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When he gave Saddam Hussein 48 hours to get out of Iraq, President Bush warned Iraqi soldiers and civilians that they could be tried as war criminals if they “destroy oil wells, a source of wealth that belongs to the Iraqi people.” That a nation’s destruction of its own oil wells could qualify as a war crime might surprise those who recall that “scorched earth” tactics are as old as war itself. But a number of experts on international law say it has legal merit, although that view wasn’t unanimous. Robert F. Turner, associate director of the University of Virginia’s Center for National Security Law, applauded the president for making the threat, even if it is a form of misinformation, because it might deter Saddam Hussein’s regime from doing further harm to the Iraqi people. He said he’s doubtful that Bush could make the charge stick. Turner noted that during World War II and the Vietnam War, the United States attacked oil depots and similar targets held by the enemy. “Since then, there’s been a growing body of law that says it would be a war crime for us to attack Iraq’s oil wells,” Turner said. “But as I see it, it wouldn’t be a war crime for Iraq to destroy its own fields.” However, Mark A. Drumbl, professor of international law at Washington and Lee University, sees the legal issue differently. “The president is absolutely right,” Drumbl said. “Under both customary law and the Rome statute creating the International Criminal Court, the deliberate infliction of long-term, widespread and severe damage to the environment is a war crime.” Although neither Iraq nor the United States has submitted to the jurisdiction of the International Criminal Court, newly created this year, both nations are bound by the customary law upon which the Rome statute was based, he said. That’s so even if Iraq inflicts the damage on its own environment, he added. Drumbl believes that Iraqi combatants or civilians could be held responsible even for damage to resources that did not result in environmental harm. “Although destruction of infrastructure would rank rather low on the scale of Saddam Hussein’s crimes against the Iraqi people, it would be punishable under international law prohibiting pillaging or the destruction of heritage sites,” he said. Carroll Bogert, communications director for the New York office of the humanitarian watchdog organization Human Rights Watch, agreed with Drumbl’s assessment that Iraqi personnel could probably be prosecuted for causing substantial environmental damage while destroying Iraq’s own oil fields. Robert K. Goldman, a law professor at American University, cautioned that the law of armed conflict might not unambiguously condemn the destruction of infrastructure. A government has a certain leeway, for instance, to repel an invader by denying him the use of things of value. Holding Saddam Hussein or his underlings criminally responsible might require balancing the destruction caused against legitimate military objectives. Goldman also served a term as president of the Organization of American States’ Inter-American Commission on Human Rights in 1999. ‘MASSIVE DESTRUCTION’ The legacy of the first Gulf War suggests that destruction of Iraq’s oil wells would have a strongly negative effect on the environment. In 1998, the International Green Cross, a Geneva-based environmental organization headed by former Soviet Union leader Mikhail Gorbachev, made an assessment of the damage to Kuwait left by Saddam Hussein when he was forced to withdraw his forces in 1991. According to Green Cross’ report, “There was massive destruction of oil wells, refineries, storage facilities, desalination/power plants, infrastructure, manufacturers. … The fires, resulting from the destruction of oil wells throughout Kuwait, produced an incredible cloud of darkness and pollution. The country, and then progressively the whole region, was covered by an oily film from the ever growing black cloud. Dark clouds blocked the sunlight for months, the air temperature … decreased by an average of 10 degrees centigrade and the water temperature of the sea decreased by several degrees.” Green Cross quantified the damage by noting that “60 million barrels of oil released in the desert formed 246 oil lakes covering a surface of 49 [square kilometers]; the smoke and soot contaminated 953 [square kilometers] of desert; the oil spill soiled 1,500 [kilometers] of the Gulf coast.” Even after a massive cleanup, Green Cross concluded, about 5 percent of the oil remained behind to pollute the desert and pose a risk of contaminating groundwater. Jose E. Alvarez, professor at Columbia University Law School and a former State Department official, believes that international law prohibits crimes such as pillage that might encompass Iraq’s destruction of its own resources. But, he added, even if that were not the case, Iraqi aggressors might still be made to pay after the fact. “After the last Gulf War, the U.N. Security Council passed Resolution 687 holding Iraq liable for any and all financial consequences of its invasion of Kuwait, including damage to the environment,” he said. Under the auspices of the U.N. compensation commission, he added, Iraq was still paying in the days before the launch of war last week. Although those payments are of a civil nature, Alvarez would not rule out the possibility that Iraqi despoilers could be held criminally responsible for acts committed while it was not subject to international law. For instance, it would not be beyond the pale of what the Security Council has done in the past to order Iraq to submit to the jurisdiction of the International Criminal Court. Furthermore, although the United States is not a signatory to the Rome statute creating the International Criminal Court, it could ask the Security Counsel to hand Iraqis accused of wrongdoing over to the court or convene its own tribunals to try them. Such prosecutions would not raise substantial concerns about ex post facto liability, Alvarez maintained, because Iraq has been on notice for many years that a repeat of the type of behavior it displayed during the first Gulf War would be treated as war crimes. TRIBUNALS’ FUTURE ROLE In public statements on the military commissions being convened to try Taliban and al-Qaida prisoners, the Bush administration has suggested that the tribunals may also be the forums for war crimes trials against Iraqis accused of war crimes. In draft guidelines issued last Month, the U.S. Department of Defense defined as crimes “attacking civilian objects” and “pillaging” and warned that “this document does not preclude trial for crimes that occurred prior to its effective date.”

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