 The elements of the crime-knowledge and intent; widespread, long-term, and severe damage; and damage clearly excessive to military advantage-all pose obstacles that make successful prosecution unlikely.

C. POLITICAL AND OTHER NON-PROSECUTORIAL HURDLES

In addition to prosecutorial hurdles, there are political reasons why members of the former Iraqi government will most likely not be charged with environmental war crimes for burning the oil wells. First, as already mentioned, discerning which environmental damage resulted from a defendant's action is difficult, and any analysis of the damage will reveal environmental destruction resulting from the actions of the Coalition. The Coalition was quick to condemn Saddam Hussein's actions as ecoterrorism, but in consideration of the environmental damage left after the war, the Coalition may be equally responsible.101 As in the Nuremberg tribunals, where the Soviets were concerned about revelations of their own misdeeds and thus restricted certain charges,102 a comparable potential to expose environmental wrongs may lead a prosecutor to avoid making certain allegations.

Prosecution would also lead to the "impression of a victor's justice and punitive peace."103 For example, commentators note that the United Nations was quick to sanction Hussein for the environmental destruction in the Gulf War,104 but not the United States after Vietnam. After all, if the burning of the oil fields had turned the tides of war, the military advantage would not have been questioned.105 For a tribunal to be truly legitimate and prosecute all who commit war crimes, the prosecutors will have to investigate the actions of the victors as well as the losers, as was done following the NATO campaign in Kosovo. The low potential for victors to be brought to justice will reduce the chances that such crimes are ever prosecuted and may even explain why such crimes seem non-prosecutable.

Additionally, the Iraqi regime is already being held civilly accountable for collateral damage resulting from its aggression, although not through a process predicated on environmental destruction.106 After the 1991 Gulf War, the U.N. security Council created the U.N. Compensation Commission to evaluate claims "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."107 The fund receives its proceeds from the sale of oil, and as of 2003, awarded about U.S. $46.6 billion to over 1.5 million claimants.108 This sets a precedent for attaching civil instead of criminal liability for environmental destruction. Moreover, because the regime has been held accountable for the destruction resulting from aggression, this mitigates against a finding of criminal liability.

The final reason why environmental war crimes will probably not be prosecuted is that the internationa\l community is not prepared to prosecute individuals for environmental crimes in a way that it has for other atrocities,109 though there is a growing "international consensus [regarding] state responsibility for destruction of the environment."'10 All other atrocities are humanitarian in nature-there is no precedent that a purely environmental claim will rise to the level of a humanitarian crime, especially when an individual is charged with both. Given the selection of crimes available, including rape, murder, genocide, and other crimes against humanity, the potential for environmental crimes to remain peripheral is high.111

The hesitancy of the international community, the precedent of considering environmental destruction in civil terms, the problem of "victor's justice," and the difficulty in proving the complex elements of the environmental war crimes statutes all contribute to the lack of prosecution of environmental destruction in the history of war crimes tribunals. The international community must find an intermediate step to hold individuals liable for environmental damage.

IV. PROSECUTING ENVIRONMENTAL DESTRUCTION IN FURTHERANCE OF ANOTHER ATROCITY

Given the absence of criminal prosecution for environmental war crimes, the tribunals should prosecute environmental destruction when the attack is conducted to achieve another atrocity. This thesis does not suggest that environmental damage as an independent crime should not be prosecuted, but rather that the international community has not taken steps in that direction since Nuremberg. Instead of prosecution, the international community has unsuccessfully sought to protect the environment during warfare through conventions and customary law."2 Prosecution for environmental destruction as an independent crime is a noble goal, but as described above, the international community is not yet ready to achieve that goal.

This paper proposes taking an intermediate step-prosecuting individuals for environmental attacks conducted in furtherance of other atrocities, such as genocide or crimes against humanity. This would establish precedent in which environmental damage would be measured and considered such that it can give meaning to the ambiguities of the terms "widespread, long-term and severe." It would remove the "military advantage" element, and would apply in both international and internal armed conflicts. Most significantly, prosecuting environmental attacks conducted in furtherance of another atrocity would document prosecution of environmental destruction in historical records. Although this may seem like a step backward from Protocol I, which was the first instance of recognizing the environment as an inherently protected object, this would be a step forward in establishing international legal precedent for the prosecution of environmental destruction. This is not the end step; "law protecting the environment during armed conflict, and indeed the law-making process, must be dynamic and progressive."113

