Developments in the Law of Environmental Reparations
Developments in the Law of Environmental Reparations
A Case Study of the UN Compensation Commission
Abstract and Keywords
The United Nations Compensation Commission (‘UNCC’) is a unique model for liability and compensation of environmental damage in an international context, influencing both jus in bello and jus post bellum. The UNCC provided a legal process that catalogued, assessed, and awarded money to pay to clean and repair the damaged soil, water, coastal ecosystems, and other harms resulting from the 1990–1 Gulf War. Its contributions include integration of environmental law principles into the reparations process; use of advanced techniques for assessment of environmental damage; and use of a multilateral process in a way that balanced confidentiality and transparency. The UNCC environmental programme, viewed as an innovative approach to justice after war, highlights the contribution that the environmental integrity norm can make.
The United Nations Compensation Commission (‘UNCC’) is a unique model for liability and compensation of environmental damage in an international context, influencing both jus in bello and jus post bellum. The 1990–1 Gulf War to evict Iraq from Kuwait was a public spectacle of environmental damage. It was followed by the UNCC’s more discreet legal process that catalogued, assessed, and awarded money to pay to clean and repair the damaged soil, water, coastal ecosystems, and other harms. The UNCC’s contributions include integration of environmental law principles into the reparations process; use of advanced techniques for assessment of environmental damage; and use of a multilateral process in a way that balanced confidentiality and transparency.
The UNCC environmental programme advanced international law most significantly by serving notice that environmental damage caused in relation to an armed conflict can be a culpable offence. In 1995, it was said that environment is a new concept and that ‘new’ environmental delicts will be subject to the Nuremberg defendants’ claim that they are ex post facto and therefore illegitimate.1 Participants in conflicts today cannot make that claim. In fact, many other bodies now allow legal claims for environmental losses.2 The Eritrea–Ethiopia Claims Commission, established in 2000 (p.330) by a treaty between the belligerents to settle claims for loss, damage, or injury of either government and its nationals, accepted environmental claims.3 The UN Register of Damage, established in 2009, can receive claims for environmental damage in its public claims category.4 The UN General Assembly adopted resolutions calling for compensation of coastal cleaning and remediation costs for oil spill damage resulting from the Israeli Air Force strikes on oil storage tanks in the vicinity of the Lebanese Jiyeh electric power plant in 2006, which posed potential harm to human health, biodiversity, fisheries, and tourism in Lebanon.5 A UN Development Programme study ordered in relation to the Lebanese oil spill referred to the UNCC as a ‘precedent major oil spill compensation regime for spills arising from armed hostilities’ and it was even suggested that the UNCC might be used to ‘secure the relevant compensations’.6
Environmental liability resulted from Iraq’s violation of jus ad bellum. After Iraq invaded the neighbouring state of Kuwait on 1 August 1990, the UN Security Council condemned its actions as a breach of international peace and security under the UN Charter7 and took note that Iraq was liable for any loss, damage, or injury.8 When Iraq refused to withdraw from Kuwait, a coalition of states, authorized by the Security Council, brought military force to bear on Iraq.9 A few months of sharp warfare ensued, until the Iraqi government accepted the terms of a ceasefire that included the formation of a boundary demarcation commission and the establishment of an international civil tribunal to assess reparations payable by Iraq to states harmed by Iraq’s aggressive acts, the UNCC.10 The (p.331) boundary commission completed its task and the results were accepted by the parties.11
The UNCC was established in 1991, completed its review of claims in 2005, and in 2015 began winding down its operations.12 Iraq paid nearly US$ 48 billion in compensation as of October 2015, for all claims categories.13 Of this, awards were made for a total of over US$ 5.26 billion for environmental assessment, remediation, restoration, and response activities; nearly US$ 85 billion had been sought for environmental damage in 168 claims.14 For comparison, the US Government reached a settlement to resolve BP’s liability for natural resource injuries from the Deepwater Horizon oil spill whereby BP would pay up to US$ 8.8 billion for restoration.15
The environmental damage from the 1990–1 conflict was varied and widespread. An estimated 10.8 million barrels of oil that was intentionally dumped in the Persian Gulf by Iraqi forces contaminated over 600 kilometres of the Saudi Arabian coastline, with toxicity that will likely persist for decades more.16 In Kuwait, over 1 billion barrels of oil was released when Iraqi forces detonated over 600 oil wells, contaminating groundwater and desert ecology.17 Further damage to Kuwait’s desert was caused by ‘the construction of military fortifications, including ditches, berms, bunkers, trenches, and (p.332) pits; the laying and clearance of mines; and the extensive movement of military vehicles and personnel’.18 Iran, Jordan, and Turkey experienced the passage of hundreds of thousands of refugees and their livestock from Iraq and Kuwait, damaging vegetation and water resources.19 After the conflict, ‘over 1.6 million mines and more than 109,000 metric tons of other unexploded ordnance were scattered in cities and towns, oil facilities, beaches, coastal waters and desert areas of Kuwait’.20 Claimants generally sought compensation to clean up pollution, restore damaged ecosystems, and monitor public health and the environment.
Almost certainly three factors shaped the choice of requiring state responsibility-based reparations from Iraq and the inclusion of environmental losses in the scope:
• There was a clear violation of the UN Charter: the invasion of a neighbouring state, upon which even Iraq’s supporters agreed;21
• There was highly visible, region-wide, intentional environmental damage; and
• The respondent state, Iraq, had the potential to generate sufficient wealth with its oil resources.
International civil tribunals, one of the most familiar features of jus post bellum, have long been used to provide compensation for civilians harmed by armed conflicts,22 a process that is thought to hasten recovery and reconciliation between the belligerents and to re-establish the rule of law.23 The basic justice theory that requires a wrongdoer to compensate the victim of wrongful action finds expression in international law in this doctrine.24 This was certainly a goal of the UNCC. Reports of harms inflicted by Iraq included, besides the environmental damage discussed here: summary execution, (p.333) rape, torture, taking of hostages, forcible conscription, beatings, organized pillage, looting, and damage to property.25 In the few years between the resolution of the majority of the claims and the 2003 US invasion of Iraq, reconciliation appeared to be progressing through re-establishment of commercial and diplomatic relations, at least with respect to injured states outside the region. While the UNCC provided redress in the aftermath of a conflict that had been ended by the overwhelming military force of one side, it stands in contrast to the Ethiopia–Eritrea Claims Commission which helped to displace the conflict from the battlefield to the tribunal.26
All such tribunals have the potential to create a historical documentation of what occurred. Despite the brevity of the panel reports, the UNCC did create a remarkable record of the many harms and costs of war. The environmental claims review is detailed in six reports that summarize the parties’ factual and legal arguments and the commissioners’ evaluations of evidence and law.27 The UNCC also made procedural and substantive innovations that advanced the law of reparations in ways that have been noted by scholars and followed by practitioners.28
The remainder of this chapter describes the UNCC as a case study of the only jus post bellum institution to date to look at a broad scope of environmental harms for armed conflict and to fashion a remedy. The emphasis is on the institutional and procedural choices made and the innovations and adaptations adopted to process the environmental damage claims while achieving the substantive goal of environmental restoration.
14.2 Constitution of the UNCC and Choice of Civil or Criminal Law
UN Security Council resolutions 687 (1991) and 692 were the constituent instruments for the UNCC.29 The Security Council acted under its UN Charter, Chapter VII, authority to take measures to maintain or restore international peace and security.30 All (p.334) parties to the conflict were parties to the UN Charter. Through its resolution 687, the Security Council confirmed Iraq’s liability and the scope of losses for which Iraq owed reparations by stating it:
Reaffirms that Iraq, without prejudice to the debts and obligations of Iraq arising prior to 2 August 1990, which will be addressed through the normal mechanisms, 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.
Iraq had breached its primary international law obligations—peaceful settlement of disputes and refraining from the threat or use of force—and therefore the secondary obligations of state responsibility required Iraq to provide reparations.31
In resolution 687 the Security Council also set the UNCC’s institutional mandate by deciding ‘to create a fund to pay compensation … and to establish a Commission that will administer the fund’ and by directing the Secretary-General to develop recommendations to the Security Council for
administration of the fund; mechanisms for determining the appropriate level of Iraq’s contribution to the fund … arrangements for ensuring that payments are made to the fund; the process by which funds will be allocated and claims paid; appropriate procedures for evaluating losses, listing claims and verifying their validity and resolving disputed claims in respect of Iraq’s liability as specified in paragraph 16 above; and the composition of the Commission.32
The UNCC thus established was the only international judicial body established for the Gulf War.
In the months after the invasion of Kuwait, the Republic of Iraq and individual Iraqi perpetrators of offences were threatened with both criminal and civil legal sanctions. Taxonomically, war crimes would be violations of jus in bello related to illegal activities in fighting the war. The alternative model that was actually adopted was to find Iraq liable for violations of jus ad bellum, the illegal act of going to war in the first place. (p.335) Breaches of international environmental law could, less plausibly, also have been the basis for legal proceedings, depending on the specific instrument.33
No international criminal tribunal was established, however. Saddam Hussein continued as President of Iraq, and Iraqi prisoners of war were quickly repatriated without being charged as war criminals.34 Some of the acts committed during the conflict, such as abuse of prisoners of war and the civilian population, were clear violations of the law of war and would likely have qualified as war crimes. The serious, intentional environmental damage that was ordered by the Iraqi leadership might have qualified as a war crime.35 The US president suggested that, inter alia, ‘the environmental terror’ could be a basis for a war crimes prosecution against Saddam Hussein.36 According to Mark Weller, the February 1991 land war was at least in part the result of a breakdown in negotiations over the question of immunity from war crimes trials and reparations.37 Speculation about the reason why criminal prosecutions were not pursued ranged from opposition by governments in the region to the impossibility of seizing the potential defendants. The purpose of criminal law as a deterrent is a common thread running through analysis of President George H.W. Bush’s threats of criminal sanctions—intended, some say, to intimidate Saddam Hussein—and the subsequent relinquishment of criminal charges.38
In 1991 the international community would have had to establish an ad hoc criminal tribunal if domestic tribunals were not competent or capable of trying war crimes; the standing forum for war crimes prosecutions, the International Criminal Court, did not begin functioning until 2002. Criminal prosecution would have been based on customary and treaty law in force with respect to the parties in 1990 and 1991. The Rome Statute, which might be considered a statement of the customary international law at that time, considers intentional, severe violations of the environmental integrity norm a war crime.39 However, some scholars have argued that the stringent threshold for the severity of damage considered a war crime, ‘widespread, long-term and severe damage (p.336) to the natural environment’, would not have been met even by the terrible destruction intentionally caused by the Iraqi military forces.40 Customary international law, as reflected in Hague Convention IV of 1907, Regulations Article 23(g), and Geneva Convention IV of 1949, Article 147 could have provided a basis for an action claiming grave breach.41 Such claims would have been subject to Iraq’s defence that the oil well fires and oil spills were defensive measures that satisfied the customary international law principles of necessity, distinction, and proportionality.42 Fact-finding to disprove Iraq’s defence would have been difficult if not impossible, given the ‘fog of war’ problem and the novelty of the claims.
These challenges aside, international criminal law is not likely to achieve peacebuilding goals with respect to environmental harms. Had a criminal prosecution against Saddam Hussein and his officers succeeded, it would not have resulted in restoration of the environmental damage that resulted from the Gulf War. Imprisoning guilty individuals might have had a deterrent effect on future belligerents; it might have been understood by the international community to re-establish the rule of law; there might have been satisfaction in bringing the perpetrators to account.43 But that alone would not have protected Kuwait’s groundwater or restored Saudi Arabia’s coastal ecosystems.44
Yet another alternative approach could have been based on Iraq’s breach of international humanitarian law in its conduct of the war, resulting in obligations under a theory of state (rather than individual) responsibility.45 This would have provided a restrictive scope for claims against Iraq, and might have entirely excluded claims for environmental damage. Iraq and Kuwait were parties to some of the relevant conventions at the time of the conflict,46 but not to Additional Protocol I, which has specific provisions prohibiting environmental harm. A report prepared for the International Criminal Tribunal for the Former Yugoslavia in relation to claims of Yugoslavia against NATO forces for the 1999 Kosovo bombing observed that Article 55 of Additional Protocol I might be considered customary international law and thus applicable to non-parties.47 Even had a similar conclusion been reached regarding the Gulf War, Additional Protocol I imposes the same threshold requirement that applies to the Rome Statute—‘widespread, long-term and severe damage to the natural environment’—and (p.337) that would likely have precluded successful claims. It is an open question whether the dramatic oil well fires and oil spills would have challenged this perception.48
Instead, the UN Security Council members decided to focus on accountability through civil proceedings, based on theories of treaty law and state responsibility. In this framing, reparations claims for environmental losses did not need an independent legal basis in the Law of Armed Conflict.49
14.3 Structure, Procedures, and Substantive Law
The UNCC Governing Council made policy and took the ultimate decisions on awards.50 The Governing Council comprised representatives of the fifteen Security Council member states, which generally maintain missions in Geneva to work with the many international agencies based there. The commissioners, responsible for reviewing the claims and recommending awards, came to Geneva as often as monthly to work with the secretariat and to deliberate.
When ad hoc tribunals are established, their location can be a sensitive issue. The secretariat was sited at the UN Office at Geneva, Switzerland,51 for several reasons. The conflict had affected a large number of states outside the region, nearly 100 of which made claims. It was also necessary to work in English, because the computer systems that were used to manage over 2 million individual claims could only be programmed in English.52 And, given the ongoing tension between the parties, it would not have been feasible to locate the commission in any of the principal states in the region.
