JURIST - Paper Chase: Legality of burning oil wells

[JURIST] Iraq's oil wells are on fire - see the latest satellite images of oil wells at Rumailah, along the Iraq-Kuwait border, provided Monday by the United Nations Environment Programme. Could Iraqi soldiers and civilians torching Iraq's oil wells be tried for war crimes? The key provisions of international law affecting this question come from three instruments. Protocol 1 to the Geneva Conventions [text], adopted in 1977, says in Article 35 that "it is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the environment." Article 55 says:

1. Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population.
2. Attacks against the natural environment by way of reprisals are prohibited.

The 1977 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques [text], ratified by the United States in 1980, says in Article 1: "Each State Party to this Convention undertakes not to engage in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party." The 1998 Rome Statute [text] establishing the International Criminal Court includes in its definition of war crimes, under Article 8 Section 2(b)(iv): "Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated." Neither Iraq or the US are party to the Statute, however.

More from Gary Young, reporting for the National Law Journal.