64 On the weekend of 9–10 February 1991 Derek Brown, environmental coordinator for the Bahrain Petroleum Company, flew over the Saudi coast. He subsequently said:
There are plenty of booms in place to protect harbours and installations, and there is a big clean-up operation going on. But the whereabouts of the enormous oil slicks reported a fortnight ago are a complete mystery… There is certainly a severe pollution problem but it does not look like an environmental catastrophe at the moment.
(Report in The Independent, (14 February 1991), p. 5) 65 In April 1992, the Pentagon said: ‘Between seven and nine million barrels of oil were set free
into the Gulf by Iraqi action’; Pentagon Final Report, op. cit., note 57 above, p. 0–26. In the same month, a Greenpeace paper by William M.Arkin, ‘Gulf War Damage to the Natural Environment’, pp. 2–3, gave the same figure, but mentioned additionally that smaller quantities of oil continued to leak into the Gulf from a number of sources until May or early June 1991. See also the various figures in the publication of the Kuwait Environment Protection Council, State of the Environment Report: A Case Study of Iraqi Regime Crimes Against the Environment, Kuwait, (November 1991), pp. 28–30. For a very low figure (1.5 million barrels), see letter by Samir S.Radwan in Nature, 350 (6318), 11 April 1991, p. 456.
66 A short survey of ecological damage is provided in The Environmental Legacy of the Gulf War, (1992), Amsterdam: Greenpeace. It is weak on legal issues, but, has useful reports of investigations and a wide range of references.
67 The destruction of oil installations had certainly commenced by 22 January. On that day ‘US military authorities accused Iraq of setting fire to installations at three oilfields in Kuwait.
The US command in Riyadh released aerial photographs which, it said, showed Iraq had blown up parts of Al-Wafra oilfield on Kuwait’s border with Saudi Arabia’; The Independent, (23 January 1991), p. 1.
See also Gail Counsell, ‘Blowing up oilfields is “easy task”’, The Independent, (23 January 1991), p. 2.
68 Kuwait Environment Protection Council, State of the Environment Report, op. cit., note 65 above, pp. 1, 2–3, and Table in Fig. 2. This states that after 26 February, 613 wells were on fire, 76 gushing, and 99 damaged. It quotes the Ministry of Oil in Kuwait as stating that six million barrels of oil per day, and 100 million cubic metres of gas a day, were being lost.
Greenpeace’s The Environmental Legacy of the Gulf War, pp. 17 and 38, gives figures of between 2.3 and 6 million barrels per day.
69 Letter from permanent Mission of Kuwait at UN to the UN Secretary-General, (12 July 1991); text in Plant (ed.), Environmental Protection and the Law of War, (1992), p. 265.
70 Confirmed by the Pentagon in Conduct of the Persian Gulf Conflict: An Interim Report to Congress, Department of Defense, Washington DC, (July 1991), pp. 13–1 and 13–2; and in the 1992 Pentagon Final Report, op. cit., note 57 above, p. 0–27.
71 Pentagon Interim Report, op. cit., note 70 above, p. 13–2; see also Pentagon Final Report, op. cit., note 57 above, p. 0–27: ‘As with the release of oil into the Persian Gulf, this aspect of Iraq’s wanton destruction of Kuwaiti property had little effect on Coalition offensive combat operations. In fact the oil well fires had a greater adverse effect on Iraqi military forces.’
72 Pentagon Interim Report, op. cit., note 70 above, pp. 12–6, 12–7 and 13–1, expresses some puzzlement; as does Pentagon Final Report, op. cit., note 57 above, p. 0–27.
73 Points emphasized in Pentagon Final Report, op. cit., note 57 above, p. 0–27.
74 President Bush, news conference of 25 January 1991, US Department of State Dispatch, (4 February 1991), p. 68.
75 Sunday Times, (27 January 1991), p. 24. The term ‘environmental terrorism’ was also used by White House Press Secretary Marlin Fitzwater on 13 February; US Department of State Dispatch, (18 February 1991), p. 114.
