33 ELR 10668 | Environmental Law Reporter | copyright © 2003 | All rights reserved
Environmental Damage Resulting From Operation Enduring Freedom: Violations of International Law?Robert M. Augst
The author is a student at the University of San Diego School of Law, class of 2004. He thanks Prof. Jorge Vargas and Michael Grehl for their insight, and his family for their support.
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One of the many devastating, and often overlooked, effects of armed conflict is impact on the environment. An inevitable casualty of military conflict is destruction of land, water, air, and other natural resources. "Since time immemorial, war has visited its excesses on nature, excesses that many fear the Earth can no longer tolerate."1 Throughout history, excessive damage to the environment during armed conflicts has caused devastating human suffering and death, thus threatening human survival.2 However, application of existing international laws governing the methods and means of warfare can help minimize detrimental impacts on the environment, global economic interests, and overt human suffering.
Modern warfare's ability to destroy nature has become increasingly formidable, as "twentieth century technology has brought forth possible destructive forces of unprecedented virulence."3 One commentator, reflecting on the increasing threat of environmental destruction during modern wars, noted that "a curious irony of modern war is that in future armed conflicts, combat casualties may be fewer than those occurring from environmental catastrophe. The majority of likely casualties from a wartime environmental catastrophe are noncombatants, the very persons humanitarian law has long sought to protect."4
Conventional weapons comprise the primary means of warfare utilized in armed conflicts. Modern conventional weapons have the capacity to threaten expansive areas, thus increasing potential threats to the environment.5 The consistently increasing tonnage of bombs being dropped in modern wars brings with it an increased potential to devastate the natural environment.6
In response to these threats, numerous international conventions have been created to protect the environment during armed conflicts. Application of customary principles of war may provide additional environmental protection during armed conflicts.
Legal Framework Governing Protection of the Environment During Armed Conflicts
Article 93 of the Charter of the United Nations provides that "all Members of the United Nations are facto parties to the Statute of the International Court of Justice [(ICJ)]."7 The Statute of the ICJ provides that in deciding disputes, the ICJ shall apply: (1) international conventions; (2) international custom, as evidence of a general practice accepted as law; (3) the general principles of law recognized by civilized nations; and (4) judicial decisions and the teachings of highly qualified publicists as subsidiary means for determination of rules of law.8 Customary international law governing armed conflicts is primarily based on four principles: humanity, military necessity, proportionality, and discrimination.9
One international convention that provides for protection of the environment during armed conflicts is Additional [33 ELR 10669] Protocol I to the 1949 Geneva Conventions. Protocol I has not been ratified by the United States; however, the United States has officially cited adherence to the provisions regarding environmental protection as a customary principle of international law, and therefore Protocol I will be binding on U.S. conduct during armed conflicts.10
Did the United States Violate International Laws Protecting the Environment During Operation Enduring Freedom?
The consensus among most commentators is that the United States was justified in its decision to attack Afghanistan. This Article does not focus on the legality of Operation Enduring Freedom (jus ad bellum), but rather on the legality of the conduct employed by the United States during Operation Enduring Freedom (jus in bello). The United States had a legal right to remove the security threat posed by the Taliban and Al Qaeda. However, questions remain as to the legality of the methods/means of warfare employed by the United States, and whether alternative military strategies could have secured victory at a significantly reduced cost in terms of environmental and humanitarian damage.11
This Article will examine whether the methods and means of warfare employed by the United States in Operation Enduring Freedom violated international law. Three specific methods/means of warfare employed by the United States in Afghanistan raise serious questions as to their legality: (1) the use of cluster bombs; (2) possible use of depleted uranium (DU) munitions; and (3) targeting sites with potential to cause environmental damage.
In order to properly assess the impacts that U.S. attacks have had on Afghanistan's environment, it is important to understand the context in which these incidents took place. Prior to the U.S. invasion, Afghanistan's environment was in a state of crisis, characterized by an extreme lack of safe drinking water, soil degradation, overgrazing, desertification, rapidly depleting forests and woodlands, lack of sanitation and proper waste management practices, and diminishing natural wildlife.12 These problems were exacerbated by four years of severe drought. As noted by Pekka Haavisto, chairman of the United Nations (U.N.) Environment Program (UNEP) Afghanistan Task Force, "during almost 30 years of conflict, Afghanistan's environment has been heavily damaged by military activities, refugee movements, the overexploitation of natural resources, and a lack of management and institutional capacity."13 It is within this environmental context that the United States pursued Operation Enduring Freedom.