The UNCC was an ad hoc reparations body with jurisdiction limited to claims against Iraq stemming from its invasion and occupation of Kuwait, based on Security Council resolution 687.53 The UNCC’s jurisdiction was not exclusive; claims could have been brought in other fora, such as domestic courts, therefore the UNCC took careful measures to prevent multiple recoveries.54 The commission was to resolve disputed claims ‘in respect of Iraq’s liability as specified in paragraph 16’, that is, 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.55
(p.338) UNCC Governing Council decision 7 provided additional detailed criteria for the jurisdiction of different categories of claims, discussed below.56 A jurisdictional exclusion relevant to the environmental claims was ‘the costs of the Allied Coalition Forces, including those of military operations against Iraq’.57 Although the environmental panel specified that where military personnel and equipment had been used to respond to environmental damage, threat of damage to the environment, or threat to civilian public health, such costs could be compensable, it did reject some claims as costs of Allied Coalition Forces.58
Under resolution 687 and UNCC Governing Council decisions 7 and 10, all states, their nationals and corporations, and international organizations, could claim against Iraq. The Republic of Iraq could not bring claims against Coalition forces for violations of jus in bello.59 Iraqi citizens, unless they had bona fide dual nationality, could not bring claims against Iraq.60 Governing Council decision 7—intended to guide claimants in preparing their claims—categorized compensable losses into categories A–F, identified claimant standing for each category, and stated the evidentiary standard for the category.61 The first three categories, A, B, and C, were for individual ‘humanitarian’ claims; D, E, and F were for larger claims by, respectively, individuals, corporations, and governments and intergovernmental organizations. Environmental claims were assigned to category F, claims of governments and international organizations, and subcategory F4, environmental claims.
The F4 public health claims revealed a tension in the approach—Iraq argued that individuals had already been allowed to claim for personal injury and mental pain and anguish in categories B, C, and D.62 The UNCC rejected this view. The F4 panel stated that ‘Where a claim is brought by a State in such a case, the State is not acting on behalf of the injured national but rather is asserting its own right to ensure compliance with the rules of international law in respect of its nationals.’63 It therefore considered such claims compensable in principle and undertook a careful case-by-case analysis to ensure that there was no double compensation and that other relevant rules were observed—such as the criteria for compensating mental pain and anguish.64
(p.339) States alone sought compensation for damage to the environment and damage caused by environmental harms. This approach is consistent with the public trust doctrine, which considers government as the trustee of elements of the environment on behalf of the community interest.65 Other bodies that succeeded the UNCC followed this approach, notably the Eritrea–Ethiopia Claims Commission and the UN Register of Damage.66 At the UNCC, no claims were brought on behalf of the international community, though arguably such claims would have been receivable by the UNCC and could perhaps have been made by an international organization such as the UN Environment Programme. An appropriate case would have been a claim to restore damage to marine areas beyond national jurisdiction, where no state would be likely to bring a claim. The experiment could not be made, since the entire Persian Gulf lies within national maritime boundaries.
The UNCC interpreted its temporal jurisdiction, from the date of the invasion on 2 August 1990, to the end of the war on 2 March 1991, with a certain flexibility. For example, the F4 panel recognized that refugees from the conflict continued to flow into Jordan after 2 March and therefore accepted claims for review where the cause of the environmental damage occurred as late as 1 September 1991.67
Neither resolution 687 nor any Governing Council decision addresses the question of location of the damage.68 The environmental panel followed the approach taken by other UNCC panels, concluding that ‘expenses resulting from reasonable monitoring and assessment of loss or damage that may have occurred outside Iraq or Kuwait are, in principle, compensable’.69
As a subsidiary organ of the UN Security Council, the applicable law for the UNCC was international law and decisions of the UN Security Council.70 UN Security Council resolutions, such as resolution 687, are generally considered binding as international law.71 Security Council resolution 687 established Iraq’s liability,72 the direct causation requirement, the scope of harms covered, and the remedy.73
While this provided the framing rules for the UNCC, its internal law specified the procedural and additional substantive rules that were applied to analysis of the claims. These rules were issued as decisions of the Governing Council, whose legal authority derived from the UN Charter and international law; its political authority derived from its membership: the fifteen Security Council member states. Governing Council decision 10 set the UNCC’s procedural rules.74 The procedural rules, Article 31, directed the panels to apply ‘Security Council resolution 687 (1991) and other relevant security Council resolutions, the criteria established by the Governing Council for particular categories of claims, and any pertinent decisions of the Governing council [and] other relevant rules of international law’. Under the procedural rules, Article 43, the commissioners had the option of also relying ‘on the relevant UNCITRAL [UN Commission on International Trade Law] Rules’ or seeking direction from the Governing Council.
14.3.3 Due process
The UN Secretary-General described the UNCC’s nature and task:
The Commission is not a court or an arbitral tribunal before which the parties appear; it is a political organ that performs an essentially fact-finding function of examining claims, verifying their validity, evaluating losses, assessing payments and resolving disputed claims. It is only in this last respect that a quasi-judicial function may be involved. Given the nature of the Commission, it is all the more important that (p.341) some element of due process be built into the procedure. It will be the function of the Commissioners to provide this element.75
As every claim was disputed by Iraq, the commissioners had a substantial amount of ‘quasi-judicial’ work to do.
The Secretary-General’s mandate to the commissioners to provide ‘some element of due process’ was implemented within the framework of rules established by the Governing Council. Of the range of procedures used in international courts and tribunals and in claims resolution processes, the UNCC set in place a number of measures with the goal of balancing fairness, due process, and rapid review of the claims.76
Structurally, the commissioners and their fact-finding function were strictly segregated from the political branch, the Governing Council.77 Commissioners were selected to be impartial, distinguished experts in law and other fields who served in their personal capacity, having been recommended by the executive secretary, nominated by the Secretary-General, and appointed by the Governing Council.78 Commissioners served in panels of three, each member being of a different nationality.79 The commissioners had the ability to request supplemental evidence from Iraq and other parties, and made findings of fact and law on which they based award recommendations.
Iraq and claimant governments were provided information about the number and nationality of claimants, the amount of compensation sought, and significant legal and factual issues raised by the claims through ‘Article 16 reports’, which also invited Iraq and other governments to provide views and information to the UNCC.80 Iraq was not always given the full claim files in the earlier phase of the UNCC but cooperation between the environmental panel, the legal officers working with the panel, and the Governing Council led to a change. Extensive, crucial information from monitoring and assessment studies funded by the first instalment of environmental claims was being sent to the UNCC; all agreed that it was necessary for Iraq to have this information.
The commissioners and teams of lawyers and accountants from the UNCC secretariat worked together on instalments of claims.81 A typical environmental panel meeting (p.342) would involve the three commissioners and the F4 team reviewing the written submissions of claimants, the comments of Iraq and claimant states on the legal and factual issues identified in so-called ‘Article 16 reports’, claimant responses to clarifying ‘Article 34 questions’ developed by the secretariat, the reports of expert consultants retained by the UNCC including reports from verification site missions, Iraq’s comments on the full claim file (the claims as supplemented with information requested by the UNCC from claimants and the claimants’ reports of data and analysis from the monitoring and assessment projects), and submissions made by Iraq and claimants at oral proceedings.82 The panel and team assigned to an instalment prepared a report to the Governing Council on the panel’s findings and recommendations. The Governing Council then voted whether to adopt the panel report. Approved awards were then put into the queue for payment. Governing Council decisions could not be appealed, although corrections for computational, clerical, typographical, or other errors were possible.83
While emphasis was initially placed on speedy review, it became clear that the environmental claims would need more time than the A, B, and C categories. Given their high value, complexity, and novelty, more procedural access for Iraq was requested by the environmental panel and team, and was deemed appropriate by the Governing Council. Indeed, speed was a central justification for the initial procedural restrictions on Iraq’s ability to challenge claims, based on the negative experience at the Iran–US Claims Tribunal of procedural delays used by the respondent and that tribunal’s failure to prioritize and rapidly address humanitarian claims.84 Matheson observed that ‘respondent states are likely to raise jurisdictional objections at every available opportunity’85 and Iraq’s obstreperous approach bore this out in the first years86 and even up until the first oral proceeding held for the environmental claims. The effect was for the UNCC to limit Iraq’s participation in order to maintain the pace of claims review. Another consideration was that the UN sanctions regimes restricted the funds available to hire counsel and experts.87 On the other hand, Iraq was still being run by Saddam Hussein, the man who ordered the invasion, and tensions remained high.88
(p.343) Over time, Iraq was gradually reintegrated politically and commercially into the international community and Iraq shifted from an uncooperative stance with respect to the UNCC to a more constructive approach.89 Almost ten years into the UNCC work programme, as the environmental claims review was beginning, the Governing Council revised its procedures, extending its own time to review panel reports before voting on adoption from thirty days to three months.90 The Governing Council directed the panels reviewing high-value, complex, or novel claims ‘to provide it in their reports, to the extent possible, with non-confidential factual and technical information that served as the basis of the panels’ recommendations’.91 The discussion of the evidence reviewed, the parties’ arguments and counter-arguments, and the F4 panel’s reasoning are set out for each of the claims. While not given in the level of detail found in the judgments of standing international tribunals, there is sufficient information to allow a reader to understand how the award recommendations were reached based on the panel’s assessment of the evidence presented, expert views, and Iraqi and claimant arguments.
In roughly the same time period, a Governing Council decision approved the procedures used by the environmental programme, which included sending all claim files (claim form, statement of claim, and all of the documents provided by the claimant as attached to the statement of claim) to Iraq, allowing Iraq additional time to review and respond to the information, providing oral proceedings, and urging the environmental panel ‘to use its experts to ensure the full development of the facts and relevant technical issues, as well as to obtain the full range of views including those of the claimants and Iraq’.92
The instalments of environmental claims took an average of nineteen months each to complete; considerably longer than the six months allowed under the procedural rules.93 This illustrated both the tradeoff of efficiency for procedural access by the parties and the significant size and complexity of the 168 environmental claims. Even with the extensions of time, when compared to tribunals like the International Court of Justice, the work was done at lightning speed.
14.3.4 Technical assistance for Iraq
The Governing Council realized that the environmental claims posed exceptional difficulties for Iraq, from both a legal and a scientific perspective. Additionally, the sanctions programme restricted Iraq’s ability to hire experts on its own. At the same session in which it approved the first environmental awards, the Governing Council decided to provide up to US$ 5 million from the Compensation Fund for Iraq to retain appropriate assistance ‘to facilitate the promotion of legitimate interests of Iraq with respect (p.344) to “F4” claims, which give rise to particular questions due to their complexity and the limited amount of relevant international practice’.94 Eventually a total of US$ 14 million was authorized.95 Iraq was able to obtain world-class legal and technical consultants to assist with its response to the environmental claims.96
14.3.5 Transparency and confidentiality
All panel reports and Governing Council decisions were published on the UNCC website shortly after they were translated into the official UN languages. They provide a rich source of information about the nature of the environmental claims, the arguments of Iraq and the claimants, the evidence submitted, and the reasoning of the commissioners.97 However, the published documents are the tip of the iceberg. A vast amount of information was subject to a rule of confidentiality, including: original claim files, often amounting to hundreds of pages; reports from the UNCC’s experts; Iraq’s submissions; transcripts of oral proceedings; internal policies; financial tracking of claims, awards, and payments; and more.98
There are strong arguments for a high level of transparency, especially for environmental matters, where transparency and public participation are considered to be obligations, supported by Rio Principle 10 and the Aarhus Convention.99 Some of the scientific and technical expert consultants to the environmental panel have stated that ‘an open process and a public record builds confidence in the integrity of decision-making and allows all parties to learn and respond as the process moves forward’.100 They recommended the example of US procedures for Natural Resource Damage Assessment, ‘where a public administrative record is created to document both technical and legal findings in detail’.101 This view was fully supported by the environmental commissioners and team.102
(p.345) However, there are also strong claims for confidentiality in certain stages of judicial and quasi-judicial proceedings, based on the need for free deliberation between decision-makers and risks to parties. The latter is particularly a concern for reparations proceedings, where the claimant and respondent have already engaged in violence. An additional justification was offered by a UN archivist when I queried the need for continued confidentiality of all claim documents: the protection of individual claimants from retaliation, which he said was a standard UN practice in human rights cases. Even in dispute settlement proceedings unrelated to armed conflict a measure of confidentiality is expected. Thus, while the Aarhus Convention, Article 9(4), states that decisions of courts shall be publicly accessible, it makes no reference to transparency with respect to pleadings, oral proceedings, or judicial deliberations. Restrictions on participation and transparency need to be evaluated in light of the circumstances when an institution is established, UN practice, and the concerns of states participating in the reparations commission.
Two factors appear to weigh heavily in the calculus made by states when a reparations programme is designed. First, those who have been damaged by conflict are likely to have concerns about sharing information identifying damaged sites for security and other reasons, which will inhibit transparency mechanisms and activities. Second, perpetrators of environmental damage do not want to be labelled wrongdoers, even if they are willing to pay compensation. The history of ex gratia payments between states, which are generally opaque, is much older and more robust than the modern claims commission approach. For example, when the United States hit the Chinese Embassy during the Kosovo bombing, it offered an ex gratia payment to China without acknowledging wrongdoing. This process allows both aggressors and victims to retain more control over information than in proceedings with third party decision-makers like the UNCC, where a reasoned written decision explains the factual findings of the commissioners, albeit in a limited fashion.
14.3.6 Evidentiary standard
It remained for the commissioners to make findings of fact and to apply law to the facts, particularly: the existence, nature, and extent of damage; the causal link between the claimed harm and Iraq’s invasion and occupation of Kuwait; and the monetary value of the loss. The UNCC procedural rules, Article 35(1), established the evidentiary requirements for all claims:
Each claimant is responsible for submitting documents and other evidence which demonstrate satisfactorily that a particular claim or group of claims is eligible for compensation pursuant to Security Council resolution 687 (1991).
More specifically, government claims, including the environmental claims, had to be supported ‘by documentary and other appropriate evidence sufficient to demonstrate the circumstances and amount of the claimed loss’.103 The kind of evidence was further (p.346) elaborated in Governing Council decision 46, which asserted that ‘no loss shall be compensated by the Commission solely on the basis of an explanatory statement provided by the claimant’.104
Thus, although ‘there is evidence in the published literature that a large number of refugees passed through Turkey after having departed from Iraq or Kuwait between 2 August 1990 and September 1991’,105—which would provide a causal link between the presence of some refugees in Turkey and Iraq’s illegal acts—Turkey’s claims for damage to its forest resources from the impacts of refugees failed due to insufficient evidence. Specifically, the environmental panel explained that Turkey had not supplied ‘the dates on which the refugees arrived in Turkey, the duration of their stay or the details of the damage that they are alleged to have caused’.106 That is, Turkey failed to provide the critical information that would show that the refugees who caused the claimed damage were also those reported in the literature to have been fleeing the conflict. Additional examples of the kinds and amount of evidence relied on by the environmental panel are discussed below in the context of fact-finding and causation.
