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CONFLICT-ENVIRONMENT: Questions Over Accountability in Kosovo

IPS 11 November 1999

WASHINGTON, Nov. 11 (IPS) - Nearly six months after the end of the NATO air campaign against Serbia over the future of Kosovo, legal experts are divided on who can be held accountable for the widespread environmental damage to the former Yugoslavia.

A UN-led Balkans Task Force concluded last month that the conflict over Kosovo did not cause an environmental catastrophe affecting the Balkans region as a whole but pollution in four Serbian towns - Pancevo, Kragujevac, Novi Sad and Bor is ''serious and poses a threat to human health.''

For example NATO planes severely damaged a huge oil refinery and petrochemical complex in industrial Pancevo, located 20 km northeast of Belgrade.

''Urgent remedial action" is needed to attend to a waste water canal flowing into the Danube and is ''seriously contaminated with dichloroethane and mercury,'' says a report by the UN Environment Program and the UN Centre for Human Settlements.

The also calls for immediate steps to clean-up contamination from the release of the toxic chemicals PCB and dioxin at a bombed car plant in Krugujevac.

But the question of who will provide the ''urgent remedical action'' remains unanswered as does the question of whether the North Atlantic Treaty Organisation (NATO) should be held responsible for the clean-up if is found in violation of international laws.

Lawyers also cannot agree if there a better way to seek funds for cleaning up the environment in former Yugoslavia.

Jay E. Austin, senior attorney at the Washington-based Environmental Law Institute is doubtful that the NATO would be held accountable.

''Due to the United States' political clout and that it is the lone super-power, there will unlikely be any legal resolution of these issues,'' he says.

Several international agreements exist relating to environmental destruction resulting from conflict, he explains.

Protocol I of the Geneva Convention of 1997 and the Environmental Modification Convention were added to the list of international war laws dating back to 1868, in order to prevent environmental destruction as a weapon of war.

The protocol outlaws ''methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.''

These treaties, however, are difficult to apply in practice because many of the terms - such as ''long-term'' and ''widespread'' - are not defined by the treaties, Austin says.

Furthermore, he says, these treaties do not have their own enforcement mechanisms.

The case of Pancevo - where NATO forces knew they what they were bombing - ''could be an outright breach of Protocol I norms,'' says Austin.

Despite the UN findings ''factually, the jury is still out'' on whether Protocol I was violated since the meaning of ''long-term'' under Protocol I is very vague, he says.

''Pancevo shows, if nothing else, that the current norms (under Protocol I) are very malleable,'' Austin says. ''Who knows until 20 years after the epidemiology has been done whether this really had an impact on environment and public health.''

While the treaties governing war have no enforcement mechanisms, several recently created international courts and tribunals could be used to hold countries accountable for violating treaties like Protocol I, says Austin.

The creation of the International Criminal Court (ICC), intended to be the permanent international forum for prosecuting war crimes, represents the first attempt at a permanent institution with authority to interpret and enforce post- Vietnam War law concerning war and the environment, he says.

While emphasizing genocide and atrocities committed against combatants and civilians, the charter that set up the ICC, known as the Rome Statute, also makes it a crime to intentionally cause ''widespread, long-term, and severe damage to the natural environment'' that is not justified by military advantage.

''This provision largely escaped notice amid the larger debate about creation of the court and the scope of its jurisdiction,'' says a report, co-authored by Austin, called 'The Greening of Warfare.'

The same provision ''could become an important tool for deterring and punishing wanton environmental destruction during wartime,'' the report says. But it recalls that the world's foremost military power, the United States, was one of only seven nations to vote against the charter.

Another forum, the UN Compensation Commission (UNCC) - created by the international tribunal to hear claims against Iraq arising from the Gulf War - could be used to assess claims of environmental damage caused by conflict, says Austin.

Under a Security Council resolution, Iraq was declared liable for any damages caused by the allied forces in driving out the occupying armies.

With liability presumed, the UNCC is now focused exclusively on assessing the amount of damages. Monetary compensation will come from a fund, set up by the Commission, which receives 30 percent of the proceeds from UN-sanctioned Iraqi oil sales, as well as a portion of Iraq's frozen international assets.

Kuwait has filed most of the environmental claims, including claims for damage relating to the pollution of ground water and marine resources and the formation of "oil lakes" in the desert. The UNCC is expected to rule on the claims within the next 12 months.

Austin adds that it is unlikely that the United Nations can set up such a commission regarding environmental destruction in Yugoslavia since the United States has the power of veto in the Security Council.

''For political reasons that sort of model is improbable at best,'' he says.

Yugoslavia did try to file a case against NATO in the International Court of Justice for damages to property, civilians and the environment but it was thrown out on procedural grounds, since the United States has not agreed to the court's jurisdiction.

Given all of these problems and how long it takes to find liability and fault and locate the money to pay the damage claims, Austin says the international community needs to pull together to create some kind of emergency fund that would remedy environmental damage caused by military conflict.

Last year, at an international conference on the environmental consequences of war, held in Washington, former Soviet president Mikhail Gorbachev called for the creation of a ''new international emergency fund'' to respond quickly to environmental disasters, as well as those caused by combat.

Austin has proposed another fund, similar to the ''Superfund'' established by the US Environmental Protection Agency, that would hold governments liable for damage during war-time.

It could be funded, he says, by a tax put on nations that sign the treaty or on taxes on private parties such as arms manufacturers, he says. (END/IPS/dk/mk/99).

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