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Head of State Criminal Responsibility for Environmental War Crimes: Case Study: the Arabian Gulf Armed Conflict 1990-1991

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Head of State Criminal Responsibility for Environmental War Crimes: Case Study: the Arabian Gulf Armed Conflict 1990-1991 Pace University DigitalCommons@Pace Dissertations & Theses School of Law 9-1-2007 Head of State Criminal Responsibility for Environmental War Crimes: Case Study: The Arabian Gulf Armed Conflict 1990-1991 Meshari K. Eifan Pace University School of Law Follow this and additional works at: https://digitalcommons.pace.edu/lawdissertations Part of the Environmental Law Commons, and the Human Rights Law Commons Recommended Citation Meshari K. Eifan, Head of State Criminal Responsibility for Environmental War Crimes: Case Study: The Arabian Gulf Armed Conflict 1990-1991 (Fall 2007) (S.J.D. dissertation, Pace University School of Law), available at http://digitalcommons.pace.edu/lawdissertations/2/. This Dissertation is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Dissertations & Theses by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. Pace University School of Law Head of State Criminal Responsibility For Environmental War Crimes: Case Study: The Arabian Gulf Armed Conflict 1990-1991 A Comparative Study International Approach v. National Approach MESHARI K. EIFAN Thesis prepared For The Degree of Doctor of Juridical Science (S.J.D.) Under the supervision of: Professor JEFFREY G. MILLER FALL 2007 Acknowledgment My gratitude goes first to my academic advisor, Professor Jeffrey G. Miller. Professor Miller was generous with his time and candid advice on how to think about and refine such an inherently broad and unruly topic. Even though serving as Vice Dean for Academic Affairs, Professor Miller’s office door and his heart were always open to me. I am extremely grateful to Professor Nicholas A. Robinson. Despite his heavy schedule, Professor Robinson lent me considerable time to inspire and publish new work in this field. Professor Robinson was desirous for this work to see the light. I would like to express my sincere gratitude to Professor Mark R. Shulman who was a friend and a teacher at the same time. Professor Shulman provided me with several important tools which enhanced my writing skills and academic research. In addition, as Assistant Dean for Graduate Programs at Pace Law School, Professor Shulman made all the administrative obstacles disappear. I would like to acknowledge the assistance of Professor Thomas M. McDonnell for his input and steady support, particularly in Chapter I of this thesis. Professor McDonnell was so helpful when he reviewed Chapter I and he provided me with important feedback. Professor Ann Powers also deserves thanks for continuous encouragement and support. Thanks also are due to Professor Marie Stefanini Newman, Director of the Pace Law Library, for her contribution and her willingness to devote the Pace Law Library resources to my thesis. I am indebted to chief editor Ms. Deborah Zipf for the tremendous time and effort she devoted. Ms. Zipf always follows the time framework I suggested to her whatever the time available to her. Finally, I wish to express my appreciation to my family (parents, wife, and two daughters) for their patience during the three year period during which I wrote this thesis. Meshari Eifan White Plains, New York October 2, 2007 i List of Abbreviations CPA Iraqi Coalition Provisional Authority EJIL European Journal of International Law ENMOD Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques GC Iraqi Governing Council ICC International Criminal Court ICCPR International Covenant of Civil and Political Rights ICJ International Court of Justice ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the former Yugoslavia IEL International Environmental Law ILC International Law Commission IMT International Military Tribunal at Nuremberg IMTFE International Military Tribunal for the Far East IST Iraqi Special Tribunal JCE Joint Criminal Enterprise NGO Nongovernmental Organization PCIJ Permanent Court of International Justice Protocol I First Protocol Additional to Geneva Conventions of 12 August, 1949, related to the Protection of Victims of International Armed Conflict 1977 SICT Supreme Iraqi Criminal Tribunal UNSC Security Council of the United Nations U. N. United Nations UNCC United Nations Compensation Committee UNCLOS United Nations Convention on the Law of the Sea UNEP United Nations Environmental Program WHO World Health Organization ii Contents Topic Pages Acknowledgment i List of Abbreviations ii Introduction 1 Chapter I: Devising an Adequate Remedy For Using Environmental Damage as a Strategy in the 1990- 7-47 1991 Gulf War Introduction 8 I. Environmental Impacts on the Gulf Region 12 II. United