Did U.S. Use of Cluster Bombs in Afghanistan Violate International Law?
One form of conventional weaponry utilized by the United States in Afghanistan was cluster bomb units (CBUs). "A [CBU] consists of a great number of small, but extraordinarily powerful bombs [bomblets], contained within a large canister or dispenser.14 The CBU-87 is the one most commonly utilized by the United States.15 Each CBU-87 contains 202 individual submunitions, also called "bomblets."16
Cluster bombs are classified as "area weapons" because a single CBU dispenser can spread its bomblets over a large area.17 The bomblets from each CBU-87 are typically distributed over an area roughly 100 x 50 meters.18 The CBU-87s are formally known as combined effects munitions (CEM) because each bomblet has an antitank and antipersonnel effect, as well as an incendiary capability. The manufacturer of the CBU-87 claims a dud rate of 5%,19 although the actual initial failure rate for CBU-87 bomblets is commonly estimated to be 7%.20
Dangers Posed by Cluster Bombs
The use of cluster bombs in military conflicts poses extreme threats to the environment and civilians. Cluster bombs have proven to be a serious and long-lasting threat to civilians, soldiers, peacekeepers, and clearance experts because of the high initial failure rate of the bomblets, the large number typically dispersed over large areas, and the difficulty in precisely targeting the bomblets.21 When the bomblets do not explode on impact, they end up scattered on the ground waiting for something or someone to detonate them.22 Factors that may cause an unexploded bomblet to detonate are vibrations, radio frequencies, extreme temperatures, or slight changes in temperature.23
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There has been increasing concern, inside and outside the U.S. Department of Defense (DOD), about the impacts of DOD's munitions-related programs on the environment.24 As noted in a DOD study on unexploded ordnance:
DOD lacks adequate, readily accessible data on munitions usage, the associated environmental emissions from its use, and for the ultimate fate, transport mechanisms, and toxicological characteristics of residual constituents. This data gap results in significant uncertainties regarding the short and long-term environmental impacts of our munitions operations and affects our ability to control or mitigate any potential negative effects.25
One of the most serious problems associated with the use of cluster bombs is their relatively high initial failure rate. During Operation Desert Storm, at least 25 U.S. military personnel were killed by unexploded cluster bomblets initially fired by Coalition forces.26 Compounding the problems caused by the high initial dud rate is the fact that the bomblets often hit the earth with such a velocity that they sink into the ground a few inches, making them undetectable to the eye.27 "Unlike most American mines, cluster bomblets are not designed to break down over time, as this would raise their low cost."28
Cluster bombs, because of their high initial dud rate, their ability to blanket huge areas, and their potential inaccuracy, can devastate the environment in areas in which they are used. They deny access to farm and grazing land, pose a danger to livestock, impede access to shelter and water, and delay rehabilitation of essential infrastructure such as roads, bridges, and irrigation systems that are critical to a viable national economy. Even when cluster bombs do not actually destroy a specific parcel of land, they still drastically hinder the utilization of lands in regions in which they have been employed.29 "By posing a risk of gruesome wounds or death, dud cluster bombs prevent some farmers from cultivating fields, and other civilians from walking in certain parts of their land or using certain parks."30 "Thirty-five bomblets spread across the agricultural and grazing land of a subsistence community could effectively destroy its future and force it to abandon its homes and land."31
Another example of how cluster bombs have impacted the natural environment during war was during the North Atlantic Treaty Organization (NATO) intervention in Yugoslavia. NATO planes that routinely flew over the Adriatic Sea would jettison cluster bombs into the sea when they were running low on fuel or having mechanical difficulties. Shortly thereafter, Italian fisherman began finding cluster bomblets in their nets, and on one occasion a bomblet exploded in a fishing vessel.32 The owner of the Italian fishing boat reiterated the sentiments of many concerned with the use of cluster bombs: "I doubt they will be able to recover all these little cluster bombs. It will be a danger to us for years and years."33
Cluster Bombs in Afghanistan
During Operation Enduring Freedom, the United States conducted at least 103 cluster bomb strikes over Afghanistan, dropping 1,210 CBU-87 dispensers totaling 244,420 cluster bomblets.34 The Pentagon itself apparently is claiming a 10% dud rate for cluster bombs dropped over Afghanistan, which would mean at least 24,442 unexploded cluster bomblets on the ground.35 From October 2001 through November 2002, at least 127 civilians as well as two de-miners were killed or injured by cluster bombs in Afghanistan.36
The high level of inaccuracy associated with cluster bombs has led to unexploded bomblets covering Afghanistan's roads, villages, irrigation canals, and agricultural land.37 Common victims of these unexploded cluster bombs have been shepherds grazing their flocks and farmers plowing their fields.38 Damage to Afghanistan's agricultural [33 ELR 10671] sector is particularly taxing, considering the fact that agriculture composes 60% of Afghanistan's gross domestic product.