14.3.7 Fact finding
In determining the admissibility, relevance, materiality, and weight of the evidence submitted, the UNCC availed itself of expert consultants, site visits, its own legal and actuarial staff, responses to interrogatories sent to the claimants, submissions by Iraq, and submissions by the claimants.107 Mojtaba Kazazi, in his position as Secretary of the Governing Council, observed in 1999 that ‘the limited participation of the parties and particularly Iraq has resulted in the Commissioners and the Secretariat assuming an active investigative and fact-finding role in reviewing claims, with the assistance of outside expert consultants’.108 When the environmental programme began a couple of years later, although there was greater participation of Iraq, the UNCC fact-finding role remained dynamic.
Matheson points to the need for members of international civil tribunals to possess appropriate experience in fact-finding and—where necessary—expertise in battlefield conditions.109 The three commissioners for environmental claims—Thomas Mensah, Peter Sand, and José Allen—had between them a remarkable store of expertise in international law, fact finding, natural resource damages, international compensation for oil spill damage, and more. Understanding of battlefield conditions and military strategy would certainly be important for tribunals applying the law of armed conflict, where determinations of issues like military necessity are central to the decision-making process. That was not the case at the UNCC, which drew on state responsibility, jus ad bellum, and international environmental law.
Causation and damage were to be proved by the claimants.110 Security Council resolution 687 refers to Iraq’s liability for ‘direct’ losses, as does Governing Council decision 7: this was therefore the causation standard for compensable claims. It became a source of discussion. According to the legal representative for some of the claimants, the use of ‘direct’ was a well-meaning error of the Security Council, intending to restrict those with only a remote causal link to Iraq from the claimant pool.111 Heiskanen described the efforts of the Governing Council to provide clarity about what ‘direct’ meant through decisions defining specific loss types as direct or not; as he noted, ‘the traditional rules of the international law of claims are not particularly clear on the subject’.112
There has been debate over whether the UNCC truly hewed to a standard of ‘direct’ causation or whether, in practice, it used ‘proximate’ causation. Some consider direct causation to be a civil law standard, also common in international claims, which considers that a direct loss is one where no intervening event breaks the chain of causation.113 Proximate causation, on the other hand, is held to be a common law standard, which distinguishes proximately caused harms from those too remote to be compensable and—according to some—results in policy-based decisions.114 From this perspective, using a proximate causation test tends to erode claims that the UNCC was a judicial body and places the emphasis on the Governing Council’s role as political and as the determinant of the causation standard applied.115 Given the diversity of tests used by UNCC panels that Heiskanen subsequently describes, it does not appear that the Governing Council exercised much influence after all. Rather, it looks as though panels from mixed traditions worked through the problem as best they could.
A better analysis would not make a sharp distinction between direct and proximate causation.116 Marjorie M. Whiteman describes many international claims where the distinction was not made and others where both terms are used, in her comprehensive 1943 study of damages in international law.117 The Eritrea–Ethiopia Claims Commission considered a range of prior practice, including the UNCC, and settled on a ‘proximate cause’ test that considered whether the ‘particular damage reasonably should have been foreseeable to an actor committing the international delict in question’, while noting that the particular verbal formula used was likely to make little difference to outcomes.118
A. Complex causation
A common feature of environmental damage that can make it difficult to prove causation is that the damage often results from a chain of events flowing from an initial (p.348) wrongful act. Whiteman quotes Grotius as saying that ‘the one who is liable for an act is at the same time liable for the consequences resulting from the force of the act’ and clarifying his meaning with a story.119 Grotius’s illustration is apt; he related that the King of Cappadocia was held liable to pay damages for the chain of events unleashed by his action blocking a river, which burst its dam, which caused the Euphrates to flood, which caused great damage to Galatia and Phrygia.120
Whiteman’s invocation of Grotius is appealingly relevant to causal chains for the UNCC’s environmental damage claims, notably the claims for damage that resulted when people fled Iraq and Kuwait as refugees, bringing their livestock and living off the land as they passed, discussed below.
B. Intervening acts
In contrast, the environmental panel found that an intervening act did break the chain of causation in its review of Kuwait’s claim for expenses of remediation to be undertaken at sites where stored ordnance spontaneously detonated. Iraq argued that the damage was the result of negligent storage of ordnance at the sites. The panel concluded that, in the absence of evidence that appropriate management procedures were taken—and in one case, in light of evidence that they were not—mismanagement of the sites was the direct cause of damage and that broke the chain of causation, relieving Iraq of liability.121 The panel recommended no compensation for this claim. In a mundane example of injury to a crew member of a German oil spill response vessel, the panel found that the accident which caused the injury was not a direct result of Iraq’s invasion and occupation of Kuwait.122
C. Refugees as intervening actors
Claims by Iran, Jordan, and Turkey for losses from the impact of refugees on their environments also raised the issue of intervening acts that break the chain of causation.123 Iraq contended that decisions of the refugees themselves and of the Government of Jordan were intervening acts.124 Therefore, Iraq argued, the environmental damage caused by the transit of refugees through Jordan was not a direct result of the conflict and the UNCC should reject the Jordanian claims, which stemmed from the influx of refugees (a situation which is distressingly repeating itself due to the conflicts in Syria (p.349) and Iraq).125 Governing Council decision 7, defined ‘departure from or inability to leave Iraq or Kuwait (or a decision not to return) during that period’ as a direct loss.126 The F4 panel applied decision 7 to Jordan’s claimed environmental damage and decided that, in principle, refugee impacts could have been a direct result of Iraq’s invasion and occupation of Kuwait; on that basis, it made awards for monitoring and assessment of Jordan’s environmental damage.127
Later, in reviewing the substantive claims for environmental damage from refugees brought by Jordan, Iran, and Turkey, the panel said that
it was necessary to consider whether the presence of the refugees occurred during the period specified in paragraph 34(b) of Governing Council decision 7, and also whether the stay of any of the refugees beyond that period was due to factors unrelated to Iraq’s invasion and occupation of Kuwait, such as intervening acts, including decisions of the Claimants or other Governments.128
Applying this approach to Iran’s claims, the F4 panel found that there was ‘evidence that the presence of the refugees resulted in environmental damage to rangeland areas … that this damage is a direct result’ of the conflict, and on that basis it awarded compensation.129 However, Iran’s forest claims failed on the basis that Iran had failed to provide sufficient evidence that the refugees who allegedly caused damage to forests were the same as those who ‘departed from Iraq or Kuwait during the period 2 August 1990 to 2 March 1991 stipulated in paragraph 34 of Governing Council decision 7’: refugees had also entered Iran in 1991 as a result of the rebellion of Iraqi Kurds.130 With regard to Jordan’s claims that refugees damaged water, agricultural, wetlands, and marine resources, the panel found that the evidence submitted failed to demonstrate a causal link between the damage and the presence of refugees from the conflict.131
Mitigation is a potential problem for a strict interpretation of ‘direct’ causation as the act of mitigation clearly intervenes after the initial action triggering liability, but this is not a difficulty for a less dogmatic approach. In fact, the only way to reconcile an injured party’s legal obligation to mitigate damage, thereby reducing the harm, with direct causation is to recognize that mitigation is not an intervening act that breaks the causal chain.132 Accordingly, expenses of measures undertaken to prevent or abate harmful impacts of airborne contaminants on property or human health could qualify (p.350) as environmental damage, provided that the losses or expenses were a direct result of Iraq’s invasion and occupation of Kuwait.133
E. Parallel and concurrent causes
The UNCC had to carefully distinguish damage from oil spills caused by the conflict from those resulting from either natural oil seeps or other oil spills and extraction operations. As is often the case, baseline information demonstrating the environment’s pre-invasion condition was generally inadequate, a problem anticipated by the commissioners.134 The environmental panel said:
Iraq is, of course, not liable for damage that was unrelated to its invasion and occupation of Kuwait nor for losses or expenses that are not a direct result of the invasion and occupation. However, Iraq is not exonerated from liability for loss or damage that resulted directly from the invasion and occupation simply because other factors might have contributed to the loss or damage. Whether or not any environmental damage or loss for which compensation is claimed was a direct result of Iraq’s invasion and occupation of Kuwait will depend on the evidence presented in relation to each particular loss or damage.135
Where there was not sufficient evidence to distinguish the cause of oil damage, as was the case for damage to the marine environment in Iran that might have been caused by either the 1991 war or by the 1983 Nowruz oil well blowout and other oil spills and seeps, the F4 panel recommended no compensation be awarded; Iran’s proffer of evidence that included chemical and fingerprinting data was insufficient to distinguish oil spill damage attributable to Iraq from the other possible sources.136
However, multiple kinds of evidence showed that most of the very severe oil damage to the Saudi and Kuwaiti coastal areas was caused by the 1991 oil spills.137 Saudi Arabia demonstrated that there was oil from the conflict still present and continuing to cause harm. The panel concluded that ‘evidence available from a variety of sources supports the conclusion that the overwhelming majority of the oil currently present in the areas which Saudi Arabia proposes to remediate resulted from Iraq’s invasion and occupation of Kuwait’.138 The totality of the evidence that was available to the UNCC in relation to Saudi Arabia’s oil spill claims included daily oil spill reports,139 peer-reviewed scientific publications,140 field visits by independent experts contracted by the UNCC to assess sites where damage was claimed,141 and the results of (p.351) a shoreline survey conducted by Saudi Arabia that examined more than 19,500 sampling sites and chemical analysis (‘biomarker fingerprinting’) of over 3,000 sediment samples.142
Even though Saudi Arabia’s claimed oil spill damage was found attributable to Iraq, there were still further considerations. The F4 Panel recommended compensation for only the marginal cost of some activities, such as personnel expenses that would have been incurred regardless of Iraq’s actions.143 A claimant could overcome this presumption by showing that it incurred additional expenses. Thus, Saudi Arabia’s claim for the cost of personnel and equipment to assist in oil spill response was rejected because it failed to show that it had incurred any extraordinary cost beyond the normal.144 Similarly, the salaries of the German oil pollution control vessel were not compensated.145
Determining the causal link for the monitoring and assessment (‘M&A’) claims was problematic. Claimants, in general, had not pursued detailed, appropriate monitoring and assessment of the damage on their own initiative. Where they had done so as part of the UNEP-led assessment in 1991,146 the results were out of date because the UNCC had decided to leave review of these claims to the end of its work programme, almost ten years later. But the damage claims—for oil spills, oil well fires, and so on—could not be substantiated without data and analysis. The M&A claims sought funding for various investigations to be undertaken in the future in order to ascertain whether damage occurred; to quantify the loss; and to assess methodologies to abate or mitigate the damage.147 Without evidence that damage had occurred, how could the claimants prove their claims for costs of collecting the evidence? Faced with the reality that a large number of the environmental claims lacked the kind of evidence necessary for their assessment, the environmental panel decided that:
it would be both illogical and inequitable to reject a claim for reasonable monitoring and assessment on the sole ground that the claimant did not establish beforehand that environmental damage occurred. To reject a claim for that reason would, in effect, deprive the claimant of the opportunity to generate the very evidence that it needs to demonstrate the nature and extent of damage that may have occurred.148
The panel required sufficient evidence to demonstrate a ‘nexus between the activity and environmental damage or risk of damage that may be attributed directly to Iraq’s invasion and occupation of Kuwait’ using several factors, including evaluation of the plausibility that effects of the invasion could have affected a claimant’s territory, examination of the possible pathways and media by which pollutants could have reached the affected resources, evidence of actual damage, and whether there was a reasonable prospect that (p.352) the activity would produce results that could assist the panel in reviewing any related substantive claims.149
While some lawyers have been troubled by the UNCC’s willingness to award M&A funds in advance, the only alternative that would have been more fair to both parties would have been to use another source of funds for the natural resource damage assessment.150 Such a fund was not available (then or now), although it has been recommended.151
14.3.9 Remedy—funding compensation
The UNCC provided financial compensation administered through the Compensation Fund. Other remedies that post-conflict commissions offer include: determining disputed boundaries; making declaratory statements of the legality or illegality of actors and activities; requirements that parties provide assurances and guarantees of non-repetition; and reparation in the form of restitution, compensation, and satisfaction.152 Some of these were addressed in other ways, such as Security Council resolution 687’s declaration that Iraq’s acts were illegal and the separate process to delineate the Iraq–Kuwait border. David Caron has noted that ‘the determination of the merits of claims, regardless of eventual satisfaction, is itself a form of satisfaction’.153
The UNCC followed the classic approach described by the International Law Commission in its work on state responsibility. The Permanent Court of International Justice set the measure: ‘reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed’.154 Of course, international civil tribunals addressing damage from armed conflict may fail to satisfy full relief for many reasons—damage that is too profound to be restored, refusal of parties to comply, the limits of advisory jurisdiction, a lack of funds to pay compensation.155
(p.353) Environmental losses are challenging because, on the one hand, damage will rarely be fully reparable and, on the other hand, they require special techniques to monetize. The UNCC environmental claimants most frequently sought compensation for the cost of response, monitoring, assessment, remediation, and restoration activities. Where remediation or restoration were not possible—for example, an oiled shoreline ecosystem that was too fragile for active remediation—claimants used alternative approaches to render the value of lost ecosystem services in terms of financial compensation, further discussed below.
The UNCC has been called ‘unique’ because of the perception that Iraq’s oil wealth provided a source of funding for reparations that is unlikely to be repeated in most cases. However, in its first years Iraq’s government refused to cooperate and even the UNCC’s operating expenses were uncertain. Even after funding began to flow, it was not expected to be sufficient to pay all the claims and Governing Council decision 7 advised claimant governments that claims might be paid on a pro rata basis, with priority at the discretion of the Governing Council.156 Although nearly all UNCC claims—and all environmental claims—have now been fully paid, a pro rata approach might be a good strategy for future reparations programmes.