76 Hansard, vol. 184, col. 655, (28 January 1991).
77 Hansard, vol. 186, cols 285 and 286, (22 February 1991).
78 President Bush, statement made at the White House, (22 February 1991); US Department of State Dispatch, (25 February 1991), p. 125.
79 Reports in The Independent, (23 February 1991), p. 1.
80 See, e.g., Greenpeace, The Environmental Legacy of the Gulf War, op. cit., note 66 above, pp. 17–22 and 34.
81 John Horgan, ‘Up in Flames’, Scientific American, 264 (5), (May 1991), pp. 7–9; Neville Brown, The Blazing Oilwells of Kuwait’, The World Today, 47 (6), (June 1991);
D.W.Johnson et al., Airborne Observations of the Physical and Chemical Characteristics of the Kuwait Oil Smoke Plume’, Nature, 353 (6345), (17 October 1991), esp. at p. 621. There is, curiously, no systematic discussion of this subject in Arkin et al., op. cit., note 29 above.
Preliminary UN estimates in November 1991 were that two billion barrels of the country’s oil reserves had been lost; International Herald Tribune, Paris, (21 November 1991).
Notes 345
82 This is the clear conclusion of the Pentagon Interim Report, op. cit., note 70 above, p. 12–6;
and Pentagon Final Report, op. cit., note 57 above, pp. 0–26 and 0–27.
83 Pentagon Interim Report, op. cit., note 70 above, pp. 12–5 and 12–6.
84 Pentagon Final Report, op. cit., note 57 above, p. 0–27.
85 For such a proposal, see Peter Schweizer, ‘The Spigot Strategy’, The New York Times, (11 November 1990).
86 Report of the UN Secretary-General to the President of the Security Council, 20 March 1991 (S/22366). The report was by Under-Secretary-General Martti Ahtisaari.
For the view taken by coalition forces that the entire electricity generation and distribution system was a lawful target, see Chapter 4.
For fuller consideration of methods and means of warfare, see Chapter 5.
87 Needless Deaths in the Gulf War: Civilian Casualties During the Air Campaign and Violations of the Laws of War, Middle East Watch/Human Rights Watch, New York, (1991).
88 See for example the report by Paul Lewis, ‘Effects of War Begin to Fade in Iraq’, New York Times, (12 May 1991), p. 2E.
89 Oscar Schachter, ‘United Nations Law in the Gulf Conflict’, 85 American Journal of International Law, (1991), p. 466.
90 On the US attitude to Article 56, and to Protocol I in general, see above, text at notes 36 to 42.
91 House of Commons, Defence Committee, Tenth Report, Preliminary Lessons of Operation Granby, London: HMSO, (July 1991), pp. 10–11.
92 Statement on the Defence Estimates, 1991, vol. 1, London: HMSO, (July 1991), p. 17.
93 Pentagon Interim Report, op. cit., note 70 above, p. 12–3; and Pentagon Final Report, op.
cit., note 57 above, p. 0–10.
94 See, e.g., UN General Assembly Resolution 37/215 of 20 December 1982.
95 Tony Horwitz, ‘Report from Kuwait’, The Wall Street Journal Europe, Brussels, (21 January 1992), p. 1.; also Arkin et al., (1991), op. cit., note 29 above, pp. 132–5.
In March 1992 a British company, Royal Ordnance, said it had removed one million mines and 6,000 tons of ammunition from different parts of Kuwait; The Independent, (13 March 1992).
96 See reports by Nick Cohen in The Independent on Sunday, (10 November 1991), pp. 1 and 2.
97 Pentagon Interim Report, op. cit., note 70 above, 13–1; Nicholas A.Robinson, ‘Draft Articles, with Commentary’, paper at Ottawa Conference, (July 1991), p. 12; and Kuwait Environment Protection Council, State of the Environment Report, op. cit., note 65 above, p.
31.
98 On the methods of coping with the oil spills in the Gulf, see the news report by Peter Aldhous, ‘Big Test for Bioremediation’, Nature, 349 (6309), (7 February 1991), p. 447 (this method was rejected by the Saudi authorities); Arkin et al., (1991), op. cit., note 29 above, pp. 63–6; John Horgan, The Muddled Cleanup in the Persian Gulf, Scientific American, 265 (4), (October 1991), pp. 86–8; and Marguerite Holloway, ‘Soiled Shores’, same issue, pp.