The United Nations has stated that following CBU attacks in areas surrounding the western Afghanistan city of Herat, 70% of the region's population of one million fled in fear.39 Such mass migrations exemplify the types of secondary effects CBUs can have. Mass migrations present the risks of serious infectious disease outbreaks, malnutrition, and starvation.40 Although U.S. cluster bomb attacks were not the sole cause of the refugee crisis in Afghanistan, they have exacerbated the problem. The U.S. attacks increased the number of internally displaced persons by approximately 360,000 and prompted 200,000 others to flee to neighboring countries.41 Reports from refuge camps inside Afghanistan suggest that as many as 2,500 people died (out of a total camp population in excess of 400,000) from starvation, exposure, and associated illness during a four-month period.42
Another problem the use of cluster bombs in Afghanistan posed was their tendency to disproportionately kill or maim children. The bomblets dispersed by the CBU-87 are bright yellow, the size of a soda can, with a small parachute on the top.43 Occasionally, children have confused these unexploded bomblets for toys, which has lead to a disproportionate number being killed or injured.44 Additionally, the bomblets were confused with food aid parcels that also were dispersed by aircraft. A key U.N. clearance expert noted that the bomblets and the food packets are both small and yellow, and that while citizens were encouraged to pick up the food parcels, touching a bomblet would be lethal.45
Cluster Bombs in Afghanistan: A Violation of International Law?
In order to determine whether the use of cluster bombs in Afghanistan violated international laws of war it is first necessary to evaluate justifications and the anticipated military advantages gained by the United States through their use. As noted by U.S. Gen. Richard Myers, chairman of the Joint Chiefs of Staff: "The strategy by using any weapons system is to have the maximum effect you can on the targets you're going after."46
When questioned about criticisms of U.S. use of cluster bombs in Afghanistan, General Myers defended the military's action:
This is very simple. On September 11th , we lost over 5,000 innocents to an intentional act. We are prosecuting now a global war on terrorism. We are trying to be very careful in the way we plan this particular conflict. Probably only the United States and its allies could do it in such a way that we minimize civilian casualties. If we match up a specific weapon to a specific target and we make the judgment that it's in accordance with the law of armed conflict, and we've worked this very, very carefully, then we'll use that weapon. In some cases, that means cluster bombs. And we understand the impact of those. I would take you back to September 11th. We also understand the impact of that.47
Defense Secretary Donald Rumsfeld added to General Myers' response, declaring that "they [the cluster bombs] are being used on front-line Al Qaeda and Taliban troops to try to kill them, is why we're using them, to be perfectly blunt."48 On another occasion Adm. John Shufflebeem was asked: "How are targets for those cluster bombs selected?"49 He responded: "Cluster munitions are most effective against troops that are in lightly defended positions. So the place to best use them is in an area that would have minimal collateral damage impact and maximum numbers of forces that you would wish to kill."50
General Myers replied to questions concerning the problem posed by unexploded cluster bomblets in bright yellow wrappers resembling the food packets that also were contained in bright yellow wrappers.51 He stated that
it is unfortunate that the cluster bombs, the unexploded ones are the same color as the food packets. We have dropped fliers that show the pictures and the proper language explaining why you want to go to one and you don't want to go to the other. We hope that helps. Another thing we're doing is with the food packets is changing the color of their design. We're going to—I think it's going to be blue. It obviously will take some time…. They were probably yellow because they were very visible and people could see them lying around. The same for the cluster bombs. Unfortunately, they get used to running to yellow. So—.52
The U.S. use of cluster bombs in Afghanistan will not likely be held a violation of the customary principle of "military necessity." The customary international law of military necessity prohibits destructive or harmful acts unnecessary to secure the complete or partial submission of the enemy.53 One criticism of the principle is that "states want to maintain [33 ELR 10672] military capability that they believe essential to their defense, at least until a new capability becomes available."54 In practice, what is militarily necessary has been subjectively defined in wartime.55 Nations commonly assert that a given action was militarily necessary—which is difficult to disprove in hindsight. As a result, much discretion is given to nations in evaluating whether a particular method/means of warfare was militarily necessary.