However, as the UNCC Governing Council contemplated the possibility that claims might not be fully paid, it recognized that the obligation to actually restore environmental damage with award funds posed a particular problem. While a commercial claimant might be asked to ‘take a haircut’ and accept only a percentage of its award as final payment, a percentage of an environmental award would not be sufficient to carry out the restoration project for which it was awarded. This would result in an impasse if the claimant were unable or unwilling to make up the difference. While the UNCC did not have to face this problem, in other circumstances a judicial body would face the difficult decision to award nothing if restoration could not be achieved with the funds available or to award a lesser amount and relax the stricture that environmental awards must be used for the benefit of the damaged environment. In the latter case, an alternative environmental project might be substituted or the claimant might be given full discretion to use the funds.
A final note on the source of the UNCC awards—they were funded from a percentage of Iraq’s oil revenues. Initially, 30 per cent of Iraq’s oil revenues went to the UNCC Compensation Fund, until this was reduced to 25 per cent through a political compromise, and eventually it was reduced to 5 per cent.157 In 2014, the Governing Council (p.354) decided to postpone Iraq’s obligation, in consideration of Iraq’s difficult financial situation and in 2015 it decided to continue the postponement, due to ‘extraordinarily difficult security circumstances in Iraq and the unusual budgetary challenges associated with confronting this issue’, noting Kuwait’s agreement to the arrangement.158 All of the claims were finally paid except for one, related to losses from Kuwait’s oil sector, which remains outstanding.
14.3.10 Compensable losses and damage
By specifying that environmental damage and the depletion of natural resources were compensable losses, Security Council resolution 687, paragraph 16, established a solid basis for a modern approach to reparations. Although this was the first time international claims included these heads of damage explicitly, there was certainly precedent in previous claims commissions,159 the International Maritime Organization’s Civil Liability Conventions,160 EU law,161 and US law.162 The International Law Commission describes compensation as a financial transfer that can ‘cover any financially assessable damage’.163 Although Iraq agreed that reasonable costs of remediation or restoration were compensable, it argued that the loss of resources that are not traded in the market is not ‘financially assessable’,164 and that there is no legal justification for compensating such losses. Iraq’s argument ignores the International Law Commission’s further explanation that ‘the qualification “financially assessable” is intended to exclude compensation for … the affront or injury caused by a violation of rights not associated with actual damage to property or persons’.165 That is, ‘financially assessable’ is not intended to exclude losses to non-market resources, which are ‘actual damage’. The environmental panel stated that ‘there is no justification for the (p.355) contention that general international law precludes compensation for pure environmental damage’.166
Governing Council decision 7, paragraph 35, detailed examples of the kinds of losses contemplated under resolution 687:
These payments are available with respect to direct environmental damage and the depletion of natural resources as a result of Iraq’s unlawful invasion and occupation of Kuwait. This will include losses or expenses resulting from:
(a) Abatement and prevention of environmental damage, including expenses directly relating to fighting oil fires and stemming the flow of oil in coastal and international waters;
(b) Reasonable measures already taken to clean and restore the environment or future measures which can be documented as reasonably necessary to clean and restore the environment;
(c) Reasonable monitoring and assessment of the environmental damage for the purposes of evaluating and abating the harm and restoring the environment;
(d) Reasonable monitoring of public health and performing medical screenings for the purposes of investigation and combating increased health risks as a result of the environmental damage; and
(e) Depletion of or damage to natural resources.
The environmental panel considered this an indicative, not exclusive, list of compensable losses. Damage to environmental resources not traded in the market, emergency assistance costs, and cultural heritage were all considered compensable losses, in principle. The panel observed that public health costs could be within the scope:
For example, expenses of measures undertaken to prevent or abate harmful impacts of airborne contaminants on property or human health could qualify as environmental damage, provided that the losses or expenses are a direct result of Iraq’s invasion and occupation of Kuwait.167
Public health monitoring costs related to risks from environmental damage were included explicitly in paragraph 35(d) of decision 7, but Iraq challenged substantive claims related to health impacts since they were not explicitly mentioned.168 The F4 panel reasoned that it would be illogical to allow monitoring and screening for damage to health from the conflict but to disallow claims for costs of treating the health risks that would be revealed by the tests.169 Substantive public health claims received awards for costs of treating injuries from mines and ordnance, post-traumatic stress disorder, and medical treatment and public health facilities for refugees.170
(p.356) Where countries outside the Persian Gulf region contributed funds or material aid as assistance to abate and prevent environmental damage, such costs were awarded compensation.171 For example, Germany received compensation for expenses related to sending oil pollution control equipment and personnel to assist with the response to the oil spills at the request of the governments of Bahrain and Qatar.172 Such costs fit squarely within Security Council resolution 687 and paragraph 35 of Governing Council decision 7. In analysing this question, the F4 panel also recollected that
specific appeals for assistance in dealing with the environmental damage caused by Iraq’s invasion and occupation of Kuwait were made by the United Nations General Assembly and by other organizations and bodies of the United Nations system as well as by the countries affected by environmental damage or threat of such damage resulting from Iraq’s invasion and occupation of Kuwait.173
In some cases, expenses of military equipment or personnel such as the cost of the German Ministry of Defence’s minesweepers were compensated. Although in apparent contradiction to Governing Council decision 19, which provided that ‘the costs of the Allied Coalition Forces, including those of military operations against Iraq, are not eligible for compensation’, the F4 panel considered compensation appropriate ‘if there is sufficient evidence to demonstrate that the predominant purpose of the activities was to respond to environmental damage or threat of damage to the environment or to public health in the interest of the general population’.174 In recommending an award, the F4 panel accepted the statement of the German government that ‘[s]ecure sea lanes in the gulf area are an indispensable prerequisite for starting the process of economic (p.357) recovery in the region’ and noted that the German minesweepers were deployed after the end of hostilities.175
Whether cultural heritage can be included within the scope of ‘environmental damage’ has been questioned in theoretical debates.176 The UNCC received a number of public cultural heritage claims which it allocated to the F4 category. This included claims for damage to artefacts, monuments, and structures that might be considered cultural landscape. For example, Iran claimed compensation for assessment of damage from oil fire emissions to ‘stone relics in Persepolis; tilework in Esfahan and Kermân; wall paintings in Eşfahan, Fârs, and Yazd; construction materials at the Tchoga Zanbil Ziggurat in Khûzestân; and construction materials, archaeological sites and artefacts in Susa’; it was awarded US$ 1.4 million.177 Syria claimed US$ 1.2 billion for the costs of restoring damage from the oil well fires to cultural sites including the World Heritage-listed Temple of Bel at Palmyra; an Umayyad limestone castle at Qasr Al-Hayr East; and other structures at Dura Europos and Resafe. These claims failed due to lack of evidence regarding the causal link to Iraq’s illegal acts.178
14.3.11 Valuation of damage
The environmental panel recognized that ‘there are inherent difficulties in attempting to place a monetary value on damaged natural resources, particularly resources that are not traded in the market’.179 But it observed that it was ‘entitled and required’ to determine appropriate compensation, while recognizing that putting a monetary value on non-market natural resources entails some uncertainties.180 The panel quoted the Trail Smelter case in support of its view that international law neither prescribes nor prohibits any particular valuation technique:
Where the [wrongful act] itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts. In such case, while the damages may not be determined by mere speculation or guess, it will be enough if the evidence show the extent of the damages as a matter of just and reasonable inference, although the result be only approximate.181
For many claims, the award was the estimated value of the cost of remediating and/or restoring the damaged resource. This is how Saudi Arabia’s award for oil spill damage to its Persian Gulf coast was calculated.182 The limitations of remediation as a (p.358) surrogate were evident in this case, as some of the damaged wetlands were too sensitive for highly intrusive restoration and best environmental practice counselled that those areas should be left to recover through slower natural processes.183
To address the loss of ecosystem services that would not be fully compensated by that award, Saudi Arabia proposed constructing ten marine and coastal preserves. The panel instead used a valuation technique called habitat equivalency analysis (‘HEA’), which uses a more complex analysis that sets the value of the loss as the cost of environmental projects designed to replace ecosystem services previously provided by irremediably damaged natural resources.184 It considered that two preserves would sufficiently compensate for damage that had not already been addressed in the remediation award and recommended an award of approximately US$ 46.1 million.185
Jordan used HEA to calculate that damage to rangeland and wildlife reserves from vehicular traffic, overgrazing by refugees’ livestock, and refugees’ use of plants for fuel would require compensation of US$ 2.4 billion.186 However, implementing the project as proposed would have required more land than was available in Jordan. The environmental panel accepted the HEA approach in principle, and, in consideration of the limited land available, awarded US$ 160.3 million. This amount reflected the costs of an alternative programme in which rangeland users and managers would cooperatively manage the resource.187 These and other examples of HEA demonstrate a valuation procedure for ecosystem services that can be relied on in future proceedings to protect and restore environmental resources that are not traded in the market.188
14.3.12 Nature of environmental loss and damage
Environmental claims were handled as public claims where the government stood in the role of a trustee189 with fiduciary responsible for ‘a community interest in full remediation of the damage’.190 This is a bold characterization of a programme that did not (p.359) explicitly endorse the public trust doctrine, however it fits well with the reality. The environmental panel described the environment as a common concern that ‘entails obligations towards the international community and future generations’.191 David Caron put the relationship in terms of a government acting ‘as an agent for the environment, for a community’s interest in that environment’.”192
14.3.13 Oversight: Tracking and follow-up programmes
Two oversight measures underscore this. International law traditionally considered that reparations resulting from a breach of an international obligation were owed to the injured state. The UNCC Governing Council instead required each successful claimant state to provide reports that the funds it received were transferred to the real claimant in interest.193 In the case of humanitarian claims, this was an individual.194 In the case of the environmental claims, it was the relevant national agency that would be implementing the projects. The M&A tracking programme and the substantive claim Follow-up Programme were created to ensure that award money would not be used for any purpose other than the projects for which they were awarded.195
The Governing Council put in place additional measures for the first instalment of ‘F4’ claims, ‘to ensure that funds are spent on conducting the environmental monitoring and assessment activities in a transparent and appropriate manner and that the funded projects remain reasonable monitoring and assessment activities’.196 Under this M&A tracking programme, claimant governments submitted regular progress reports on their implementation of the environmental studies, and at the end, audited financial statements.197 They were thus directed to use award funds only for the monitoring and assessment studies that they claimed were needed. As the environmental panel (p.360) concluded its work in 2005, it recommended the return of remaining award funds for four projects that were, in its judgment, no longer necessary.198
Under the Follow-up Programme, instituted in 2005 after all environmental claims had been reviewed, governments were to provide periodic financial and technical reports on their progress to the Governing Council to ensure that ‘funds awarded for certain environmental remediation and restoration projects are spent in a transparent and appropriate manner on implementing those projects’.199 The Follow-up Programme provided detailed guidelines for review of the very large remediation projects, a US$ 4.3 billion programme.200 Given that some of the projects were planned to continue for as long as twenty years into the future, it was not feasible for the Governing Council to maintain oversight, but it did not relinquish the principle that the environmental awards were intended to be used for specific environmental remediation projects. In 2011, the Governing Council outlined a set of structural systems and controls to be adopted by Iran, Kuwait, and Saudi Arabia, upon which the remaining award funds being held by the UNCC pending completion of the projects would be released to them.201 In 2013, the Governing Council declared that Iran had completed its environmental projects and that Jordan, Kuwait, and Saudi Arabia had satisfactorily put in place the necessary systems and controls; the final funds would be released; and the mandate of the programme had been fulfilled.202
14.4 UNCC Environmental Reparations and Jus Post Bellum
With the historical facts about the UNCC in mind, it becomes clearer how the programme fits into the larger context of the post-conflict legal regime, jus post bellum. The UNCC environmental reparations programme has been presented here as an institution that applied international law to reparations for environmental damage in the transition from armed conflict to peace after the 1990–1 Gulf War.203 First, this section describes some of the jus post bellum principles that have been advanced by various scholars. Then it discusses those principles in relation to the UNCC environmental programme and some steps towards reconciliation through environmental cooperation that followed. The questions to be answered are whether the UNCC fits the description of jus post bellum on its face; whether it serves the purposes of jus post bellum; and how the concepts of jus post bellum can be further enriched by this case study. We will see that the inherently transboundary nature of the environment does in fact, create unique opportunities for cooperation at the end of conflict.
Brian Orend pointed out that ‘as we can imagine a war justly begun being fought unjustly, so too we can imagine a war justly begun, and justly fought, but ending with a (p.361) set of unjust settlement terms’.204 Therefore, he proposed that we need to consider ‘the termination phase of the war, in terms of the cessation of hostilities and the move back from war to peace’ and to identify ‘a set of just war norms or rules for what we might call jus post bellum: justice after war’.205 This supposes a relatively narrow definition, which Orend helpfully illustrated with the example of the Bosnian war that dragged on ‘for want of a just and practicable peace settlement’.206 In contrast is Easterday, Iverson, and Stahn’s definition of jus post bellum as ‘the laws and norms of justice that apply to the process of ending war and building peace’.207 This approach includes a wider and more complex set of concepts that may make a crisp definition of jus post bellum impossible but that are capacious enough to encompass more issues of modern peacebuilding scholarship and practice.
Several concerns of jus post bellum scholars are not relevant to this case study, and can be set aside at the outset—regime change, occupation, conflict of law, and gender. The choice was made not to attempt regime change in Iraq and there was no territorial administration of Kuwait or Iraq by external forces.208 Questions about distinctions between and applicability of international humanitarian law, human rights law, and refugee law209 were not at issue because the UN Charter prohibition on the use of force between states plus the doctrine of state responsibility were identified as the bases for the UNCC in its constitution. Although women participated as diplomats, lawyers, and scientific experts in the claims process for the claimant, respondent, and the UNCC, the special concerns of women were not visible as articulated elements of the programme.210 They have been evoked more recently in both (p.362) scholarship211 and UN documents,212 and in the future gender could be considered in the formation and analysis of claims.213
The UNCC’s reparations programme was an example of jus post bellum in the most literal sense. As a legal proceeding that took place in the aftermath of armed conflict it actualized ‘law after war’.214 It was not—unlike some jus post bellum activities such as repatriation of soldiers—entirely located in the post-conflict legal context because it hearkened back to the illegality of Iraq’s actions in beginning the war and the activities that occurred during the conflict.215 This is, of course, true for any civil or criminal legal proceedings, which find the basis for claims in acts committed by beginning a war or in the manner of fighting it. The fact that this is always a feature of such proceedings would seem to conclusively answer the question of whether a sharp temporal distinction can be drawn to define jus post bellum.216
Larry May provided six principles of jus post bellum: retribution, rebuilding, restitution, reparations, proportionality, and reconciliation,217 which neatly capture the chief concerns of the field. As May pointed out, imposing retribution by bringing individuals to account is one of the most difficult principles to apply, and the UN Security Council eschewed that approach by forgoing criminal trials. Criminal punishment of those responsible for Iraq’s brutal pollution of the environment would have made a strong and highly visible statement of the importance of environmental integrity if the judges so interpreted the law; it would have done nothing to restore the damage.