81–94.
99 See, e.g., Christopher Bellamy’s report from HMS Sheffield in the Gulf, ‘Gulf Wildlife Bounces Back From Disaster’, The Independent, (22 January 1992).
100 Eugene Linden, ‘Getting Blacker Every Day’, Time, Atlantic edn, (27 May 1991), pp. 68–9.
101 AP report from Kuwait City in The Independent, (7 November 1991); Richard L.Garwin and Henry W.Kendall, ‘Quenching the Wild Wells of Kuwait’, Nature, 354 (6348), (7 November 1991), pp. 11–14.
102 See, e.g., the advertising section on Kuwait in International Herald Tribune, Paris, (29 April 1992), pp. 9–10; and Maria Kielmas, ‘Kuwait Plunders Oilfields to Destruction’, The Independent, (22 May 1992).
103 Tony Horwitz, report from Kuwait, The Wall Street Journal Europe, Brussels, (21 January 1992).
104 Hague Convention IV 1907, Article 3, was one legal basis for the demand for compensation from Iraq, including for damage to the environment.
105 By contrast, the Security Council was silent after the war on the subject of Iraq’s non- adherence to Additional Protocol I, 1977. This was for obvious reasons, including the fact that several coalition powers were not themselves parties to the Protocol, the US government being especially critical of it: they would hardly have been in a position to impose it on Iraq, even if they had wished to do so.
106 See US Department of State Dispatch, issues published in January–March 1991, for several statements by President Bush and others favouring the overthrow of the Iraqi regime.
107 Some discussion of a possible new treaty dealing with environmental damage in war took place at the international conference held at King’s College, London, on 3 June 1991.
108 L.C.Green, in his paper for the July 1991 Ottawa Conference (above, note 4), p. 14, suggested ‘the General Assembly or even the Security Council charging the International Law Commission, as a matter of urgency, to take up this issue’.
109 International Council of Environmental Law, ‘Law Concerning the Protection of the Environment in Times of Armed Conflict’, Munich Consultation, (13–15 December 1991), Final Recommendations, pp. 1–2.
110 The postponement, announced on 26 November 1991, was due to disagreements on the question of Palestinian representation. The International Conference had been intended to address, as one of its two themes, respect for international humanitarian law. Among the ICRC preparatory documents containing references to the effects of war on the environment was one entitled ‘Implementation of International Humanitarian Law, Protection of the Civilian Population and Persons Hors de Combat’, Geneva, (1991), 40 pp.
111 Draft resolution which was to have been item 4.2 on the provisional agenda of the Commission I, document dated 1 November 1991.
112 UN General Assembly decision 46/417 of 9 December 1991, requesting the Secretary- General to report on activities undertaken in the framework of the ICRC regarding protection of the environment in time of armed conflict.
113 This paper was published as ‘Protection of the Environment in Times of Armed Conflict:
Report of the Secretary-General’, UN Doc. A/47/328 of 31 July 1992.
114 United Nations Conference on Environment and Development, Rio de Janeiro, (3–14 June 1992), ‘Rio Declaration on Environment and Development’.
115 Kuwaiti woman interviewed on television programme, Dispatches, made by Jenny Barraclough and shown in the UK on Channel 4 on 8 January 1992.
116 Pentagon Interim Report, op. cit., note 70 above, p. 13–1. The Pentagon Final Report is silent on this issue.
117 The coalition was reportedly prepared to resort to chemical and/or nuclear weapons, and a plan was reportedly made known to the Iraqis to deter a possible Iraqi resort to chemical weapons; Christopher Bellamy, ‘Allies “put Iraqis off chemical war”’, The Independent, (29 November 1991).
118 Michael Bothe, ‘The Protection of the Environment in Times of Armed Conflict: Legal Rules, Uncertainty, Deficiencies and Possible Developments’, paper presented at ICRC Meeting on Protection of the Environment in Time of Armed Conflict, Geneva, (27–9 April 1992). See also the similar observation by Dieter Fleck (Director of International Affairs,
Notes 347
Federal Ministry of Defence, Bonn), ‘Legal and Policy Perspectives for the Protection of the Environment in Times of Armed Conflict’, paper presented at British Institute of
International and Comparative Law, London, (26 March 1992), pp. 5–6.