The United States has justified the use of cluster bombs in Afghanistan based on their perceived effectiveness and the need to disperse submunitions over large areas containing Al Qaeda and Taliban targets.56 Al Qaeda and Taliban personnel were legitimate military targets. The use of cluster bombs increases the radius of destructive effect over a target, thereby increasing the potential destruction. The total destruction of targets consisting of front-line Al Qaeda and Taliban troops was arguably militarily necessary, and as discussed above, much deference will be given to the United States on this matter.
The principle of proportionality requires the use of force to be proportionate to the value of the particular military objective being sought.57 The concept of proportionality requires a balancing of interests: military against humanitarian.58 A particular weapon, such as cluster bombs, may pass as "proportional" in one context, but the same action may have clearly disproportionate impacts on environmental and humanitarian interests in another.59
In order to evaluate whether U.S. use of cluster bombs violated the principle of proportionality, it is necessary to weigh the asserted military advantages gained by their use (discussed above) against any negative impacts their use has had on environmental or humanitarian interests. Although this Article concentrates on environmental interests, they are inextricably tied to humanitarian interests.
Under ideal conditions the use of cluster bombs in Afghanistan to target Al Qaeda and Taliban personnel would not violate the principle of proportionality. Unfortunately, cluster bombs are not ideal weapons, and their high initial dud rate combined with their inaccuracies led to potentially negative consequences in the areas in which they were used. This is illustrated by the estimated 24,442 unexploded cluster bomblets across Afghanistan's roads, residential areas, irrigation canals, and agricultural land.60
In Afghanistan, cluster bombs were admittedly employed against "soft targets" such as personnel, rather than against "hard targets" such as tanks. Their use against hard targets is more likely to be accepted as proportional because they provide a needed ability to penetrate armored targets.61 When cluster bombs are used against soft targets they have an increased initial dud rate, as well as an increased chance of penetrating the surface and remaining hidden from site. Some commentators believe that the snow, sand, and mud in Afghanistan make it even more likely that the bomblets are not exploding.62
The potential for cluster bombs to deter civilians from cultivating their agricultural lands has been realized in Afghanistan. As expressed by Abdul Rahman: "If we don't work in the fields or do not graze our animals, how can we live? We can't just sit at home and do nothing."63 The fear of encountering unexploded cluster bombs in agricultural fields has lead to an increase in mass migrations and refuge numbers, which entail severe environmental and health consequences.
The difficulty in the application of "proportionality" lies in weighing the interests, through a subjective valuation of military, environmental, and humanitarian concerns.64 It is clear that the use of cluster bombs in Afghanistan has had significant impacts on the environment and civilian populations. However, it is also beyond dispute that their use did accomplish cognizable military advantages. The difficulty lies in weighing the damage to Afghanistan's agricultural land, water supplies, roads, residential areas, and civilian population against legitimate military objectives, such as securing military targets, or minimizing a commander's casualties.65
The complex evaluation of humanitarian/environmental versus military interests is compounded when the international scope of the issue is taken into account. Naturally, value paradigms vary among different cultures.66 One may argue that the diminished state of Afghanistan's environment prior to the U.S. attacks demonstrated a low valuation [33 ELR 10673] placed on environmental quality by Afghans, thus lowering the weight to be given to the extent of ecological destruction. Conversely, it can also be argued that the delicate condition of Afghanistan's environment prior to the attacks warranted increased care in order to avoid additional negative impacts that might be caused by cluster bombs.
The principle of proportionality will likely be of limited use in an evaluation of whether the employment of cluster bombs in Afghanistan violated international law. There is no definitive answer to this question in a situation in which there are considerable legitimate interests on both sides of the equation (military versus environmental/humanitarian). The answer to this question lies in how one subjectively values these two interests.