A. IS THIS APPROACH FEASIBLE?

Prosecution of environmental attacks within the context of humanitarian laws as a tool to achieve a further atrocity is feasible both because it fits into the legal lexicon established in the Geneva Conventions following World War II and because there is international legal precedent for the prosecution of one crime committed in furtherance of another. Most of the provisions in the Geneva Conventions address the protection of persons,114 and Common Article 3 to the Conventions mandates humane treatment to protected people."5 Also, the listed "grave" crimes in the Conventions are all humanitarian in nature. ' '6 For example, the crime of destruction of property is framed in a human rights context because the property that is protected must have belonged to private persons, the occupied State, or social or cooperative organizations."7 Given this legacy, it is not surprising that the crimes enumerated in the ICTY, ICTR, and ICC are, for the most part, anthropocentric. Although environmental destruction should be recognized for its independent devastation, the international community would more readily accept prosecution for environmental attacks when conducted to achieve a destructive humanitarian impact, as this has been the trend in international atrocity law.

Additionally, the ICTR laid the groundwork and established precedent for prosecuting an individual for an act conducted as a tool in furtherance of another atrocity in the case of Prosecutor v. Akayesu. "8 In the first ever conviction for genocide under the Genocide Convention,"9 the ICTR found that "sexual violence against Tusti women were integral parts of the genocide committed in Rwanda."120 Rape was "so systematic, so common, and even seemingly so bureaucratized that... [it was] clearly revealed as a major weapon in the arsenals of these combatants."121 The tribunal recognized the commission of one crime, rape, as a tool to commit a further crime, genocide. Just as rape was prosecuted as a tool to achieve genocide, environmental destruction can be prosecuted as an accelerator of genocide or as a crime against humanity.

Given the humanitarian nature of existing international atrocity law, and the precedent where one act was prosecuted as a tool to achieve a further atrocity, the prosecution of environmental destruction to achieve genocide or crimes against humanity is feasible.

B. PROSECUTION OF ENVIRONMENTAL DESTRUCTION AS A TOOL: THE case OF THE MARSH ARABS

One of the starkest examples of an attack on the environment in furtherance of a humanitarian atrocity appropriate for prosecution is the drainage of the marshes in southern Iraq and the consequential impacts on the Marsh Arabs. Following a brief history of the Marsh Arabs, this section will demonstrate how the environmental atrocities committed against the Marsh Arabs may be prosecuted as an aggravator of genocide and crimes against humanity.

1. Background: Who are the Marsh Arabs?

For millennia, the marshes in southern Iraq sustained various species of fish, plants, birds, and waterfowl.122 Covering an area of about 20,000 square kilometers where the Euphrates meets the Tigris,123 the marshes were also home to various tribes of Shi'a Muslims collectively known as the Ma'dan or Marsh Arabs. The Marsh Arabs have lived in the marshes for over 5000 years and based their livelihood on the marshes, through fishing, hunting, manufacturing handicraft from reeds and cane, buffalo breeding, and agriculture.124

In the early 1950s, the Iraqis and British designed an engineering plan to drain excessively salted waters from the marshes to make the land more arable.125 Although construction began in the 1950s, it was very slow and largely put off during the Iran-Iraq War.126 Following the 1991 Gulf war, the Shi'a rebellion in southern Iraq led to Saddam Hussein's loss of control over large portions of the area. The crushing of this rebellion, which occurred within weeks, was the beginning of the active assault on the marshes and their residents. '27 The uprising prompted the revitalization of the water diversion project and construction of a giant canal to dry the land and expel the inhabitants of the marshes. In June 1991, the Marsh Arabs launched a rebellion in response to this renewed construction.128 The regime responded by attacking with artillery, burning villages, tightening the food supply, attacking sacred sites, assassinating religious leaders, and forcing (or indirectly forcing) deportations.129 A giant canal called "third river" and a moat named Anfal 3130 were completed in 1992, diverting the water from the Euphrates and the Amara marsh.131 Iraq completed four other drainage canals in 1994 and the final canal was completed as recently as 1997.132 As a result of these drainage canals, "the Iraqi government was able to prevent water from reaching two-thirds of the Marshlands."133 By 2000, the Iraqi portion of the Fertile Crescent was dry and the surrounding land crusted with salt.134

