The Effective Deterrence of International Enmranmental Damage During Armed Conflict. A Case Analysis of the Persian Gulf War

• Author: Major Walter G. Sharp, Sr
• Pages: 01

1. Introduction

   For the true ~eruantsof the Most Gracious ore those who

   tread gently on the earth.'

   Postconflict peliods always have been times for examining the international legal norms that govern the initiation and conduct of hostilities.2 While this ecmtiny IS necessary for the law

   *United States Manne Corps. Currently assigned to the Office of The Judge Advocate General, US. Nay., laternational Law Division B S., 1978, Umted State. Naval Academy: J.D., 1984, Texas Tech. University School of Law: LL M , 1988, Georgetown University Law Center. LL.M., 1892, The Judge Adraste CsnsraYB School. mor assignments include Assmtant OfFcer m Chnrgs and Prosecutor, Umted Stntea Ns7 Legal Senice Office Detachment, Rota, Spain, 1988-1391; mal Cousel and Legal Asalatance Attorney, Mame Corpa Combat Devaiopmsnt Command, Qusntieo. Virginia, 1984.1998; Cammandmg OEctr. Headquarters Battery, 2nd Bsttdion, 11th Marinel, lit Marine Didmon (REIN) FMF, Camp Pendleton, Callforma, 1981. Mambar of the Bar of the State of Teras.This amcls 8% bnssd upon a writtan them dissertation that tha author ivbrmttsd to aatmb, in part, the Maiter of Law8 degree requrementi for the 40th Judge Advacata OBcer Graduate Course.

   'AI Qm'm 2563 reprinted in WILLTAM M. m x

   ET *L, ON Iaas~m MODERN W*Rp*RE *ND THE ENIIRO~NE~-A

   CUE S m v OP w GULF WAF, (forthcoming 1982) (manuampt at ii. on file mth Greeapenra Internnlmnal, London, Eng.).

   *See JOHN N. MOO-, L*w ._o The G n e ~ m ~

   Mrssio~ 1-2. 3 n3 (1904).

   to mature,S assuming that the ensting nomatwe legal stmcture is weak-and therefore the cause of the conflict or of some atrocity committed during the eanfliekia counterproductive.' The fallacy of this assumption 18 immediately apparent in recognizing that the United Nations Charter clearly prohibited,s but did not prevent, Saddam Husser'~ invasion of Kuwait on August 2, 1990.6 A thorough exammation of the legal order that proscribes ennranmental damage during armed conflict therefore should look at the dynamics of deterrence, and should analyze qualitatively the proscriptive nature of applicable law 7

   'See, e.g , Jamea P T e q . The Envrranmtnl and the Iaus of War The Impact of Desert Storm, NAVAL WAX C REV, Val XLV. No 1, Winter 1992, at 61.Colonel Terry eoncludea ~n hla atudy that an ennronmmtal protectwe reglme that 18 too restrictive may prohibit the YBB of modem weapons that have some inherent meidsntnl and collateral ennronmenfal immct Such a ienme not onl~

   . .

   century cansiils of a synergy between a non.democranc regime bent on the BI~T~BBIVO m e of force for mine extenmn and an overall ayatem-wide failure to

   lU.N C-mn an. 2, ¶ 4 prondes "L~111 Members shall refram m then mtemationd relations from the threat or m e of farce against tha terntonal mfegnty or polheal mdspndence of my atate, or in mj ather manner mcenamtnl wfh the Purpoaea 01 the United Nationa " See elso United Nat~ona SeNnty Caunnl Reaalution 660 (Aug 2, 1990) [hereinafter U N Doc SIRESI66O (199Q)l.reprinted zn THE KLC-*IT CRIBIS. BASIC D o o u ~ e ~ r s

   66 (E Lauterpaeht tial eds 19911 [hereinafter THE Krnvui C ~ ~ a i n l ,

   IN rm

   GULF (farthcommg 1992, Oceans. lac.) (manusenpt st 21. on file wth author at the Umueraity of Yirgnir Schml of L w l rIraq'a bhtzkneg I ~ Y B ~ L O D and

   attempted annexshm of Kuxut and related Iraqi setions m the Ovlf cnna stand m profovnd opposition to the mle of law "I, Jemey F. Addieatt. The L'mled Stotra ofamerieo, Chompion of lk Rule of Iaw OF lhr Nu World OrBrt, F u J I~T'LL , Fall 1992. at 63 [The fact that Iraq was B member of the Umted Nationa and bound by the pmcwl~a relatmg to rlapute settlement through mean8 other than the use of forre had no &set whnbmver on Ita nctmtiea")

   'Inrerestingly, Saddam Husaem'a invamn of Kvwart violated lslamie law

   88 well See A. An.Na'un. lalomrc Iaw, Intemntionol Relat~ans, and Human Rights Chailenge ond &sponse. 20 Cornu. INT'L L.J. 317 11987) (explaulmg that any war not deaigned to propagate lalam nolatea Ialamir Iaw.1, noted bn RPeter Mastertan, T k Persian Gulf We, Ciimea Trials, ARMI LAW,

   June 1991, st

   JOHN N MOORE. CRISIS

   9 n.25.