Clearly, requiring Iraq to pay US$ 52.4 billion in compensation imposed accountability for its aggression while the compensation also contributed to rebuilding and provided restitution and reparations for the 1.5 million successful claimants, including the damaged environment. The UNCC’s unusual requirement that award funds must be used for environmental remediation and restoration, enforced by the Tracking (p.363) and Follow-up Programmes, emphasized the rebuilding and restitution elements for the environmental claims. May suggests that reparations and rebuilding may be owed also to the vanquished aggressor,218 which the UNCC did not address. The theory that underlies this view is that the people—in this case the people of Iraq—should not bear collective responsibility for the actions of their leaders. Under that view, the responsible leaders must be held accountable personally—retribution against the responsible individuals must be paired with even-handed reparations and rebuilding or there is effectively impunity for aggression. There is a special argument in support of the even-handed approach to reparations and rebuilding when it concerns damage to environmental integrity, something that is not just the property of one state, but that affects the common interests of neighbours and the international community.
May tempers his proportionality principle with a concept that he finds in Grotius’s writing: ‘meionexia’—asking for less than one’s due in order to achieve the goal of peace.219 There is no benchmark to measure this in the context of the UNCC environmental programme.220 Yet Iraq was asked to pay far less than the total cost of environmental damage that it caused. Some states that suffered environmental damage chose not to make claims at all. Those that did make claims sometimes under-claimed—and sometimes over-claimed. The UNCC awarded far less than it could have by applying a stringent evidentiary standard, and taking a conservative approach with regard to awards for interim damages and valuation of remediation techniques.221 Without explicit statements from the parties, we cannot know whether this was considered restraint or how it contributed to reconciliation.
It is submitted that the UNCC environmental programme also made a distinctive contribution to reconciliation. There was evidence of reconciliation between the primary antagonists, and perhaps this tells us that as a jus post bellum proceeding that prioritized environmental integrity, the UNCC was a success. After the last claims were done, all parties engaged in efforts to rebuild the regional environment. Relations between Iraq and Kuwait thawed to the point that in September 2005 Iraqi diplomats were invited to meet in Kuwait to arrange the environmental Follow-up Programme. The Regional Environmental Rehabilitation Advisory Group (‘RERAG’) was created by Iraq, Jordan, Kuwait, and Saudi Arabia (Iran was also invited to participate and became a RERAG member) at that meeting, facilitated by the UNCC, with the purpose (p.364) of increasing regional cooperation on environmental remediation and assisting Iraq with remediation of its own war damage.222 It is noteworthy that RERAG collaborative discussions on the environment continued even in 2009 when—in a separate track—Iraq and Kuwait were heatedly disputing the final payment of Kuwait’s oil production and sales loss claim, the last remaining unpaid award.223 Eventually, Kuwait provided US$ 10 million for Iraq to conduct monitoring and assessment of Iraq’s environmental war damage.224
The RERAG participants were interested in improving the shared regional environment, which they expressed in terms of practical concerns and environmental norms of sustainability and concern for future generations. A valuable resource—a databank of environmental information related to the claimant states—had been created by the United Nations Environment Programme (‘UNEP’) under a contract with the UNCC as a source of evidence in support of the F4 panel’s claims review. Providing access to this information and adding information from Iraq by developing a shared databank was one of the RERAG projects. Iraq’s representative at the first RERAG meeting noted that Iraq was pleased to participate because ‘the environmental damage is not limited to certain countries but affects the whole region, including Iraq’.225 Saudi Arabia’s representative said that ‘the environmental issues are the most important as they affect the public health of future generations and that remediation is necessary to achieve sustainable growth in the region’.226 Such sentiments were repeated throughout the meetings.
14.5 What Jus Post Bellum Adds to Environmental Integrity
The concept of jus post bellum did not create environmental reparations and it is not needed for programmes like the UNCC environmental claims to develop and expand in the future. What it can do is to provide an organizing category. By bringing legal disciplines together under the rubric of jus post bellum, it becomes possible to examine them more critically and constructively and perhaps to strengthen and improve them.227 Analysing the legal regimes for protection of the environment in relation to (p.365) armed conflict is a difficult task. The common goal is to protect, create, and restore environmental integrity, but the bodies of law do not work together smoothly. The administrative, regulatory approach that dominates peacetime environmental law seems to have little to do with either the minimalist rules of armed conflict or the emphasis on development in the peacebuilding phase.
The challenge is compounded by the lack of dialogue between experts in international humanitarian law and in environmental and natural resource protection law. By focusing attention on the transitions between them and linkages that connect them, the study of jus post bellum may advance effective use of law and norms from all the relevant disciplines. As modern governments pursue the demand for justice with legal instruments and practice, new norms take shape, including a norm of environmental integrity.228 Jutta Brunnée discusses ‘the role of distinctively legal materials’ in the process whereby ‘first, legal norms arise from social norms; second, when norm creation meets specific requirements of legality and, third, meets with norm application that also satisfies these legality requirements’, resulting in law that can be used to advance society’s purposes.229 Placing the UNCC environmental programme in this context, as a site of norm development and application, helps us to understand environmental integrity as part of the larger tapestry of jus post bellum. International society’s awakening to our need for a healthy, resilient, and complete environment is evident. When environmental integrity takes its place as a norm of jus post bellum, it becomes available to enrich the work of practitioners and scholars in that larger field. As they become familiar, environmental norms and practices will be better integrated into peacebuilding, the law of armed conflict, and the norms of just war.
The UNCC environmental programme, viewed as an innovative approach to justice after war, highlights the contribution that the environmental integrity norm can make. This case study describes what happened. Perhaps parts of the programme can be reproduced in other contexts; perhaps this was indeed a unique confluence of circumstances and people. However, certain elements stand out. The agreement of parties—Iraq, Kuwait, Iran, Jordan, and Saudi Arabia—to establish the Follow-up Programme and the RERAG illustrates the former antagonists’ willingness to cooperate for the improvement of regional environmental conditions. The UNCC’s role as a trusted, neutral administrator for the Follow-up Programme and convenor for RERAG was surely built on the manner in which the F4 panel, the Secretariat, and the Governing Council conducted the environmental claims review. That in turn included the adjustments to the UNCC procedures that were agreed by all the participants to be desirable to accommodate the special demands of the environmental programme.
(p.366) Compensation programmes, like all international civil tribunals, are inherently reactive. This limits their direct influence.230 On the other hand, commissions like the UNCC can influence norms, they can offer procedural innovations, and they can reflect new developments in the law. If we look to the UNCC’s environmental reports for progressive development of international environmental law, we find that they are generally restrained in their discussions of international law principles. And yet, they demonstrate principles of precaution, common concern, obligations to future generations, environmental integrity, polluter pays, and the general obligation of states to prevent transboundary environmental damage and damage to the environment beyond national jurisdiction.231
In making awards for environmental monitoring and assessment costs, the UNCC acknowledged the precautionary need to identify potential risks in order to plan future action, especially for the protection of human health, and to obtain information that could inform the substantive claim review. Peter Sand observed that the reference to public health monitoring in Governing Council decision 7, paragraph 35(d), ‘is probably the closest the UNCC ever came to endorsing the “precautionary approach” in international environmental law’.232
The environmental panel characterized the duty of injured states to mitigate environmental damage as ‘a necessary consequence of the common concern for the protection and conservation of the environment, and entails obligations towards the international community and future generations’.233 This is a fair statement of the overarching obligation on all parties that the UNCC environmental claims programme represented.
Finally, a great contribution of the UNCC environmental programme, and its successors, will be the spotlight they shine on the often ignored devastation to the natural environment caused by armed conflict and its potential to lead us towards prevention of harm. It is easy to see, for example in Jordan where new camps for Syrian war refugees are again causing damage to the Badia, that waiting until conflict ends to provide protection for the environment is a fool’s game.
(*) Associate Professor at Rutgers University, New Jersey.
(1) Richard J. Grunawaltet al. (eds.), Protection of the Environment during Armed Conflict (Newport RI: International Law Studies, Naval War College, 1996), 515 (Theodor Meron comments). The UNCC stands out from other historical and modern claims commissions as the first whose mandate recognized the importance of protection of the environment to peacebuilding. UNEP, From Conflict to Peacebuilding: The Role of Natural Resources and the Environment (UNEP, 2009) 6, at <http://postconflict.unep.ch/publications/pcdmb_policy_01.pdf> accessed 7 June 2017. UNEP has recommended establishing a permanent UNCC-like body to monitor violations and address compensation for environmental damage. The Toxic Remnants of War project has called for a permanent review body on conflict and the environment, albeit one that would emphasize post-conflict assistance and assessment of the impacts of particular military practices. Manfred Mohr and Alexander Stöcker, ‘Workshop Report: Exploring a legal framework for Toxic Remnants of War’ (2012), at <http://www.toxicremnantsofwar.info/wp-content/uploads/2012/09/TRW-Legal-WS-Report_final.pdf> accessed 7 June 2017.
(2) See also, UNEP comment on the Sustainable Development Goals, Goal 16: Promote peaceful and inclusive societies, A/RES/70/1, that ‘A better understanding of the links between environment and human security is vital for effective conflict prevention, post-conflict reconstruction and promotion of peaceful and inclusive societies.’ UN Environment Assembly of the UNEP, Delivering on the Environmental Dimension of the 2030 Agenda for Sustainable Development—a concept note, UNEP/EA.1/INF/18 (2016), para. 87.
(3) Agreement, Eritrea–Ethiopia, 12 December 2000, 2138 UNTS 94, 40 ILM 260. Ethiopia claimed compensation for losses of gum Arabic and resin plants, and damage to terraces in the Tigray region for a value of approximately US$ 1 billion and for loss of wildlife. It failed to provide evidence of harm beyond the claim forms, with no details and no supporting evidence, and the Commission rejected the claims on that basis; the wildlife claim was withdrawn. See Sean D. Murphy, Won Kidane, and Thomas R. Snider, Litigating War: Arbitration of Civil Injury by the Eritrea-Ethiopia Claims Commission (New York: Oxford University Press New York, 2013), 146.
(4) UN Register of Damage, Rules and Regulations Governing the Registration of Claims, Article 11(1) (19 June 2009).
(5) A/65/278, UN General Assembly, Report of the Secretary-General: Oil Slick on Lebanese Shores, A/62/343, 17 September 2007; Report of the Secretary-General: Oil Slick on Lebanese Shores, A/63/225, 8 June 2008. At its second session, the UNEP Environment Assembly adopted the resolution: Protection of the Environment in Areas Affected by Armed Conflict, UN doc. UNEP/EA.2/L.16, May 2016, co-sponsored by Ukraine, Jordan, the Democratic Republic of Congo, Iraq, South Sudan, Norway and Lebanon, Canada, and the EU.
(6) A/65/278, para. 7. This was not a suggestion that could be effectuated, given the UNCC’s limited mandate and the fact that its claims review functions were fully terminated at the time this proposal was made. The resolution also noted that all of the relevant conventions in force between the parties were inapplicable ‘during armed hostilities’. ibid. para. 7.
(7) Security Council Resolution 660, UN Doc. S/RES/660, 8 February 1990. See also Security Council Resolution 661, S/RES/661, 6 August 1990 (sanctions).
(8) Security Council Resolution 674, S/RES/674, 29 October 1990 (Iraq’s liability for any loss, damage or injury).
(9) Andrew Rosenthal, ‘War in the Gulf: The Overview—U.S. and Allies Open Air War on Iraq’ N.Y. Times, New York ed., A1 (17 January 1991) (‘Rosenthal’); Alberto Bin, Richard Hill, and Archer Jones, Desert Storm: A Forgotten War (Westport CT: Praeger, 1998).
(10) Security Council Resolution 686, 2 March 1991; UN Security Council Resolution 687 (3 April 1991), ILM 30 (1991) 846; UN Doc. S/22559 (1991); Letter dated 10 April 1991 from the Permanent Representative of Iraq to the United Nations addressed to the President of the Security Council, UN Doc. S/22480, 11 April 1991) (‘The National Assembly has decided at its session held on 6 April 1991 to agree to United Nations Security Council resolution 687 (1991)’); Identical Letters dated 6 April 1991 from the Permanent Representative of Iraq to the United Nations Addressed Respectively to the Secretary-General and the President of the Security Council, S/22456, 6 April 1991.
(11) Richard Schofield,‘The United Nations’ Settlement of the Iraq-Kuwait Border, 1991–1993’ (1993) IBRU Boundary and Security Bulletin.
(12) UNCC, Press Release, PR/2015/1, 8 June 2015.
(13) UNCC, Press Release, PR/2015/4, 28 October 2015 (referring to US$ 4.6 billion outstanding compensation owed to Kuwait); UNCC website, Summary of Awards and Current Status of Payments, at <http://www.uncc.ch/summary-awards-and-current-status-payments> accessed 7 March 2016 (referring to US$ 4,629,324,488 in outstanding award amounts and US$ 47,704,258,660 compensation paid). The Governing Council, with decision 274, S/AC.26/Dec.274 (3 November 2016), continued to postpone Iraq’s obligation to deposit 5 per cent of the proceeds of export sales of Iraqi petroleum and petroleum products in the Compensation Fund until 1 January 2018; as a result, no compensation has been paid since 2014. UNCC, Press Release, PR/2017/2, 24 April 2017.
