February marked the 25th anniversary of the Gulf War’s end. The intensity and magnitude of the allied coalition’s offensive, followed by the systematic destruction of Kuwaiti oil wells by retreating Iraqi troops, led to an unprecedented environmental disaster. Yet within two months, and in a first for international armed conflict, a post-war claims and remediation mechanism ─ the United Nations Compensation Commission (UNCC) ─ was in place. Its aim was to not only help neighbouring states recover from the personal and financial losses inflicted during the war, but also to help repair the environmental damage caused. With protection for the environment in armed conflict under increasing scrutiny, it seems useful to re-examine how this mechanism worked.
Following the conflict, there was an expectation that reparations were due to neighbouring countries and Iraq’s oil revenues offered a ready source of finance. The UNCC was established and mandated to: “…process claims and pay compensation for losses and damage suffered as a direct result of Iraq’s unlawful invasion and occupation of Kuwait”. The 2.69 million claims it processed were categorised according to claimant and type of compensation sought. These ranged from individuals’ personal injury, deaths and financial losses, to costs incurred to neighbouring countries in housing refugees, to damage to businesses and governmental property. Last but not least, was the “F4” sub-category for “Environmental damage and depletion of natural resources”.
Using expert panels, the UNCC assessed 170 F4 claims from 12 States (Australia, Canada, Germany, Iran, Jordan, Kuwait, the Netherlands, Saudi Arabia, Syria, Turkey, UK and USA) and awarded US$5,261m ─ just 6.2% of that claimed ─ to 10 States in five instalments over as many years: the Dutch and Turkish claims were unsuccessful. Oversight of payments was strict, with regular reporting to establish that funds were used as specified. All payments have now been completed, although some projects will run until at least 2020.
Environmental Damage on a Massive Scale
The recognition of the F4 claims for remediation and restoration was unquestionably due to the highly visible environmental damage the conflict caused. Aside from the unexploded ordnance covering 3,500km2, the footprint of the 700,000 allied troops, and the effect of millions of Iraqi, Kuwaiti and other refugees relocating to Jordan, Iran, Turkey and Syria; Kuwait and its neighbours suffered from the unique impact of the calculated use of oil as a weapon of war.
More than 700 oil wells were blown up, with most igniting, burning 6m barrels per day for nearly ten months. Damaged oil wells spewed crude oil, forming lakes covering at least 50km2. Fallout from dispersing smoke plumes created a thick deposit known as tarcrete over 1,000km2 of Kuwait’s deserts. Meanwhile, 11m barrels of crude oil from storage units, sabotaged pipelines and oil tankers spilled into the Persian Gulf, damaging 800km of coastline. The impact of the oil on air and land quality, terrestrial and marine habitats and biodiversity was immediate, severe and long-lasting, damaging natural resources and threatening human health.
Putting a Price on the Environment
Placing a financial value on the environment is no easier than defining what the environment is. As they counted the cost, affected countries submitting UNCC claims were clear that economic, social, public health and biodiversity concerns were all linked to environmental quality. States not only wanted to reinstate pre-war environmental conditions in heavily polluted areas, they also wanted to address the damage to land and natural resources, and the footprints of the military and refugees. Concerned about the health implications for their populations from pollution, they also sought acknowledgment of the risks, and funds for health monitoring.
The difficulty in assessing the monetary value of the damage was evident throughout the process. Both Iraq and the UNCC demanded that claims be supported by precise estimates, detailed costs and clear scientific evidence. The difficulties this presented, in the absence of an agreed framework to quantify damage, and debates over the quantity and quality of evidence, led to 94% of claims being dismissed.
The bulk of the claims from Jordan, Iran, Kuwait and Saudi Arabia related to either oil spills or damage from oil well fires. Because of the visibility and immediacy of the damage, and the necessity for data gathering, monitoring and assessment claims were often upheld and remediation claims, which were reviewed later in the process, were considered favourably. Nevertheless the remediation costs, area calculations and baseline comparisons of pre-war environmental conditions were still debated and individually re-negotiated by the UNCC’s experts.
Claims for the degradation of natural resources such as groundwater, and the loss or damage of habitats due to population displacement proved less successful. This was partly due to the difficulties in quantifying the harm caused, and the uncertainty in assessing refugee numbers and their collective behaviour. The few non-regional States’ claims related to technical and expert services provided to Kuwait and its neighbours; these were just as hotly debated as other claims.