Nations Remedy for Environmental Devastation 17 III. The Nature of the United Nation Remedy 21 IV. Difficulties with and Disadvantages of the United Nations Remedy 25 V. The Sufficiency of the United Nations Remedy 29 VI. Arguments against a Criminal Remedy for Environmental 43 Destruction in the Gulf Region Conclusion and Observations 45 Chapter II: International Crimes And International Prosecutorial Policy 48-85 I. International and National Prosecutors: Similarities and Differences 50 II. Prosecutorial Considerations under International Law 55 1. Sufficiency of Evidence 55 2. The Gravity of the Crime 58 III. The International Legal Basis for Adoption of National 61 Prosecutorial Considerations iii 1. The “Gravity of the Offense” and National Considerations 65 a. The Impact of the Crime 70 b. The Manner of the Commission 74 c. Mens Rea 76 d. Motive 79 Conclusion and Observations 84 Chapter III: Substantive Aspects of International Criminal Prosecution 86-135 I. International Basis of Criminal Responsibility 87 1. Superior Responsibility Based on an Unlawful Order 93 2. Principles of Joint Criminal Enterprise (JCE) 97 3. Command Responsibility 102 4. The Iraqi Leader's Role in Destruction of the Environment 114 II. International Legal Sources of Criminality 125 1. Geneva Convention IV (relating to the Protection of Civilian 128 Persons in Time of War) 1949 Conclusion and Observations 134 Chapter IV: Procedural Aspects of International Criminal Prosecution 136-179 I. The Legality Issue 138 II. The Jurisdiction Issue 144 1. The International Court of Justice 145 iv 2. International Criminal Court 146 3. Ad Hoc Tribunals’ Jurisdiction 152 157 III. The Immunity Issue 162 IV. The Statute of Limitations Issue 165 V. The Right to Be Tried Without Undue Delay 171 VI. The Issue of the Transfer of Defendants to International Tribunals 178 Conclusion and Observations Chapter V: War Crimes against the Environment and a National Criminal Remedy 180-230 Introduction 181 I. Common Issues 181 1. International Law as a Source of Law within the Kuwaiti 182 and the Iraqi Legal Systems 2. The Availability of National Criminal Legislation 187 3. Saddam Hussein’s Immunity before National Courts 193 4. The Death Penalty Issue 199 5. The Issues of Evidence and of Defendant’s Rights 202 II. The Kuwaiti Trial 205 1. The Basis for Jurisdiction 205 2. Obtaining Custody of the Defendant 208 v 3. Trial in Absentia or Transferring the Whole Judicial 215 Proceeding III. The Iraqi Trial 219 1. The Basis for Jurisdiction 219 2. Comments on the Statute of the Supreme Iraqi Criminal 221 Tribunal Conclusion and Observations 228 Conclusion 231 Appendixes 234 References 325 vi Introduction Introduction Internationally, environmental protection has increased through time. Despite this phenomenon, environmental problems have expanded as developments in technology have occurred. This is true both in peace time and in war time. Warfare, historically, is considered the major enemy of the environment. Pollution and environmental devastation are common consequences of almost every military battle. The international community’s awareness of this sad fact has led that community to try to address this dilemma and to set legal frameworks determining liability for environmental damage caused by military activities. In international law, the responsibility for environmental devastation occurring during armed conflict can be attributed to both states and individuals. While the state’s responsibility is civil, the individual’s responsibility encompasses both civil and criminal. By and large, the individual’s criminal responsibility for environmental destruction during armed conflict can be enforced on either the international or the national level. This study aims to appraise the legal remedy the international community should take in order to meet its needs on this issue, the protection of the environment during the time of armed conflict. In addition, the paper aims to provide a comparative study of the existing international criminal law framework and its relation to environmental protection during armed conflict. To approach this objective, the study will review the environmental crisis that occurred during the armed conflict in the Arabian Gulf in 1990-1991 as a case study for determining whether the international community adequately responds to these events. 1 Introduction Thus, this study is divided into five main parts. Part I assesses the justifications for a remedy, the criminal remedy, that is more adequate than the United Nations remedy taken toward Saddam Hussein’s actions against the environment, a civil remedy. Part II grapples with when the criminal remedy is warranted. Part III deals with the substantive aspects of international criminal prosecution. Part IV reviews procedural issues
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