The use of cluster bombs in Afghanistan did violate the principle of "discrimination." The principle of discrimination embodies the concept that to be lawful, weapons and tactics must clearly distinguish between military and nonmilitary targets, and be confined in their application to solely military targets.67 One limitation on methods of combat that derives from the principle of discrimination is the prohibition on the use of indiscriminate weapons.68
In Afghanistan, the 24,442 unexploded bomblets scattered across the land did not and cannot discriminate between military and nonmilitary targets. As noted by Amnesty International: "Cluster bombs present a high risk of violating the prohibition of indiscriminate attacks, because of the wide area covered by the numerous bomblets released."69
The European Parliament recently passed a resolution addressing the harmful effects of unexploded ordnance (landmines and cluster submunitions).70 Nicole Fontaine, president of the Parliament, condemned U.S. use of cluster bombs in Afghanistan.71 While she agreed that the "operations launched by the United States in Afghanistan following the appalling attacks of 11th of September were both legitimate and necessary," she called on the United States to refrain from any further use of cluster bombs.72 President Fontaine's condemnation of the use of cluster bombs in Afghanistan was based on her sentiment that "when wars are over and the world's attention is directed elsewhere, they [cluster bombs] continue to poison entire regions for years, as is the case in Cambodia, Angola, and Somalia where the lives of children at play and men and women working in their fields are under threat of death on a daily basis. This is what is morally unacceptable and must be banned."73 President Fontaine also noted the striking similarities between cluster bombs and anti-personnel mines, which have been banned by the whole of Europe and many other countries through the Ottawa Treaty.74
As stated by Secretary Rumsfeld, the intended objectives of cluster bombs were to kill front-line Al Qaeda and Taliban troops. However, once a CBU is dropped, and the 202 bomblets with a known initial dud rate estimated at 10% disperse, the unexploded bomblets are unable to discriminate between military and nonmilitary targets. They cannot be, and as discussed above, have not been confined to military targets.
This inability to discriminate has been compounded by the fact that the bomblets were the same color (yellow) and possessed similar dimensions as food packets. As conceded by General Myers' statement regarding this apparent mixup, "unfortunately, they get used to running to yellow."75 The matter should have been addressed and the potential for confusion reduced through a change in coloration after the Kosovo conflict, where the same problem presented itself. A reporter pressed General Myers on this issue, asking: "Didn't you run into that problem in Kosovo, then? I mean, you did use cluster bombs and you did distribute HDRs and they were the same color then. Why is this only now being addressed?"76 General Myers responded: "I'd have to research that. I don't know. I wasn't—I'm not aware of that."77
Defenders of the cluster bomb argue that unexploded bomblets are no different than other types of unexploded ordnance, which is an inherent problem for all types of military ordnance.78 However, cluster bombs are unique in their potential devastation on the environment and civilians. As one commenter noted:
The foreseeably high dud rate, the small size of the cluster bomblets, their ability to hide themselves in the mud, water and undergrowth, the extreme sensitivity of their fuses, their attractiveness to children, their extraordinarily powerful destructive effects despite their size, all put the dud cluster bomb in another category as compared to most other unexploded ordnance.79
In justifying the use of cluster bombs, General Myers stated that "we understand the impact of those [cluster bombs]. I would take you back to September 11th. We also understand the impact of that."80 However, the fact that a horrible atrocity was committed against the United States has nothing to do with the legality of the use of cluster [33 ELR 10674] bombs in Afghanistan. The catastrophic terrorist attack committed against the United States does not give the United States a right to employ weapons in a fashion that violates international law, such as the prohibition against indiscriminate attacks.
The use of cluster bombs by the United States during Operation Enduring Freedom was a violation of the customary principle against indiscriminate attacks. Their impacts on Afghanistan's agricultural and grazing lands, Afghan civilians, and Afghan infrastructure have shown that they were used in a manner that violated the prohibition on indiscriminate attacks.