The results of the draining, as well as the other attacks, are extreme. By 1992, the wetlands were largely dried up and turned into a desert135 and the marshes had been reduced to 67% of the 1984/ 1985 area.136 By 2000, 90% of the marshes were dried out.137 As a result of the loss of livelihood and forced deportations, the population of Marsh Arabs dropped from 250,000-300,000 in 1990 to 40,000 by 1993.138 Deprived of clean water, they suffered from health risks, loss of the reed beds (which was their main material for building shelter), and the destruction of a fishing and agrarian livelihood.139 For 5000 years, the Marsh Arabs sustained an existence that was largely destroyed in only ten years by Saddam Hussein's drainage program.

2. Conviction for Genocide: The Case of the Iraqi Marsh Arabs

Commentators called what happened to the Marsh Arabs genocide.140 According to the Genocide Convention, genocide is defined as five distinct "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group."141 For the purposes of this paper, the applicable act is the third enumerated act: "deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part."142 Genocide does not necessarily involve the actual extermination of the group, but rather the commission of one of five acts done with the specific intent to destroy, in whole or in part, a group defined by racial, ethnical, or religious terms.143 The purpose is to commit the genocide, and the commission of the act must be in furtherance or acceleration of this genocide.

All five acts that constitute genocide were committed against the Marsh Arabs, but, because this paper focuses on environmental attacks, those non-environmental acts will not be discussed. Like in Rwanda, where rape was one tool among many to commit genocide,144 the drainage progr\am was accompanied by mass arrests, forced deportations, murders, military attacks directed at civilians, and the destruction of homes and property.145 Also, Marsh Arabs who refused to relocate to government camps were denied medical treatment, ration cards, and food.146 All of these actions contributed to the commission of genocide.

Specifically, in regard to the environment, the marshes were drained as part of a systematic effort to "deliberately inflict on the group conditions of life calculated to bring about its physical destruction in whole or in part." Legal scholars have recognized that environmental destruction "particularly directed to areas on which indigenous peoples depend for their survival could be tantamount to genocide."147 By building the "third river," as well as four other drainage canals that served to direct the Tigris and Euphrates away from the marshes, the Iraqi regime inflicted on the Marsh Arabs conditions that led to their displacement and the destruction of their existence.148 The reed beds were burned or destroyed by defoliants while pollutants depleted the fish populations.149 As the marshes dried, the residents were denied fresh water, nutritious fish, vital reed beds to build shelter, boats, and design handicrafts for sale, and trade routes to sell their handicrafts, and as a result, suffered from starvation, cholera, and other diseases.150 The Marsh Arabs were cut off from the natural resources of their marshes and were either forced to resettle or flee (often in fear for their lives). According to the U.S. State Department, "the draining of the marshes has led to the destruction of the Marsh Arabs' self-sufficient economy, the near- complete atrophy of the entire ecosystem, and the flight of tens of thousands of refugees, including 95,000 to a camp in Iran."151 The vast majority of Marsh Arabs are now dispersed throughout Iraq and Iran,152 and their existence in the marshes has been essentially destroyed.153

For environmental destruction to be prosecuted as a tool to commit genocide, the prosecutor must prove the underlying crime, which requires showing that the perpetrator had the specific intent to destroy the group, defined along religious, ethnic, national, or racial lines.154 Probably, the most likely way to convict Saddam Hussein himself is by establishing his "command responsibility" for the government and military officiais that committed the atrocities.155 In the Marsh Arab case, evidence points to Hussein's personal knowledge and approval of plans to destroy the Marsh Arabs. Although "miles of files" found since the 2003 conflict await review,156 documents found by Kurdish rebels reveal a 1989 letter from the security director of Arbil (Kurdistan) to local authorities that addressed a "Plan of Action for the Marshes," a plan that Hussein approved.l57 The letter also references a conference, attended by Hussein, where that plan of action to dry the marshes was detailed-a plan which the U.N. Human Rights Special Rapporteur said "would constitute the gravest violation of human rights."158 The plan called for the destruction of homes, poisonings, assassinations, and the resettlement of Marsh Arabs on dry land, and specifically mentioned "poisoning the environment and burning homes."159 Other evidence includes videotape showing the Prime Minister instructing generals to "wipe out" certain tribes and showing the vast amount of destruction had already taken place. 160