119 The words of Michael J.Matheson, Deputy Legal Adviser, US Department of State, in January 1987, as cited above, text at note 37. On the harmonization of rules, see also the conclusion of Chapter 5 in this volume.
120 ‘The US concern regarding more restrictive environmental provisions is that they could be implemented only at the expense of otherwise lawful military operations—such as attacking targets which require fuel-air explosives (FAE) for their destruction’; Colonel James P.Terry, US Marine Corps, ‘The Environment and the Laws of War: The Impact of Desert Storm’, Naval War College Review, xlv (1), (winter 1992), p. 65.
121 Some at ICRC became exasperated by the performance of the press: ‘The ICRC press officers dispassionately explained the importance of their neutrality, not once but a hundred times, to unreceptive journalists many of whom knew nothing of international humanitarian law or the Geneva Conventions, and who took a very different approach’; Paul-Henri Morard, Head, ICRC Press Division, The Press and Humanitarian Activities: A Unit in Heavy Demand’, in ICRC, The Gulf 1990–1991, op. cit., note 44 above, p. 45.
7
NAVAL OPERATIONS IN THE GULF
1 The opinions expressed in this chapter are those of the author and do not represent the views of the Royal Navy or the Ministry of Defence.
2 Perhaps the most apposite and poignant aspect of the Royal Navy’s long association with the Gulf was the pre-emptive reinforcement of Kuwait that took place in 1961. After some bellicose statements from the Iraqi government, the Kuwaiti government formally requested British assistance under the then very recent Anglo-Kuwait treaty. This led to an initial landing of some 600 Royal Marines from HMS Bulwark, which was followed by rapid reinforcement by sea and air including a naval concentration of some forty-five Royal Navy warships. See James Cable, Gunboat Diplomacy 1919–79, London: Macmillan in
association with the International Institute for Strategic Studies, (1981), pp. 65–7.
3 ‘The Armilla patrol is continuing to provide reassurance to British Merchant Shipping in the Gulf by independently patrolling International Waters and remaining immediately available to go to their protection’, Hansard, HC 147, (20 February 1989), col. 446.
4 Joint memorandum submitted by the Foreign and Commonwealth Office and other departments to the House of Commons Defence Committee, 3rd Rep, Defence Committee 1986–7, HC 409, p. 70.
5 Despatch by the Joint Commander of Operation Granby published in the Second Supplement to The London Gazette of Friday 28 June 1991.
6 A full list of the eight mandatory resolutions of the UN Security Council is contained at Annexe 2 of the Minutes of Evidence of the Foreign Affairs committee; HC 655ii, 89/90, (24 October 1990).
7 Resolution 661 applied in equal terms also to imports from and exports to occupied Kuwait.
There was thus also a corresponding additional exception in favour of assistance to the legitimate government of Kuwait and its agencies. For further discussions see p. 158.
8 Op. cit., note 6 above.
9 Op. cit., note 5 above, p. G38.
10 SI 1990/1651 Iraq and Kuwait (UN Sanctions) Order, effective 9 August 1990; SI 1990/1652 Iraq and Kuwait (UN Sanctions) (Dependent Territories) Order 1990, effective 9 August 90.
11 By Article 6 of SI 1990/1651 where any ‘authorized officer’ has reason to suspect that any British ship registered in the UK has been or is being or is about to be used in contravention of the foregoing, then he may (either alone or accompanied and assisted by persons under his authority) board the ship and search her and may for that purpose use or authorize the use of reasonable force. There is a further power for the authorized officer to prevent the
continuation of the voyage of the ship, and to take her to any port. The definition of
‘authorized officer’ is that provided for by s.692(1) of the Merchant Shipping Act 1894, as meaning any commissioned officer on full pay in HM naval or military service or a customs officer. Similarly, SI 1990/1652 makes provision in respect of certain dependent territories.