Additional Protocol I, Article 35(2)
Article 35(2) states: "It is prohibited to employ weapons, projectiles, and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering."81 The term "unnecessary suffering" implies a balancing of the military advantage gained by the weapon in question (cluster bombs) with the degree and intensity of suffering imposed by their use.82
As discussed above, the primary manifestations of suffering caused by the use of cluster bombs in Afghanistan were their destruction of agricultural and grazing lands, mass migrations among Afghan civilian populations partially spurred by unexploded cluster bomblets littered about lands and villages, the severity of wounds and a high mortality rate, their disproportionate impact on Afghan children, and their being confused with food packets. Physicians who have treated cluster bomb injuries to civilians report never before having had to treat such horrific wounds.83 Because the shrapnel from cluster bomblets is so small—30 grains—it is extremely difficult to remove.84 Each bomblet is designed to penetrate seven inches of armor, so when civilians come in contact with unexploded cluster bomblets they clearly will suffer grave injuries, if not death.85
The primary military advantage gained by the use of cluster bombs in Afghanistan was their ability to blanket large areas containing Taliban and Al Qaeda targets. Another advantage of cluster bombs was their potential to minimize risk to U.S. aircrews by allowing a crew to strike a target with a single sortie rather than having to fly multiple aircraft over the same target a number of times.86 Minimization of risk to U.S. soldiers is a legitimate military objective; however, this objective must be balanced by an acknowledgement of the responsibility to protect civilians, even if this requires exposing U.S. soldiers to higher levels of danger.87
It has been argued that cluster bombs may actually reduce collateral damage, because in their absence air forces would use more high explosive ordnance with a greater risk of collateral damage in case a weapon missed its target.88 However, this argument ignores the primary type of unnecessary suffering caused by cluster bombs—the unexploded bomblets. It is true that the initial suffering caused by cluster bombs may be less than if other high explosive ordnance were used. However, much of the suffering imposed by cluster bombs occurs long after the initial attacks, as they render lands useless, and kill and maim civilians.
One defense against charges that cluster bombs "cause superfluous injury or unnecessary suffering" is that there is no international ban on their use.89 Conceivably, cluster bombs could be used in a manner that does not "cause superfluous injury or unnecessary suffering," thus supporting the absence of a total ban against their use. However, the lack of a ban on cluster bombs does not mean that they do not have the potential to "cause superfluous injury or unnecessary suffering" in a specific context, if used in an inappropriate manner. The defense that there is no total ban on their use fails to acknowledge that different conflicts will have differences in military advantages gained by cluster bombs, and different levels of suffering caused by their use.
Another defense against charges that cluster bombs "cause superfluous injury or unnecessary suffering" is that the recent proliferation and production of cluster munitions legitimizes them.90 However, like the above defense, this fails to acknowledge the variations among the conflicts in which they are used. Just because a weapon, such as cluster bombs, is continually produced and utilized does not mean that it cannot be used in a manner that may "cause superfluous injury or unnecessary suffering."
As was the case in the above discussion of "proportionality," it is difficult to arrive at a conclusive answer to the question of whether the use of cluster bombs in Afghanistan caused "superfluous injury or unnecessary suffering." Like application of the doctrine of proportionality, the evaluation is inherently subjective and depends on how one values humanitarian concerns against military objectives.
Additional Protocol I, Article 55(1)
Article 55(1) protects against methods and means of warfare intended or expected to cause "widespread, long-term, and severe damage" to the natural environment.91 Damage to Afghanistan's environment caused by U.S. use of cluster bombs likely will not be held a violation of Article 55.
The language "intended or may be expected to cause such damage" suggests that the requisite mental state applicable is an objective standard of the level of environmental damage [33 ELR 10675] reasonable military personnel would expect.92 The environmental damage resulting from the use of cluster bombs in Afghanistan likely may have been expected. Following previous uses of cluster bombs in Bosnia, Iraq, and Kosovo, U.S. military commanders were aware of the damage these weapons posed to the natural environment and to civilians. During Operation Deliberate Force in Bosnia in 1995, air combat commander Maj. Gen. Michael Ryan (later U.S. Air Force Chief of Staff) decided to prohibit the use of cluster bombs, in recognition of their inherent danger to civilians.93 According to an Air Force sponsored study, "the problem was that the fragmentation pattern was too large to sufficiently limit collateral damage, and there was also the further problem of potential unexploded ordnance."94 Again, during Operation Allied Force in Yugoslavia in 1999, the White House prohibited further use of CBU-87s until technical adjustments could be made following a bomb malfunction incident.95 It appears likely that U.S. officials had notice of the environmental damage caused by these weapons, and could have expected such damage to result in Afghanistan.