Additional circumstantial evidence points to the intent to destroy the Marsh culture through the destruction of wetlands. Although the Marshlands area was also considered a problem area, it was not until after the rebellion in the 1990s that a "drive was made to really punish the people of the marshlands, and so it has been done in a pretty horrific way."161 In fact, the implementation of the plans outlined in the documents listed above coincided with an accelerated construction of water diversion canals and rivers, with the intent to "expel the inhabitants of the Marshes."162 Though Iraqi officials may argue that the drainage served developmental purposes, researchers have found that "many of the canals and other engineering structures serve no agricultural, economic, or developmental purpose."163 Furthermore, motivation for the act is not a factor.164 Like rape in Rwanda, which was "seen to involve the specific intent to destroy an ethnic group,"165 the documentation, timing, and purposes of the drainage evidence a specific intent to destroy the Marsh Arabs.

Finally, the prosecutor must show that the victims were targeted based on their membership in a group defined along religious, ethnic, national, or racial lines.168 International law on defining the group is not clear-where the ICTY determines the group based on the perpetrator's perception,167 the ICTR noted that each case must be assessed "in light of a particular political, social and cultural context."168 The former Iraqi government targeted the Marsh Arabs not only as Shi'a but also as a specific ethnic group connected with Iran.169 Marsh Arabs were singled out in the media "among the Shi'a for their alleged poverty, backwardness and immorality; they are disparagingly described as 'monkey-faced' people who are not 'real Iraqis,' but rather the descendants of black slaves."170 The women of the Marshlands were called sluttish and immodest.171 The marsh reeds gave coverage to those Marsh Arabs who resisted the Hussein regime. seen as a threat to Hussein's power, they were targeted for destruction.172

These elements are difficult to prove. However, whether or not the underlying crime of genocide is proven, and in this case it likely would be, the destruction of the environment upon which the targeted group relied on for sustenance and livelihood was a major accelerator of the genocide. Importantly, the environmental destruction was not genocide merely because it was conducted along with other acts that achieved the genocide, but because the draining of the marshes itself was an expression of the intent to destroy the Marsh Arabs.173 Although the environmental destruction was devastating to the marsh ecosystem, the goal was the commission of a humanitarian atrocity, and it is through this humanitarian prism that an attack on the environment becomes prosecutable.

3. Prosecution of Environmental Destruction as a Crime Against Humanity

Environmental destruction when considered in the humanitarian context can also be a crime against humanity. Under Article 12 of the Iraqi Statute and Article 7 of the Rome Statute, an individual can be convicted of crimes against humanity for committing acts "as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack."174 Unlike the ICC and Iraqi Statute environmental war crimes provision, Article 12 (like Article 7 of the Rome Statute) requires no nexus to armed conflict.175 The statute enumerates ten crimes, including "[o]ther inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health."176 This provision requires the commission of an act intended to cause suffering in a widespread or systematic way or pursuant to a State policy.177 Thus environmental destruction could be considered a crime against humanity when conducted with the intent to cause great suffering in a systematic or widespread manner, or pursuant to a State policy. The destruction becomes a crime because of its humanitarian consequences.

For a crime to fall under this catchall provision, it must be of a similar level of gravity to the enumerated crimes.178 For example, Professor M. Cherif Bassiouni includes "deprivation of their personal property and means of livelihood" as an inhumane act179 and others have noted that "crimes against humanity could include widespread or systematic attacks that are made in a discriminatory matter on ... environmental components directly affecting the life and physical well-being of a population."180 In Prosecutor v. Akayesu, the ICTR found the forced undressing of women a "crime of similar gravity" because of the indignity forced on the women. '81 Similarly, by draining the marshes, Hussein deprived the Marsh Arabs not only of their dignity but also of their livelihood, as well as their culture itself. As a result of the draining of the marshes, the water became polluted and crusted with salt, which, in turn, limited drinking water and the ability to obtain food.182 The reed beds, fish stocks, and buffalo populations were also depleted such that the Marsh Arabs were no longer able to sustain their ancient way of living, leading to the end of the Marsh Arab existence in the marshes. This suffering caused by the environmental attack is sufficient to fall under Article 12.

