International Human Rights environmental law and humanitarian concerns. although international humanitarian law may well be humanized, it is not showing signs of being "environmentalized gap between international humanitarian law and environmental security should trouble international lawyers. Just as context for the infliction of wanton and extensive destruction to the environment This destruction creates profound ilar led conflict often creates a context in which the most serious human rights abuses occur. so too does it create a sir environmental insecurity. Part II of this Article explores the insecurities caused by the environmental consequences of armed conflict. Although the international community has shown considerable concern for the humanitarian consequences of war, 5 it has been significantly more hesitant in accounting for war's environmental consequences. It is for this reason that a very fruitful exploration of the progress that has been made and that still needs to be made in terms of harmonizing international humanitarian law with environmental protection can emerge from a study of how the international community monitors the environmental consequences of war. Part Ill examines the successes and failures of the international legal order in controlling these consequences and directs its focus on the ICC's jurisdiction to prosecute environmental war crimes. Part IV argues that the ICC may not be particularly well-suited to sanction environmentally destructive behavior. This raises the more penetrating question whether punitive criminal approaches pursued in isolation of other policy devices can ever promote environmental security. Part V is proscriptive, sketching ways in which the promotion of environmental security can be made more effective. Part V posits that the effective promotion of environmental security requires a multifaceted approach, which combines criminal prosecution, preventative measures litigation in the United States, involves more proactive use of international anti-discrimination conventions to gllardce and specially tailored remedies. An additional element of this multifaceted approach, inspired by environmental ju against the infliction of environmental insecurity on already disempowered groups. In the end, this encourages environmental security to become more closely integrated with both the protection of human rights and international humanitarian law l. Overview of the Environmental Consequences of Armed Conflict Modification or desecration of the natural environment has often been used as a strategic mechanism to safeguard state sovereignty. Over two millennia ago, Roman soldiers salted the soil of Carthage. Much more recently, Agent Orange was used to defoliate the Vietnamese jungle. In fact, it is estimated that, from 1962 to 1971, the United States sprayed twelve million gallons of defoliant over more than ten percent of what was then South vietnam. 7 United States estimates reveal that fourteen of the areas forests were destroyed. 8 Other estimates place the figure at nearly one-third. 9 Regardless of the exact numbers, Abroad stretches of the landscape are still bare of trees. @10 Civilians and soldiers who had been exposed to defoliants claim to have passed the ill-effects through their family lines. In fact, there are tens of thousands of hysically or mentally disabled children in Vietnam whose disabilities can be linked to the spraying of Agent Orange which occurred before they were born or even conceived. 11 During the 1990-1991 Gulf War, vast quantities of oil were dumped into the Persian Gulf to contaminate Kuwaits water supply. 12 Kuwaiti oil wells were also deliberately ignited by Iraqi troops. 13 Remedying the losses and damages suffered as a direct result of Iraq's unlawful invasion and occupation of Kuwait has prompted the creation of the United Nations Compensation Commission(hereinafter"UNCC" )as a subsidiary organ of the United Nations. 14 The UNCC is a unique initiative(part court of law, part arbitral tribunal) which adopts mass tort litigation approaches to settle claims and pay compensation, including for damage to the Kuwaiti environment and public health. Iraq, whose liability is presumed, is to pay reparations out of its frozen international assets as well as from a portion of its future oil export earnings. Thus far, 2.6 million claims have been filed. 15 The asserted value of these claims is $250 billion. 16 Reports of significant ecological destruction are also emerging from the Federal Republic of Yugoslavia(hereinafter FRY ). NATO aerial bombardment of the FRY under Operation Allied Force has resulted in the destruction of oil refining installations as well as storage facilities for other industrial products. Much of this destruction arose from the fertilizer and refinery complex in Pancevo resulted in the discharge of oil, gasoline, and dichloride(a powerful rcinogen)into the Danube river. 18 The bombardment of the Pancevo facility also caused the emission of toxi gases. 