   'See Addxott, supra note 5, at 78 Iasaertmg that suthontatm worda unsupported by effective power mates such B deterrence failure that "Iraq made "0 real attempt f(l $Yen S0"sePI. let alone ,uatify. Ita nolatmna of Ilnternatlonsl ISW11)

   Saddam Hussein inflicted unprecedented environmental damage on the Persian Gulf regime This extensive environmental damage was a focal point, if not a rallying cry, for various organizations to advocate a Fifth Geneva Convention-a convention founded on the assertion that the prohibitions under exlsting law are insufficient to protect the environment adequately from the effects of hostilities. This article will examine the need far this proposed convention. The recent Persian Gulf War and the subsequent response of the international community wll eeme as models for evaluating the adequacy and deterrent value of the existing legal framework that proscribes environmental damage during armed conflict. The propriety of recent proposals that purport to strenghen the international legal order also will be analyzed. These analyses provide the framework to conclude that the current legal order clearly proscribes environmental damage that is not justified by military necessity dunng armed conflict; equally clear, however. is that no institutionalized mechanism exists at the international level to strengthen deterrence by facilitating individual and state accountability far even the most flagrant violations of law. This study proposes a system tostrengthen the ability of the international community to take action, and proposes a stronger role far the United States until the international system develops a more effective system of redress.

   This article addresses only armed conflict of en rnternatianal character. The mope is restricted for several reasons. First, the fundamental principles that prohibit environmental damage during armed conflict are those of the law of war, which generally apply only during international armed conflict and not internal canflicts.8 Second, environmental damage during an internal conflict already is governed by the broader peacetime regime that protects the environment and governs transboundary pollution issues. This peacetime regime wll govern the state within which an internal conflict occurs by limiting the state's conduct affecting the environment. The actions of the insurgent group then should be treated 88 a enminal matter under domestic law. In contrast, the part of this peacetime regime that relates to the kind of

   'See dscueson. inpa part VLA. for a detailed mount of the ennronmental damage. Althovgh ths Btudy fwuass on the pmacnphon of ennmnmental damage. it II/ not intended to belittle the Iraq human tighta nolstmna. Aetudly, the ennronmenfal damage palea m cornpanrim ta ths muage human rights nolatione. For a more dotallad deamiptmn of ths Iraq1 torture, ma~mmg, rape, ~ m s n extcutmnli. and maaa ertraiudicial killinea of man. women children.

   catastrophic environmental damage which occurred during the Persian Gulf War must be addressed separately. This regime ia important because the applicability of peacetime norms is not terminated automatically by armed canflict.10

   11. The Dynamics of DeterrenceThe real lesson ... was not that "low" was ineffectrue, bet rather that unenforced law is ineffectwe".

   A. The Critical Necessity for Deterrence

   Twentieth century technology demands that we meet its potential destructive forces with overwhelming deterrents. The Peraian Gulf War was unprecedented in its '"intensity, precision, and lethality," and "in the amount of destmction inflicted on a nation with conventional weapons in 80 short a period of time."12 If we do not actively seek to deter aggression and violations of the laws of armed conflict, or if we fail to condemn aggression and prosecute war crimes, then we merely invite future wars and war climes. In confronting the potential destructive force of today's technology, this is B risk the international community should not be willing to hazard.

   This study will not examine the illegality of the initial use of force by Iraq, or other violations of international law such as terrorism; however, the principles of deterrence are equally applicable to these issues. The conclusions and recommendations in this study therefore are transferable to a larger continuum of violations of international law than just environmental damage during armed conflict

   B. The Principles of Deterrence

   The deterrent effect of principles is not coextensive mth the principles of deterrenee. Simply having a normative international legal order prohibiting endronmental damage is insufficient to deter violations of those norms.13 The existence of proscnptive norms that are not enforced actually undermines the value of the entire legal Bystem. Even B brief discussion of deterrence and Ite

   2ySee injio part III.A4. for a Lseussion aupporting thia proposition. "Rabert F. Tumer, Don't La Eaddom Eaeope Wahoui ma1 ATUVTA J.iAruwr~ CONST., Aug 31, 1981. at 62.'SARKlW ET AL.. *up,.¶ note 1. at 5"See Addimtt supra note 5, at 76 ("word8 rntbovt corresponding force haye

   little sffeet IL the deterrenee of unlawhl acfiuliea")

   ieeai ENVIRONMENT AND ARMED CONFLICT 5

   relationship to all aspects of a national foreign policy is far beyond the scope of this study.

   Effective deterrence within the context of a model legal system IS comprised of three indispensable elements. First, the fundamental cornerstone of deterrence is a sat of clear proscriptive noms. A qualitative analysis of the existing international legal framework proscribing environmental damage during armed conflict therefore is important. Second, these proscriptive noms must be built upon by an established mechanism that facilitates individual and state accountability for violations of those norms. Accordingly, discussing the existing international...