To prove a crime against humanity, a prosecutor must also show that the attack was widespread, systematic, or pursuant to a State policy.183 As described above, various documents and letters found during the Kurdish rebellion indicate a specific plan to rid the marshlands of their residents. Pursuant to this policy approved by Hussein, Iraqi officials built rivers and canals between and around the Euphrates and Tigris to direct the water away from the area and dry out the ancient marshes. The cumulative effect of the draining over the ten-year period '84 was the destruction of the marshes and the Marsh Arabs.

Like genocide, crimes against humanity are difficult to prove. Nevertheless, there is a cogent case to be made with respect to the Marsh Arabs. Consideration of environmental destruction as an attack against humanity at least raises environmental destruction to the consciousness of the international community. Although it does place environmental destruction within the context of humanitarian consideration and ignores the environmental impact beyond anthropocentric consequences, it is \the humanitarian impact that makes it a crime against humanity and therefore prosecutable.

V. CONCLUSION

Armed conflicts wreak havoc on different kinds of victims, but when the victim is the environment, perpetrators go unpunished. The international community has sought to protect the environment, both as an object and in its humanitarian capacity, through conventional and customary international laws. Yet the environment continues to suffer, and, since Nuremberg, no individual has been charged with an environmental crime. The reasons for this, examined above, range from ambiguity in the elements of the crime to political sensitivities such as victor's justice and our global social value system that allows environmental crimes to be overshadowed by humanitarian atrocities.

The unsuccessful attempts at environmental protection during wartime, combined with the substantial harm inflicted upon individuals, cultures and livelihoods, warrant a re-conception of the crime of environmental destruction. When environmental atrocities are conducted in furtherance of genocide or crimes against humanity, environmental destruction must be recognized and prosecuted because of the humanitarian consequences that result. As described, to successfully prosecute for environmental damage, a tribunal should not simply charge a perpetrator with environmental war crimes, but instead should prosecute those acts as tools in furtherance of humanitarian atrocities. Although the attack on the marshes was environmentally devastating in and of itself, it was a tool to achieve the genocide of the Marsh Arabs, and it is as an accelerator of the underlying atrocities that makes the environmental destruction prosecutable.

This approach overcomes many of the obstacles that prosecution of environmental war crimes faces. First, neither genocide nor crimes against humanity need a nexus to international conflict. Much of the environmental destruction in the past decade, in Rwanda and in Southern Iraq, occurred within contexts considered internal and thus would not fulfill this basic jurisdictional element. second, conviction for crimes against humanity or genocide would not require satisfying the threshold of "widespread, systematic or severe." Not only are these terms extraordinarily ambiguous, but environmental destruction cannot necessarily be measured in time or space. Furthermore, the smoke from the oil fires eventually cleared, and various institutions have begun to address the restoration and refilling of the Iraqi marshes.185 The human consequences may, however, be permanent. Drying the marshes displaced local populations to the point where the reconstitution of an ancient culture may be impossible. Third, international tribunals were created to convict individuals for imposition of human sufferingthus when the environment is considered within the humanitarian context, it fits into the lexicon of the tribunals. Finally, prison terms and even execution may seem appropriate punishment for the commission of crimes against humanity or genocide, but lack of a historical precedent for environmental crime prosecution makes it more difficult to assign a long-term prison sentence for environmental destruction in and of itself, especially if the perpetrator is already being convicted of other atrocities.

This is not to say that the environment should not be a protected object or that the prosecution of environmental destruction should not be undertaken. Academics and environmentalists have fought for decades to build recognition that the environment should be a protected good, even beyond its connection to humanitarian atrocities. But given the history of destruction, the failure of international conventional and customary laws to adequately protect the environment during armed conflict, and the lack of international prosecution of environmental destruction, prosecuting environmental attacks that further genocide or other crimes against humanity is an important intermediate step toward achieving the ultimate goal of prosecuting attacks that destroy the environment beyond humanitarian consequences.

TARA WEINSTEIN*

* J.D. expected '05, Georgetown University Law Center. M.Sc. '02, London School of Economics and Political Science. B.A. '99, Wesleyan University. The author would like to thank Professor David E. Scheffer for his great ideas and input into this project and Jakob, Mom, Dad, Jason, and Elana for continued support and for reading through countless drafts of this article.

Copyright Georgetown University Law Center Summer 2005

Source: Georgetown International Environmental Law Review

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