(14) UNCC, Report and Recommendations made by the Panel of Commissioners Concerning the Fifth Instalment of ‘F4’ Claims, UN Doc. S/AC.26/2005/10, 30 June 2005 (‘Fifth ‘F4’ Report’) Table 26, para. 784.
(15) Consent Decree Among Defendant BP Exploration & Production Inc. (‘BPXP’), The United States of America, and the States of Alabama, Florida, Louisiana, Mississippi, and Texas, MDL No. 2179 (US District Court for the Eastern District of Louisiana, 2015), at <https://www.justice.gov/enrd/file/838066/download> accessed 7 June 2017.
(16) Report and Recommendations made by the Panel of Commissioners Concerning the Third Instalment of ‘F4’ Claims (‘Third ‘F4’ Report’), paras. 170–8; 43 ILM 704 (2004); Adriana C. Bejarano and Jacqueline Michel, ‘Large-Scale Risk Assessment of Polycyclic Aromatic Hydrocarbons in Shoreline Sediments from Saudi Arabia: Environmental Legacy After Twelve Years of the Gulf War Oil Spill’ (2010) 158 Environmental Pollution 1561–9, 1561.
(17) Third ‘F4’ Report (n 16) paras. 61, 86–99, 106–11, 121–5, 134–8. Regarding the attribution of damage to oil wells, Kuwait claimed that ‘out of a total of 914 operational wells in Kuwait, 798 wellheads had been detonated by the Iraqi forces, of which 603 were on fire, 45 were gushing oil but not on fire, and 150 although damaged were neither on fire nor gushing oil’. Iraq denied any responsibility; it submitted evidence that, inter alia, stated ‘KOC executives were quoted as saying that allied bombing had set fire to as many as 34 wells’. However, the same source also stated ‘but the vast majority had been blown up by occupying Iraqi forces’. Based on the evidence submitted by Kuwait and Iraq, the panel found that the majority of the damage was directly caused by Iraq, and that the relatively small amount that may have been caused by Allied bombing was also attributable to Iraq under Governing Council decision 7. Report and Recommendations made by the Panel of Commissioners Appointed to Review the Well Blowout Control Claim (the ‘WBC Claim’), S/AC.26/1996/5/Annex, 18 December 1996, paras. 36–86.
(19) Report and Recommendations made by the Panel of Commissioners Concerning Part One of the Fourth Instalment of ‘F4’ Claims, UN Doc. S/AC.26/2004/16, 9 December 2004(‘Part One Fourth ‘F4’ Report’), paras. 68, 70–1, 105–8.
(20) UNCC, Report and Recommendations made by the Panel of Commissioners Concerning the Second Instalment of ‘F4’ Claims, UN Doc. S/AC.26/2002/26, 3 October 2002 (‘Second ‘F4’ Report’), para. 85.
(21) Marc Weller, ‘The United Nations and the Jus ad Bellum’ in Peter Rowe (ed.), The Gulf War 1990–91 in International and National Law (New York: Routledge, 1993), 29 (mentioning China and Yemen in this connection); Weller’s chapter provides remarkable details, such as the statement of Iraq at the UN, claiming that it was merely supporting a popular overthrow of the government by the Free Provisional Government of Kuwait, and a close analysis of activities at the UN.
(22) David Bederman, ‘Historic Analogues of the UNCC’ in Richard Lillich (ed.), The United Nations Compensation Commission: Thirteenth Sokol Colloquium (Irvington NY: Transnational Publishers, 1995); Margery M. Whiteman, Damages in International Law (Washington DC: US Govt. Printing Office, 1937). The new twist here is, as Jens Iverson observes, the inclusion of environmental law, ‘particularly with respect to the rights and obligations relating to repairing and rebuilding the environmental damage from the conflict’—Iverson’s second branch, ‘resource disputes related to the conflict’, was addressed through the boundary commission mentioned above. See also Jens Iverson, ‘The Foundations of Transitional Justice and Jus Post Bellum’ in Carsten Stahn, Jennifer S. Easterday, and Jens Iverson (eds.), Jus Post Bellum: Mapping the Normative Foundations (London: Oxford University Press, 2014), 93–4.
(23) Michael J. Matheson, International Civil Tribunals and Armed Conflict (Leiden: Martinus Nijhoff, 2012).
(24) ILC Report of the International Law Commission on the Work of its fifty-third session UN Doc. A/56/10, 10 January 2001, A/56/10/Corr.1, Yearbook of the International Law Commission, 2001, Vol. II, Part Two, as corrected (Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries). Indeed, ‘[t]he mixed commission, to many international lawyers, is synonymous with the origins of their discipline’ and such tribunals ‘were significant in the development of the rules of state responsibility’. Murphy, Kidane, and Snider (n 3) xv.
(27) See Cymie R. Payne, ‘Guidance for Researchers’ in Cymie R. Payne and Peter H. Sand (eds.), Gulf War Reparations and the UN Compensation Commission: Environmental Liability (New York: Oxford University Press, 2011).
(28) Bederman (n 22); David Caron, ‘The Profound Significance of the UNCC for the Environment’ in Payne and Sand (n 27) 267–72 (explaining that some aspects of environmental claims are profoundly different from property claims, and that ‘a claims process addressing the environment inevitably seeks representation of a community’s interest in the environment’.); Stacie I. Strong, Class, Mass, and Collective Arbitration in National and International Law (New York: Oxford University Press, 2013); Cymie R. Payne, ‘Argentina’s ICSID Arbitrations and the UNCC Experience: Consistency and Capability in Mass Claims’ (2012) 6 World Arbitration and Mediation Review 427–62.
(29) Twelve 1990 resolutions related to Iraq’s invasion of Kuwait including: resolution 660 (2 August 1990) (condemning the invasion demanding Iraq’s immediate withdrawal); resolution 661 (6 August 1990) (imposing an arms embargo and economic sanctions; establishing a Sanctions Committee); resolution 674 (29 October 1990) (stating Iraq’s legal responsibility for damage and loss to Kuwait and other states); and resolution 678 (29 November 1990) (setting 15 January 1991 as deadline for Iraq to withdraw and authorizing Kuwait and cooperating states to use ‘all necessary means’ if Iraq did not). UN Security Council Resolution 686 (1991), inter alia, called on Iraq to accept its liability for loss and damage; Iraq agreed, UN Doc. S/22320, 3 March 1991.
(30) Although some have disputed the Security Council’s authority to establish a subsidiary organ with judicial functions, see Bernhard Graefrath, ‘Iraqi Reparations and the Security Council’ (1995) 55 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (Heidelberg Journal of International Law 1–68), the general view, evidenced in participation by nearly 100 nations in the UNCC as claimants, agrees with Veijo Heiskanen that ‘there is ample precedent and legal authority for the view that, subject to certain conditions, the Council does have the authority to establish a subsidiary organ invested with such judicial powers’. Veijo Heiskanen, ‘The United Nations Compensation Commission’ (2002) 296 Recueil des Cours: Collected Courses of The Hague Academy of International Law 259–397, 308–9. Jeremy P. Carver argues that Iraq’s letter accepting the terms of ceasefire conferred jurisdiction on the UNCC in ‘Dispute Resolution or Administrative Tribunal: A Question of Due Process’ in Richard. Lillich (ed.), The United Nations Compensation Commission: Thirteenth Sokol Colloquium (Irvington NY: Transnational Publishers, 1995), 70, referring to Letter dated 10 April 1991 from the Permanent Representative of Iraq to the United Nations addressed to the President of the Security Council, S/22480, 11 April 1991.
(32) The Compensation Fund was thus created by para. 18 of Security Council Resolution 687 (1991) and established by para. 3 of Security Council Resolution 692 (1991) in accordance with section I of the Secretary-General’s Report, S/22559, 2 May 1991.
(33) See chapter 15 in this volume.
(34) Hans-Peter Gasser, ‘Comment’ in Grunawalt et al. (n 1) 513–14. Brian Orend criticized the decision not to hold jus in bello war crimes tribunals for both sides in respect for the principle of even-handed accountability. Brian Orend, ‘Jus Post Bellum’ (2000) 1(1) Journal of Social Philosophy 117, 127–8, 132.
(35) Michael Bothe, ‘Criminal Responsibility for Environmental Damage in Times of Armed Conflict’ in Grunawalt et al. (n 1) 473–78; Paul M. Barrett, ‘U.S. Backs off Iraqi War Crimes Trials Due to Logistic, Political Considerations ’ (25 March 1991) Wall Street Journal, 13–14.
(38) Charles Krauthammer, ‘… And Stumbles’ The Washington Post A25 (5 October 1990) (‘the whole premise of American policy has been that aggression cannot get any reward—hence Thatcher’s insistence on reparations and war crimes trials—or it will be repeated’); John Norton Moore and Robert Turner, ‘Saddam, War Crimes and the Rule of Law’ Jerusalem Post (Israel) (21 January 1991); Barrett (n 35).
(39) The Rome Statute, Art. 8(b)(iv), defines an attack that is intentionally launched, knowing that it 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’ as a war crime within the jurisdiction of the International Criminal Court. Not long after, the International Criminal Tribunal for the Former Yugoslavia was established in this context: a felt need to establish accountability where there was no pre-existing forum or international criminal code. Daphna Shraga and Ralph Zacklin, ‘International Criminal Tribunal for the Former Yugoslavia’ (1994) 5 European Journal of International Law 360, 361.
(40) UNEP (n 1) 8; see also, José R. Allen, ‘Points of Law’ in Payne and Sand (n 27) 156; Thilo Marauhn, ‘Environmental Damage in Times of Armed Conflict—not ‘Really’ a Matter of Criminal Responsibility?’ (2000) International Review of the Red Cross 840, 1029–36 (criticizing the report for creating further ambiguity). The Committee advising the International Criminal Tribunal for the Former Yugoslavia Prosecutor decided that ‘the environmental damage caused during the NATO bombing campaign does not reach the Additional Protocol I threshold’. Committee Established to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia, Final Report to the Prosecutor (applying law of armed conflict principles of necessity and proportionality) paras. 14–25.
(42) ibid. 250–1, 254.
(43) Hampson argues that these are, in fact, more effective remedies than compensation. ibid. 258–9.
(44) See chapters 6 and 10 in this volume.
(45) See, for example, Erik V. Koppe, The Use of Nuclear Weapons and the Protection of the Environment during International Armed Conflict (Groningen: Rijksuniveriteit, 2006).
(46) Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949.
(47) Committee Established to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia, Final Report to the Prosecutor, paras. 14–25 (applying law of armed conflict principles of necessity and proportionality) at <http://www.icty.org/x/file/About/OTP/otp_report_nato_bombing_en.pdf> para. 15, accessed 7 June 2017.
(48) Richard Falk, ‘The Environmental Law of War: An Introduction’ in Glen Plant (ed.), Environmental Protection and the Law of War: A ‘Fifth Geneva’ Convention on the Protection of the Environment in Time of Armed Conflict (London: Belhaven Press, 1992), 93–4.
(49) See chapter 9 in this volume.
(50) See chapter 2 in this volume.
(51) UN Security Council Resolution 692, S/RES/692 (1991) at para. 3.
(52) UNCC Governing Council decision 10, S/AC.26/1992/10, Art. 6 (1992).
(53) UN Security Council Resolution 687, S/RES/687 (1991).
(57) UNCC Governing Council decision 19, S/AC.26/Dec.19 (1994).
(58) Second ‘F4’ Report (n 20) para. 29. Examples of category F4 claims that were rejected under decision 19 include: a claim of the Netherlands for the cost of tugboats to provide emergency firefighting, towing, rescue, and salvage services, UNCC (n 57) para. 274; and US claims for studies of the health risks to military personnel from oil well fires and hazardous materials, UNCC (n 57) para. 291, 335. The panel determined that decision 19 was intended to exclude ‘economic costs incurred by the Allied Coalition in undertaking or supporting military operations against Iraq’; accordingly it found that the expenses for remediation of damage resulting from military encampments, fortifications and roads constructed by Allied Coalition Forces in Saudi Arabia would be compensable. Part One Fourth ‘F4’ Report (n 19) paras. 247–91.
(60) UNCC Governing Council decision 1 (n 54) (‘Claims will not be considered on behalf of Iraqi nationals who do not have bona fide nationality of any other State.’); Governing Council decision 10 (n 52) Art. 5; UNCC, Report and Recommendations made by the Panel of Commissioners Concerning the Sixth Instalment of Claims for Departure from Iraq or Kuwait (Category ‘A’ Claims), S/AC. 26/1996/3, paras. 27–31 (1996) (interpreting ‘bona fide’).
(63) ibid. para. 70.
(64) ibid. paras. 70–1.
(65) Peter H. Sand, ‘Environmental Principles Applied’ in Payne and Sand (n 27) 174; David D. Caron, ‘The Place of the Environment in International Tribunals’ in Jay E. Austin and Carl E. Bruch (eds.), The Environmental Consequences of War: Legal, Economic, and Scientific Perspectives (New York: Cambridge University Press, 2000), 250, 257; Edith Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity (Tokyo: UN University Press, 1989); Catherine Redgwell, Intergenerational Trusts and Environmental Protection (Manchester: Manchester University Press, 1999); Mary Turnipseed, Raphael Sagarin, Peter Barnes, Michael C. Blumm, Patrick Parenteau, and Peter H. Sand, ‘Reinvigorating the Public Trust Doctrine: Expert Opinion on the Potential of a Public Trust Mandate in U.S. and International Environmental Law’ (2010) 52(5) Environment 6.
(66) See notes 2 and 3 above.
(67) Report and Recommendations made by the Panel of Commissioners Concerning the First Instalment of ‘F4’ Claims, UN Doc. S/AC.26/2001/16, 22 June 2001, (‘First ‘F4’ Report’), paras. 292, 304 (‘For the purposes of its monitoring and assessment claims, Jordan defines “refugees” as “all those people, of whatever nationality, who entered Jordan from Iraq and Kuwait as a direct result of Iraq’s invasion and occupation of Kuwait, between 2 August 1990 and 1 September 1991”, having left Iraq or Kuwait on or before 2 March 1991. Jordan defines “involuntary immigrants” as people who were “refugees” initially, but who were still resident in Jordan after 1 September 1991.’).