12 The UN Charter prohibits the use or threat of force. See Article 2 (4). Self defence is a recognized exception to this blanket prohibition, however, and is set out in Article 51 of the UN Charter.
13 See Lauterpacht, Greenwood, Weller and Bethlehem, The Kuwait Crisis: Basic Documents, Cambridge, (1991), Chapter 5, p. 245. See also The Times, (13 August 1990): ‘Mr Baker said in Washington yesterday that the US would intercept Iraqi oil shipments from the Gulf, after what he called a request by exiled Kuwait leaders to enforce UN sanctions against Iraq.
14 The Times, (13 August 1990).
15 Op. cit., note 13 above, p. 245.
16 The Times, 14 August 1990.
17 Op. cit., note 13 above, p. 246.
18 The Times, 15 August 1990.
19 For the full text of this warning see op. cit., note 13 above, p. 248.
20 Op. cit., note 6 above, p. 20.
21 Article 41 of the United Nations Charter reads:
The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions….
These may include complete or partial interruption of economic relations.
This should be contrasted with Article 42 of the UN Charter:
Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade and other operations by air, sea or land forces of Members of the United Nations. [Emphasis supplied]
22 See Mr Baker’s comments already quoted both in the text above and also at note 13 above.
See also the UN Press Release of 16 August 1990 on the clarification of the reported statement by the UN Secretary-General concerning the imposition of a naval blockade. Op.
cit. note 13 above, p. 247.
23 See variously: C.J.Greenwood, ‘Iraq’s Invasion of Kuwait: Some Legal Issues’, (1991), The World Today, 47 (3); George C.Walker, The Crisis over Kuwait, August 1990-February 1991’, (1991), Duke Journal of Comparative and International Law, (1), pp. 32 and 33.
24 For full text of Article 42 see note 21 above. For further discussion of the applicability of Article 42, see pp. 33–9 passim.
25 For full text of Article 51 see note 12 above.
26 Op. cit., note 13 above, p. 245. For further discussion see Chapter 2.
Notes 349
27 Resolution 665 (1990) adopted by the Security Council at its 2,938th Meeting on 25 August 1990 contained the following words (emphasis supplied):
1. Calls upon those Member States co-operating with the Government of Kuwait which are deploying maritime forces to the area to use such measures commensurate to the specific circumstances as may be necessary under the authority of the Security Council to halt all inward and outward maritime shipping.
28 See note 10 above.
29 UN Charter Articles 2 (5) and 25 respectively provide that:
All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventative or enforcement action.
The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.
30 The United States apparently adheres to this view and so the US Navy, were this operation to have amounted to an international armed conflict, could expect to exercise the normal rights of visit and search of shipping and would expect that all states, whether ‘co-belligerents’ or
‘neutral’ would acquiesce in such activity. See the preface to US Navy Naval Warfare Publication, The Commander’s Handbook on the Law of Naval Operations, NWP 9, p. 2:
It is the policy of the United States to apply the law of armed conflict to all circumstances in which the armed forces of the United States are engaged in combat operations, regardless of whether such hostilities are declared or otherwise designated as ‘war’. Relevant portions of Part II [i.e. The Law of Naval Warfare] are, therefore, applicable to all hostilities involving US naval forces irrespective of the character, intensity, or duration of the conflict.
31 Op. cit., note 13 above, p. 246.
32 Hansard HC Debates, (28 January 1986), vol. 90, col. 426.
33 The classic statement of self defence is contained in the formulation by the US government sent to the British government in 1841 in the Caroline case, 29 BFSP 1137–8; R.Jennings,
‘The Caroline and Macleod Cases’, 32 American Journal of International Law 82 (1938):
it will be for… [Her Majesty’s] Government to shew a necessity of self defence… [that in the exercise of self defence those exercising it] did nothing unreasonable or excessive; since the act justified by the necessity of self defence, must be limited by that necessity,
34 See op. cit., note 13 above, p. 249. Extract of a press conference given by the British Foreign Secretary, Mr Douglas Hurd on 24 August 1990:
So the discussions in New York are not of an empty, ritualistic kind.
We have no doubt, the Americans have no doubt, about the legal basis on which our ships operate, but we are anxious that that basis should be