Claims linking the oil fires to human health risks considered the financial impact of long-term health problems and the additional deaths expected due to inhalation of the fires’ toxic fumes. However, due to the difficulty in meeting the evidentiary standard requiring harms to be the “the direct result of the invasion and occupation” these proved unsuccessful. Health monitoring and assessment projects were awarded funds, although the expert panels contested the methodologies and models they used to assess exposure, morbidity and mortality in Kuwait and Iran. Similarly, other claims relating to the impact of airborne particulates on land and heritage sites, including virtually all Syrian claims under “Transport and Dispersion of Air Pollution”, were also unsuccessful.
Post-war Remediation and Restoration are Still Incomplete
Although capping the oil wells took only nine months, damage has proved long-lasting. The varied composition of soils caused different contamination problems. Wet oil, dry oil and solid tarcrete remained depending on absorption levels, length and severity of exposure. Oil spills covered coastlines and invaded mudflats, killing wildlife and transforming habitats. Remediation was highly specialised, often complicated by weather and the saline conditions, and necessitated preliminary monitoring and assessment work. The technologies and remediation techniques used varied, including chemical oxidation, soil washing, tilling in mudflats, soil excavation, transportation, landfills and thermal treatment.
The necessary assessments slowed the claims process; Kuwait was still processing and awarding tender applications in 2013. Often, delays led to natural environmental changes in habitats, for example the colonisation of coastlines by algal mats, preventing their return to pre-war conditions. Such changes led to questions over what constituted successful remediation for these degraded and altered habitats, especially when remediation had not been initiated by the affected States prior to claims being filed – for instance Saudi Arabia’s duty to prevent and mitigate environmental damage was examined.
Recognising the long-term and technical nature of environmental remediation work, the UNCC mandated further monitoring until 2013 through the Follow-up Programme for Environmental Awards – now completed and wound up. Some national projects are still underway, relating to ordnance removal, the damage and stresses caused by refugee settlements and military camps and health monitoring. Other long-term works, including irrigation improvements, livestock management, soil improvements, re-vegetation, marine reserves, saltmarsh clear-up, wildlife re-introduction and protection continue in Iran, Jordan, Kuwait and Saudi Arabia.
Learning from the UNCC
That the UNCC process included the F4 environmental damage category at all was a step in the right direction, setting a precedent and demonstrating the importance of post-conflict environmental restoration. Although influenced by well-established peacetime environmental norms, the UNCC claims and awards process had limitations. But could its lessons be developed for environmental restoration after future conflicts?
One starting point would be to develop a common legal definition of the environment, derived from environmental and humanitarian principles. This could be used to help frame the necessity of preventing harm, and ensuring environmental restoration. Complementing this with a common framework for damage assessment could accelerate recovery and reduce harm by avoiding further damage resulting from delays in remediation. The framework would need to be developed as part of a post-conflict environmental mechanism, with claims and operations processed through an independent institution with a clear mandate.
To be successful, monitoring and clean-up operations should neither be dependent on the affected State’s finances, nor limited to post-conflict reparations. Ideally an international fund would be established and made available, not only to support public and environmental health monitoring throughout the conflict cycle, but also to ensure that urgent remediation and clean-up operations begin quickly.
Another lesson from the UNCC is that it is essential to go beyond the purely financial implications of damage and loss. A more comprehensive approach would also consider the direct and indirect consequences of environmental damage, linking environmental health with humanitarian protection, promoting ongoing health monitoring and re-instating post-war environmental governance.
Most of the UNCC decision-making process was not public, when instead it should have been accessible and transparent. “Non-claimant states, civil society and the media had no access at all. The panel’s proceedings were not open to public scrutiny”. Today such opacity would run counter to the principles of the Aarhus Convention on access to information and participation in environmental decision-making, and act as a barrier to external scrutiny.
In spite of the UNCC, and the precedent that it set, the fact that 25 years on the environmental legacy of the Gulf War has still not been fully addressed is a stark reminder of the long-term impact that wartime environmental damage can have. Armed conflict not only degrades the natural environment and damages human health, it also harms environmental governance. While the UNCC model may not be applicable to all conflicts, its lessons highlight serious limitations in how the international community currently responds to the environmental consequences of conflict: limitations that must be addressed in the growing debate on strengthening the protection of the environment from the impact and legacy of armed conflict.
Laurence Menhinick is a research assistant with the Toxic Remnants of War Project, which studies the humanitarian and environmental impact of conflict pollution. The Project is a founding member of the Toxic Remnants of War Network, which advocates for a greater standard of environmental protection in armed conflict: @TRWNetwork. The author thanks Prof. Cymie Payne for her clarifications for this article.
 De Silva, A. L. M. (2014), Conflict Related Environmental Claims – A Critical Analysis of the UN Compensation Commission, Faculty of Law, University of Sydney, Australia p70 http://ses.library.usyd.edu.au/handle/2123/10426