(69) ibid. paras. 53–4; Report and Recommendations made by the Panel of Commissioners Concerning the Second Instalment of ‘E2’ Claims, S/AC.26/1999/6, 19 March 1999, para. 54; Report and Recommendations made by the Panel of Commissioners Concerning the Fifth Instalment of ‘F1’ Claims, S/AC.26/2001/15, 22 June 2001, para. 18; Report and recommendations made by the Panel of Commissioners concerning the first instalment of “F1” claims, S/AC.26/1999/23 (1999) para. 22.
(71) Philippe Sands, Pierre Klein, and Derek W. Bowett, Bowett’s Law of International Institutions (London: Sweet & Maxwell, 6th edn, 2009).
(72) On the question of the Security Council’s authority to make a legal determination of Iraq’s liability and to establish the UNCC, see Veijo Heiskanen and Nicolas Leroux, ‘Applicable Law’ in Christopher S. Gibson, Timothy John Feighery, Trevor M. Rajah, War Reparations and the UN Compensation Commission: Designing Compensation After Conflict (Oxford University Press, 2015). The issue was rendered moot by the following statement communicated to the UN Security Council President by the Iraqi government: ‘The National Assembly has decided at its session held on 6 April 1991 to agree to United Nations Security Council resolution 687 (1991).’ UN Security Council, Letter dated 10 April 1991 from the Permanent Representative of Iraq to the United Nations Addressed to the President of the Security Council, S/22480 (1991).
(73) Domestic environmental law was not used either as a rule of decision for the UNCC proceedings or, to my knowledge, as an alternative forum for environmental claims. A UNDP report on the 2006 oil spill resulting from the conflict between Lebanon and Israel presents both Lebanese law and international law (including the UNCC) as avenues for claims. [No author given], Report for UNDP–Lebanon on the measurement and quantification of the environmental damage of the oil spill on Lebanon (2014), at <http://www.undp.org/content/dam/lebanon/docs/Energy%20and%20Environment/Projects/222.pdf > accessed 7 June 2017.
(75) Report of the Secretary-General pursuant to paragraph 19 of Security Council Resolution 687(1991), S/22559, 2 May 1991, para. 20.
(76) For varied perspectives, compare Michael E. Schneider, ‘How Fair and Efficient is the United Nations Compensation Commission System?’ (1998) 15 Journal of International Arbitration 15–26; John Crook, ‘The UNCC and Its Critics’ in Richard Lillich (ed.), The United Nations Compensation Commission: Thirteenth Sokol Colloquium (Irvington NY: Transnational Publishers, 1995); Julia Klee, ‘The Process’ in Payne and Sand (n 27); David D. Caron and Brian Morris, ‘The UN Compensation Commission: Practical Justice, Not Retribution’ (2002) 13 European Journal of International Law 183; John P. Gaffney, ‘Due Process in the United Nations Compensation Commission’ (2000) 15 Mealey’s International Arbritration Report 13; Elyse J. Garmise, ‘The Iraqi Claims Process and the Ghost of Versailles’ (1992) 67 NYU Law Review 840; Lalanath de Silva, ‘Reflections on the United Nations Compensation Commission Experience’ and Cymie R. Payne, ‘Legal Liability for Environmental Damage: The United Nations Compensation Commission and the 1990–1991 Gulf War,’ both in Carl Bruch, W. Carroll Muffett, and Sandra S. Nichols (eds.), Governance, Natural Resources, and Post-Conflict Peacebuilding (London: Earthscan, 2016).
(77) Allen (n 40) 148–9. Heiskanen (n 30) 313–14, reviews arguments that the appointment and award approval functions of the Executive Secretary and Governing Council, respectively, negate the supposed independence of commissioners.
(79) ibid. Art. 28.
(82) Panels for most other claims categories reviewed considerably less information.
(84) Michael F. Raboin, ‘The Provisional Rules for Claims Procedure of the United Nations Compensation Commission: A Practical Approach to Claims Processing’ in Lillich (n 76) 70. See also Hazel Fox, ‘Reparations and State Responsibility’ in Rowe (n 21) 46. Requests from panels for additional review time had to be made formally to the Governing Council which had the option of discharging a panel and transferring the claims to another panel. Governing Council decision 10 (n 52) Arts. 38, 39.
(86) See, for example, Report and Recommendations made by the Panel of Commissioners Concerning the Fourth Instalment of ‘E1’ Claims, UN Doc. S/AC.26/2000/16, 29 September 2000, para. 21: ‘The Panel notes with some disappointment, however, that Iraq chose not to address the Panel on the issues presented by the claims, as specifically requested by the Panel, but rather chose to address its comments solely to matters over which the Panel has no control and not to address the substance of the claims. The Panel, therefore, terminated the oral proceedings following Iraq’s presentation.’
(87) Michael Schneider, ‘How Fair and Efficient is the United Nations Compensation Commission?’ (1998) 15 Journal of International Arbitration 15; Larraine Wilde, ‘Scientific and Technical Advice: The Perspective of Iraq’s Experts’ in Payne and Sand (n 27).
(88) Paul Lewis, ‘Immovable Object; Granite Regime of Saddam Hussein Seems Little Worn by Political Storm’ New York Times (31 July 1992).
(90) UNCC, Governing Council decision 114, S/AC.26/Dec.114, 7 December 2000.
(91) ibid. para. 13.
(93) The time from submission of the instalment by the team to the panel to the approval of the report and recommendations by the Governing Council was as follows: F4(1) one year, four months months (February 2000–June 2001); F4(2) one year, seven months (March 2001–October 2002); F4(3) one year, nine months (March 2002–December 2003); F4(4) one year, nine months (March 2003–December 2004); F4(5): one year, seven months (November 2003–June 2005).
(94) Governing Council decision 124, S/AC.26/2001/124 (2001), para. 2.
(95) Governing Council decision 226, S/AC.26/2004/226 (2004), para. 2.
(99) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, done at Aarhus, Denmark, on 25 June 1998, entry into force on 30 October 2001.
(101) Huguenin, et al. (n 100) 92. It should be noted that, partly due to considerations of litigation by the government against responsible parties, the full administrative record may not be published for many years, although some information is made available immediately. For example, the Final Programmatic Damage Assessment and Restoration Plan for the Gulf of Mexico, assessing impacts of the 2010 Deepwater Horizon oil spill on natural resources in the Gulf of Mexico, on the services those resources provide, and determining the restoration needed to compensate the public for those impacts was not published until February 2016, 81 FR 8483 (2016), at <https://federalregister.gov/a/2016-03299>; see also <http://www.gulfspillrestoration.noaa.gov/restoration-planning/gulf-plan/> accessed 7 June 2017.
(102) Concern about the lack of publication of the expert reports has also been expressed by commentators. Jean-Christophe Martin, La pratique de la Commission d’Indemnisation des Nations Unies pour l’Irak en matiere de reclamations environnementales, in Le droit international face aux enjeux environnementaux (Paris: Editions A. Pedone, 2010) 268. The UN Request for Expression of Interest, briefly laying out the requirements for consulting services, is provided in Payne and Sand (n 27), 359.
(104) See generally, Mojtaba Kazazi, ‘An Overview of Evidence before the United Nations Compensation Commission’ (1999) 1 International Law Forum 219, 223.
(107) Klee (n 76); Huguenin, Donlan, van Geel, and Paterson, ‘Assessment and Valuation of Damage to the Environment’ (n 100); Wilde, ‘Scientific and Technical Advice: The Perspective of Iraq’s Experts’ (n 87).
(116) This appears to be the approach advised by Hazel Fox, ‘Reparations and State Responsibility’ in Rowe (n 21) (‘Sometimes both the civil law criterion of causality as well as the common law test of predictability have been employed … In the present circumstances these criteria provide some help in identifying heads of war damage which are too remote or indirect to be recoverable.’).
(118) Eritrea–Ethiopia Claims Commission, Decision 7, paras. 7–14 (27 July 2007).
(122) ibid. para. 245.
(123) The panel found that ‘the evidence provided by Turkey is not sufficient to enable the Panel to determine whether the damage alleged to have resulted from the presence of refugees in Turkey is eligible for compensation. In particular, no information is provided by Turkey regarding the dates on which the refugees arrived in Turkey, the duration of their stay or the details of the damage that they are alleged to have caused. and accordingly received no compensation.’ Part One Fourth ‘F4’ Report (n 19) paras. 350–6.
(125) 1.4 million Syrian refugees were estimated to be in Jordan in 2015. 3RP Regional Refugee & Resilience Plan 2016–2017, 8, at <http://www.3rpsyriacrisis.org/wp-content/uploads/2015/12/3RP-Regional-Overview-2016-2017.pdf> accessed 7 June 2017.
(129) ibid. para. 71.
(130) ibid. para. 80. Peter W. Galbraith, ‘Refugees from War in Iraq’ Policy Brief No. 2 (Migration Policy Institute, 2003), at <http://www.migrationpolicy.org/sites/default/files/publications/MPIPolicyBriefIraq.pdf> accessed 7 June 2017.
(140) See, for example, Saleh Al-Muzaini and Mirza U. Beg (eds.) ’Special Issue: The Long-term Environmental Effects of the Gulf War’ (1998) 24 Environment International 1–248; Andrew R. G. Price and John H. Robinson (eds.), ‘Special Issue: The 1991 Gulf War: Coastal and Marine Environmental Consequences,’ (1993) 27 Marine Pollution Bulletin 1–380.
(141) Disclosure: the present author led the missions to verify Saudi Arabia’s marine oil spill damage claims. The UNCC‘s expert consultants identified locations that they wished to verify and we were able to have full access to observe those sites as well as sites identified by Saudi Arabia’s experts.
(144) ibid. paras. 194–8.
(145) ibid. 240–8.
(146) UNEP, Report on the UN Inter-Agency Plan of Action for the ROPME region, reprinted in Mark Weller (ed.), Iraq and Kuwait: The Hostilities and their Aftermath (Cambridge: Grotius Publishers, 1993); UNEP, Updated Scientific Report on the Environmental Effects of the Conflict between Iraq and Kuwait, UNEP/GC.17/Inf. 9, Nairobi, March 1993.
(148) ibid. para. 29.
(149) ibid. para. 31. The International Tribunal for the Law of the Sea also referred to ‘plausibility’ as a standard when it said that the precautionary approach must be used ‘in situations where scientific evidence concerning the scope and potential negative impact of the activity in question is insufficient but where there are plausible indications of potential risks’. Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Advisory Opinion), ITLOS Reports, 1 February 2011.
(150) This conundrum has been a problem in domestic law. While the U.S. Oil Pollution Act allows state, tribal, and federal government trustees to draw on the Oil Spill Liability Trust Fund for assessment costs which can then be used to support claims, the Superfund does not, which ‘has had the effect of placing trustees in the unfortunate position of being forced to settle with one or more PRPs in order to obtain sufficient funds to perform a site assessment. … settling forecloses the possibility of filing suit against that PRP once the true extent of the damage it caused has been discovered. In fact, this lack of funding has often proved to be an insurmountable obstacle because agency budgets have historically authorized little or no funding for natural resource damage actions.’ Laura Rowley, ‘NRD Trustees: to what Extent are They Truly Trustees? (2001) 28(2/3) Boston College Environmental Affairs Law Review 459, 465 (citations omitted).
(154) Case Concerning the Factory at Chorzów (Germany v. Poland) Merits, Claim for Indemnity, Judgment, PCIJ Reports (Series A No. 17, 47) 13 September 1928.
(156) David. D. Caron, ‘Introductory Note’ (1992) 31 ILM 1009; Cymie R. Payne, ‘Environmental Claims in Context: Overview of the Institution’ in Payne and Sand (n 27) text at note 52; Garmise (n 76) 840, 841. The Governing Council prioritized payment of the monitoring and assessment awards; this allowed the start of projects that eventually provided useful information for the UNCC‘s review of other environmental claims. UNCC Governing Council decision 73, S/AC.26/1999/73, 25 June 1999; Governing Council decision 100, S/AC.26/2000/100, 19 June 2000, para. 1(e) concerning the ‘third phase of payment;’ Governing Council decision 256, S/AC.26/256, 8 December 2005).
(157) Letter Dated 30 May 1991 from the Secretary-General Addressed to the President of the Security Council, UN SCOR, Forty-sixth Session, para. 6, at 3, UN Doc. S/22661, 31 May 1991 (Secretary-General’s recommendation to UN Security Council of the percentage of the value of Iraq’s petroleum exports to be transferred to the UNCC Compensation Fund for satisfaction of UNCC awards); SC Res. 705, 15 August 1991, 30 ILM 1715 (1991) (setting 30 per cent level); International Claims Litigation II: A Case Study of the UNCC, 99th Proceedings of the American Society of International Law 325, 334 (2005). UN Security Council Resolution 1483 (2003) reduced the percentage of Iraq’s oil revenues paid to the Compensation Fund from 25 per cent to 5 per cent where it remains; it also established the Development Fund for Iraq (DFI), whose International Advisory and Monitoring Board assumed responsibility for the proceeds of petroleum sales and payments to the Compensation Fund. Report of the Secretary-General pursuant to paragraph 5 of Resolution 1859 (2008), S/2009/385, para. 8. SC Res. 1905, S/RES/1905, 21 December 2009, para. 4.
(158) Governing Council decision 272, S/AC.26/Dec.272 (2014); Governing Council decision 273, S/AC.26/Dec.273 (2015).
(160) Joe Nichols, ‘Scope of Compensation for Environmental Damage under the 1992 Civil Liability Convention and the 1992 Fund Convention’ in Frank Maes (ed.), Marine Resource Damage Assessment, Liability and Compensation for Environmental Damage (Dordrecht: Springer, 2005), 59–66.
(161) EU Council Directive 2004/35/EC of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (Environmental Liability Directive), OJ L143/56 (2004), as amended by Council Directive 2006/21/EC, OJ L102 (2006) and Council Directive 2009/31/EC, OJ L140, Preamble (14), Art. 2(1).
(162) Huguenin, Donlan, Van Geel, and Paterson (n 100). UNCC Governing Council decision 7 (n 54) para 35, was itself proposed in a working paper submitted by the United States, Criteria for Claims for Environmental Damage and the Depletion of Natural Resources, S/AC.26/1991/WP.20, 20 November 1991, based on the US natural resource damage legislation.