12 The result, according to one Western observer, is an"ecological disaster", with the pollution"spread[ingl downstream to Romania and bulgaria and then into the black Sea. 20 Scientists are also very concerned that extensive ://www.nsulaw.nova.edu/student/organizations/ilsajournal/6-2/drumbl%206-2.htm(2of27)[4/16/200110:12:22Pmenvironmental law and humanitarian concerns. Although international humanitarian law may well be “humanized,” it is not showing signs of being “environmentalized.” The gap between international humanitarian law and environmental security should trouble international lawyers. Just as armed conflict often creates a context in which the most serious human rights abuses occur, so too, does it create a similar context for the infliction of wanton and extensive destruction to the environment. This destruction creates profound environmental insecurity. Part II of this Article explores the insecurities caused by the environmental consequences of armed conflict. Although the international community has shown considerable concern for the humanitarian consequences of war,5 it has been significantly more hesitant in accounting for war’s environmental consequences. It is for this reason that a very fruitful exploration of the progress that has been made and that still needs to be made in terms of harmonizing international humanitarian law with environmental protection can emerge from a study of how the international community monitors the environmental consequences of war. Part III examines the successes and failures of the international legal order in controlling these consequences and directs its focus on the ICC’s jurisdiction to prosecute environmental war crimes. Part IV argues that the ICC may not be particularly well-suited to sanction environmentally destructive behavior. This raises the more penetrating question whether punitive criminal approaches pursued in isolation of other policy devices can ever promote environmental security. Part V is proscriptive, sketching ways in which the promotion of environmental security can be made more effective. Part V posits that the effective promotion of environmental security requires a multifaceted approach, which combines criminal prosecution, preventative measures, and specially tailored remedies. An additional element of this multifaceted approach, inspired by environmental justice litigation in the United States, involves more proactive use of international anti-discrimination conventions to guard against the infliction of environmental insecurity on already disempowered groups. In the end, this encourages environmental security to become more closely integrated with both the protection of human rights and international humanitarian law. II. Overview of the Environmental Consequences of Armed Conflict Modification or desecration of the natural environment has often been used as a strategic mechanism to safeguard state sovereignty. Over two millennia ago, Roman soldiers salted the soil of Carthage. Much more recently, Agent Orange was used to defoliate the Vietnamese jungle. In fact, it is estimated that, from 1962 to 1971, the United States sprayed twelve million gallons of defoliant over more than ten percent of what was then South Vietnam.7 United States estimates reveal that fourteen of the area’s forests were destroyed.8 Other estimates place the figure at nearly one-third.9 Regardless of the exact numbers, Abroad stretches of the landscape are still bare of trees.@10 Civilians and soldiers who had been exposed to defoliants claim to have passed the ill-effects through their family lines. In fact, there are tens of thousands of physically or mentally disabled children in Vietnam whose disabilities can be linked to the spraying of Agent Orange which occurred before they were born or even conceived.11 During the 1990-1991 Gulf War, vast quantities of oil were dumped into the Persian Gulf to contaminate Kuwait’s water supply.12 Kuwaiti oil wells were also deliberately ignited by Iraqi troops.13 Remedying the losses and damages suffered as a direct result of Iraq’s unlawful invasion and occupation of Kuwait has prompted the creation of the United Nations Compensation Commission (hereinafter “UNCC”) as a subsidiary organ of the United Nations.14 The UNCC is a unique initiative (part court of law, part arbitral tribunal) which adopts mass tort litigation approaches to settle claims and pay compensation, including for damage to the Kuwaiti environment and public health. Iraq, whose liability is presumed, is to pay reparations out of its frozen international assets as well as from a portion of its future oil export earnings. Thus far, 2.6 million claims have been filed.15 The asserted value of these claims is $250 billion.16 Reports of significant ecological destruction are also emerging from the Federal Republic of Yugoslavia (hereinafter “FRY”). NATO aerial bombardment of the FRY under Operation Allied Force has resulted in the destruction of oil refining installations as well as storage facilities for other industrial products. Much of this destruction arose from the indiscriminate effects of bombing from very high altitude levels.17 In particular, the destruction of a petrochemical, fertilizer and refinery complex in Pancevo resulted in the discharge of oil, gasoline, and dichloride (a powerful carcinogen) into the Danube river.18 The bombardment of the Pancevo facility also caused the emission of toxic gases.19 The result, according to one Western observer, is an “ecological disaster”, with the pollution “spread[ing] downstream to Romania and Bulgaria and then into the Black Sea.”20 Scientists are also very concerned that extensive International Human Rights http://www.nsulaw.nova.edu/student/organizations/ILSAjournal/6-2/Drumbl%206-2.htm (2 of 27) [4/16/2001 10:12:22 PM]