(163) ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts (n 24), Art. 36; see also Case concerning the Gabčikovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, ICJ Reports 7 81, para. 152; Factory at Chorzów (n 154) 29.
(169) Fifth ‘F4’ Report (n 14) para. 67. This is consistent with the UNCC’s jurisdiction for broad scope of compensable losses. Although the International Oil Pollution Compensation Funds excludes health risks, its compensation scheme is established within a very different context and has different goals. See also, Sand and Hammitt (n 168) 195.
(170) Fifth ‘F4’ Report (n 14). However, a claim by the United States for compensation of US Army expenses to monitor health risks to US military personnel for exposure to pollutants from the oil well fires and other sources was rejected as non-compensable expenses for costs incurred for military operations under Governing Council decision 19. Second ‘F4’ Report (n 20) paras. 332–5.
(171) Second ‘F4’ Report (n 20) paras. 32–5, 34; Thomas Mensah and Peter Sand have referred to these as ‘solidarity’ costs. Thomas A. Mensah, ‘Foreword’ in Payne and Sand (n 27) xix; Sand (n 65). Solidarity is a concept rooted in Emer de Vattel’s argument that states have a legitimate expectation that others will assist them when they are threatened with ‘disaster and ruin’, although its modern meaning and status in international law is much debated. Rudiger Wolfrum and Chie Kojima (eds.), Solidarity: A Structural Principle of International Law (Berlin: Springer-Verlag, 2010).
(173) ibid. (n 58) para. 34. The F4 panel referred to the following: General Assembly resolutions 46/216 (20 December 1991) and 47/151 (18 December 1992) (both entitled, ‘General Assembly resolution concerning international cooperation to mitigate the environmental consequences on Kuwait and other countries in the region resulting from the situation between Iraq and Kuwait’). See also the report of the United Nations Environment Programme entitled ‘Introductory report of the Executive Director: environmental consequences of the armed conflict between Iraq and Kuwait’, UNEP/GC.16/4/Add.1; Intergovernmental Oceanographic Commission of the United Nations Educational, Scientific and Cultural Organization Assembly Resolution VXI-14 (1991) entitled ‘Oceanographic Co-operation within the ROPME sea area’; decision 16/11/A of the Governing Council of the United Nations Environment Programme at its sixteenth session entitled ‘The environmental consequences of the armed conflict in the Gulf area’, 31 May 1991; and International Maritime Organization Circular letter No. 1492, 5 March 1991. A number of international agreements and declarations recognize the obligation to provide assistance to respond to environmental emergencies. For example, principle 18 of the Declaration of the United Nations Conference on Environment and Development (Rio de Janeiro), 1992, A/CONF.151/26, Vol. I, provides that ‘States shall immediately notify other States of any natural disasters or other emergencies that are likely to produce sudden harmful effects on the environment of those States. Every effort shall be made by the international community to help States so afflicted.’ See also Art. 194 of the United Nations Convention on the Law of the Sea (1982), 10 December 1982.
(175) ibid. 265–73.
(176) For example, Julio Barboza, ‘Environmental Damage’ in Alexandre Timoshenko (ed.), Conclusions by the Working Group of Experts on Liability and Compensation for Environmental Damage Arising from Military Activities, in Liability and Compensation for Environmental Damage, Compilation of Documents (Nairobi: United Nations Environmental Programme, 1998), 97 (‘Some such elements as do not belong to the notion or [sic] “environment”, (human health), or to the notion of “natural environment” (cultural elements) should, therefore, be discarded.’).
(179) ibid. para. 81.
(180) ibid. para. 80.
(181) ibid. para. 80.
(186) ibid. paras. 353–66, Annex I.
(187) The amount awarded also reflected a reduction to account for ‘inadequacies in the information provided by Jordan and also the fact that Jordan failed to take steps to mitigate the damage, particularly by failing to reduce grazing pressure on the rangelands’ Fifth ‘F4’ Report (n 14) paras. 362–3.
(188) See also Kuwait’s US$ 194.1 million claim for the disruption of ecological services and human activities in desert areas. Fifth ‘F4’ Report (n 14) paras. 413–75. Desert areas were damaged by tarcrete, windblown sand, dry oil lakes, wet oil lakes, oil-contaminated piles, oil-filled trenches, oil spills, military fortifications, and open detonation and open burning of ordnance. Ecological services that were harmed included soil stabilization, soil microcommunities, wildlife habitat, and vegetative diversity; human activities that were temporarily diminished included animal grazing and desert camping (a popular and culturally important form of recreation). Kuwait had submitted claims in the first instalment for the costs of assessing environmental damage from oil lakes that had resulted from oil well fires and evaluating technology to remediate the damage. In the fourth instalment, the panel reviewed its claims for cleaning and restoring terrestrial damage from oil wells, pipelines, trenches, mines, and other remnants of war.
(189) Sand (n 65) 174–90; David D. Caron, ‘The Place of the Environment in International Tribunals’ in Jay, E. Austin and Carl, E. Bruch (eds.), The Environmental Consequences Of War: Legal, Economic And Scientific Perspectives (Cambridge: Cambridge University Press, 2000), 253, 256.
(190) Sand (n 65) 173. See David D. Caron, ‘Finding Out What the Oceans Claim: The 1991 Gulf War, the Marine Environment, and the United Nations Compensation Commission’ in David D. Caron and Harry N. Scheiber (eds.), Bringing New Law to Ocean Waters (Leiden: Nijhoff, 2004), 393, 394; Caron (n 28).
(192) Caron (n 28) 268. Caron ties this shift in perspective to an equivalent change from a government owning the claims of its citizens (and residents) to the UNCC approach where the government acted as an agent for the individual claimants. Reflecting the earlier practice, a British court found that the British government properly declined to pay a citizen money that it had received from the Chinese government ‘on account of debts due to British subjects’, stating that the relationship was not ‘the duty of an agent to a principal, or of a trustee to a cestui que trust’. Rustomjee v The Queen, II QBD 74 quoted in Whiteman (n 22) Vol. III, 2051–2.
(193) UNCC Governing Council, Distribution of Payments and Transparency, S/AC.26/Dec.18, 24 March 1994. While traditionally international courts and tribunals have recognized only states as parties, states could espouse the claims of individuals as a matter of diplomatic protection; the advent of Mixed Arbitral Tribunals allowed resolution of disputes between individuals and states, and between nationals of different states. Paul de Auer, ‘The Competency of Mixed Arbitral Tribunals’ (1927) Transactions of the Grotius Society xxvii–xxx.
(194) Crook (n 76) 87: ‘prior to the UNCC, states’ decisions whether to seek compensation for war damages, and the amounts sought, typically rested on political considerations, not on law-based assessments of individuals’ injuries. … For the first time, a multilateral UN mechanism has been created to provide redress for the individual consequences of illegal state action.’
(195) UNCC Governing Council decision 132, S/AC.26/Dec.132, 21 June 2001.
(197) Mojtaba Kazazi, ‘Environmental Damage in the Practice of the UN Compensation Commission’ in Michael Bowman and Alan Boyle (eds.), Environmental Damage in International and Comparative Law: Problems of Definition and Valuation (Oxford: Oxford University Press, 2002), 129–39.
(199) UNCC, Statement of the President of the Governing Council, S/AC.26/2013/1, 20 November 2013.
(201) Governing Council decision 269, S/AC.26/Dec.269, 7 April 2011.
(204) Brian Orend, ‘Jus Post Bellum’ (2000) 31(1) Journal of Social Philosophy 117, 118. Orend uses the example of the 1990–1 Gulf War in this article. Orend observes that the UNCC compensation fund ‘was an enlightened and defensible actualization of the compensation principle’.
(209) There has been very little discussion of choice of law in the environmental protection context compared to the well developed discussion of conflicts between relatively permissive rules of international humanitarian law and more restrictive human rights law. ILC, Preliminary report on the protection of environment, A/CN.4/674, A/CN.4/674/Corr.1, 30 May 2014, para 3 (‘Since the applicable law in relation to armed conflict clearly extends beyond the realm of the law of armed conflict, it is sometimes not sufficient to refer to international humanitarian law as lex specialis in the hope of finding a solution to a specific legal problem. Other areas of international law may be applicable, such as international human rights and international environmental law.’); ILC, Second Report on the Protection of the Environment in Relation to Armed Conflicts, A/CN.4/685, 28 May 2015 (quoting from Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, ICJ Reports 136, para. 106). ILC Analytical Study 2006, ILC Study Group on the Fragmentation of International Law. Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law; Report of the Study Group of the International Law Commission, Finalized by Martti Koskenniemi, UN Doc. A/CN.4/L.682 and Add.1 and Corr. 1, New York: ILC, 2006.
(210) UNCC commissioners did address rape committed by Iraqi soldiers in a manner that received positive comment in UN Division for the Advancement of Women Department of Economic and Social Affairs, Sexual Violence and Armed Conflict: United Nations Response, at <http://www.un.org/womenwatch/daw/public/w2apr98.htm> accessed 7 June 2017, referring to UNCC Governing Council decision 3, Personal Injury and Mental Pain and Anguish, S/AC.26/1991/3, 23 October 1991; and UNCC, Report and Recommendations Made by the Panel of Commissioners Concerning Part One of the Second Instalment of Claims for Serious Personal Injury or Death (Category “B” Claims), S/AC.26/1994/4, 15 December 1994, para. 17.
(211) Fionnuala Ní Aoláin and Dina Francesca Haynes, ‘Compatibility of Justice for Women with Jus Post Bellum Analysis’ in Stahn, Easterday, and Iverson (n 22) 160–77; Freya Baetens, ‘Facilitating Post-Conflict Reconstruction: Is the UN Peacebuilding Commission Successfully Filling an Institutional Gap or Marking a Missed Opportunity?’ in Stahn, Easterday, and Iverson (n 22).
(212) UNGA, Challenge of sustaining peace, Report of the Advisory Group of Experts on the Review of the Peacebuilding Architecture in UN Doc. A/69/968–S/2015/490, 30 June 2015, paras. 51–6, 77–82; UNGA, A More Secure World: Our Shared Responsibility, Report of the High-Level Panel on Threats, Challenges and Change in UN Secretary-General, Note by the Secretary-General, UN Doc. A/59/565, 17 November 2004, para. 103.
(213) Indeed, in the social context of some Middle Eastern countries women’s voices were sometimes entirely mute—for example, household public health assessments were hampered because of the difficulty of hiring qualified female investigators to interview female head-of-household informants, particularly given the constraints on interactions between the male programme directors and the female investigators. See also Christopher S. Gibson, Timothy John Feighery, Trevor M. Rajah, War Reparations and the UN Compensation Commission: Designing Compensation After Conflict (New York: Oxford University Press, 2015), 93, 202–3.
(214) Although one could argue that this was a war over natural resources—oil—the concerns that have been associated with conflict resources in Liberia, the Democratic Republic of the Congo, and elsewhere do not apply here as the State of Kuwait resumed its governance of its oil industry once the occupation ended. See chapter 7 in this volume.
(220) It is argued by some that the burden of reparations on Iraq’s own population was too great, raising questions of disproportion and human rights violations. It is submitted that the government of Iraq, documented mismanagement of the Oil for Food Program and the 2003 Gulf War, not the UNCC programme, were responsible for the suffering of the Iraqi people. See also, Orend (n 204) 133 (‘everything that everyone knew about the Hussein regime indicated that the funds would be used for its own buttressing and benefit … but the extent and depth of Iraqi civilian deprivation in the aftermath leaves one wondering whether the Allies could have done more to ease their suffering, without providing any comfort or succor to their aggressor regime’). There is a further question of so-called ‘odious debt’ and its argument that the burden of collective responsibility represented by reparations payments is not an appropriate sanction for armed conflict where the belligerent state is a dictatorship. The factual, legal, and theoretical basis for these points typically focuses on compensation in general and does not include detailed assessment of environmental damage.
(221) See text at note 15 above, for comparison with the cost of the smaller 2010 Deepwater Horizon oil spill in the Gulf of Mexico.
(222) Memorandum of Understanding for the Establishment of the Regional Environmental Rehabilitation Advisory Group, in Executive Summary of Fourth Meeting on Regional Cooperation pertaining to Remediation of the Environmental Damage (2 May 2006) Annex III (in author’s files). The Executive Head of the UNCC said, at the eighth RERAG meeting, that ‘the RERAG program, while reflecting on the F4 follow up program, also corrects its deficiencies for not addressing the environmental issues in Iraq’. State of Kuwait NFP, RERAG 8th Meeting (2009).
(223) The Kuwait Petroleum Corporation’s production and sales loss claim received the largest award made by the UNCC, for Kuwait’s ‘inability to use the oilfields and refineries to produce and sell oil and gas during the period of the illegal occupation; and thereafter the inability to use such property or to use it fully, because of the physical damage inflicted on the oilfields and refineries’. The award was US$ 14,750,324,488, of which US$ 4.6 billion remains to be paid. Report and Recommendations made by the Panel of Commissioners Concerning the Fourth Instalment of ‘E1’ Claims, UN Doc. S/AC.26/2000/16, 29 September 2000, para. 260, Table 15.
(224) RERAG, Report on Fifth Meeting on Regional Cooperation Pertaining to Remediation of the Environmental Damage (22 November 2006) (in author’s files).
(225) Meeting of the Claimant Countries, Iraq and the UNCC on Possible Mechanisms for the Use of UNCC Environmental Awards and the Creation of a Follow-Up Program (First RERAG Meeting) (September 2005) (in author’s files).
(226) First RERAG Meeting.
(229) Jutta Brunnée, ‘The Sources of International Environmental Law: Interactional Law’ in Samantha Besson and Jean d’Aspremont (eds.), Oxford Handbook on the Sources of International Law (2017).
(231) Philippe Sands, Ruth Mackenzie, and Ruth Khalastchi, ‘Background Paper’ in Alexandre Timoshenko (ed.), Conclusions by the Working Group of Experts on Liability and Compensation for Environmental Damage Arising from Military Activities, in Liability and Compensation for Environmental Damage, Compilation of Documents (Nairobi: United Nations Environmental Programme, 1998) 35–6.