Another requirement for a violation of Article 55(1) is that the damage to the environment must meet the threshold of "widespread, long-term, and severe." Although the standard prohibiting "widespread, long-term, and severe damage" may appear strict, there are limitations imposed by its language that present serious obstacles to its application.
"Widespread" under Article 55 has been interpreted as "on the scale of several hundred square kilometers."96 The environmental damage in Afghanistan caused by cluster bombs could satisfy this definition in that the cumulative areas affected by the 24,442 unexploded cluster bombs add up to several hundred square kilometers.
"Long-term" damage was considered by the negotiators of the treaty to mean several decades.97 Some degree of environmental damage caused by the unexploded cluster bombs will most likely linger for several decades, as required to satisfy the "long-term" requirement.
"Severe" under Article 55 has been interpreted as "involving serious or significant disruption or harm to human life, natural or economic resources or other assets."98 As discussed above, the approximately 24,442 unexploded cluster bomblets littered across Afghanistan involve serious and significant disruption or harm to the natural environment, human life, and economic resources.
The use of the word "and" in the phrase "widespread, long-term, and severe" creates, however, a formidable barrier to the application of Article 55. All three of the criteria must be simultaneously satisfied in order for Article 55 to be applied to the environmental damage at issue. In Afghanistan, by the time the threshold standard of "long-term" is met (several decades), the environmental damage will no longer be both widespread and severe. Several decades from now mine clearance efforts currently being conducted by the United Nations, the International Committee of the Red Cross (ICRC), and other organizations likely will have significantly diminished the damage caused by cluster bombs in Afghanistan so that they no longer constitute "widespread and severe" damage as the terms are used under Article 55.
It appears that the damage done to Afghanistan's natural environment by cluster bombs will not be "long-term, widespread, and severe" as the standard is currently interpreted; accordingly, the use of cluster bombs in Afghanistan did not constitute a violation of Article 55.
Did Possible U.S. Use of DU Munitions in Afghanistan Violate International Law?
DU is used in weapons such as anti-tank munitions, missiles, and other projectiles due to its high density and availability.99 Concerns about DU have prompted numerous studies addressing the environmental health consequences of exposure.
DU is a byproduct of the process of uranium enrichment in the nuclear power industry in which nearly all the radioactive isotope U-234 and about two-thirds of the isotope U-235 are removed.100 Thus DU is almost entirely U-238, and is about 60% as radioactive as purified natural uranium.101 Chemically, physically, and toxicologically, the metallic form of DU behaves in the same way as the metallic form of natural uranium.102
Unfortunately, the debate over the use of DU munitions is plagued by unsubstantiated propaganda coming from both opponents and supporters of its use. As noted by Dan Fahey in his recent study, "the most zealous deferiders and critics of DU munitions advance old and new claims that mix facts with fiction and propaganda, creating myths and misperceptions that obscure sensible assessments of DU's serious health and environmental effects."103
Dangers Posed by DU
DU is released on impact from fired weapons in the form of small particles that may be inhaled, ingested, or absorbed through dermal contact or injury; or it may remain in the environment potentially causing future risks of contamination.104 [33 ELR 10676] There has been speculation that DU exposure is linked to the "Gulf War Syndrome" experienced by many U.S. soldiers returning from service during Operation Desert Storm, but no causal relationship has been conclusively established.105
DU's primary target organs are the kidneys and the lungs.106 "In the kidneys, the proximal tubules are considered to be the main site of potential damage. Long-term studies of workers chronically exposed to uranium have reported impairment of the kidneys that depended on the level of exposure."107 However, there is also some evidence that renal function may return to normal once the source of excessive uranium exposure has been removed.108 DU likewise presents a possibility of "lung tissue damage leading to a risk of lung cancer if a high enough radiation dose results from insoluble DU compounds remaining in the lungs over a prolonged period (many years)."109
In addition to the impacts upon the kidneys and lungs, the use of DU in armed conflicts may pose threats to the central nervous system (CNS). Uranium released from embedded fragments may accumulate in the CNS tissue, and some animal and human studies are suggestive of effects on CNS function.110 However, studies on CNS effects are not conclusive.111
Like the hazards presented by cluster bombs, dangers associated with DU use are disproportionately experienced by children. As noted by NATO: "Children rather than adults may be considered to be more at risk of DU exposure when returning to normal activities within a war zone through contaminated food and water, since typical hand-to-mouth activity of inquisitive play could lead to high DU ingestion from contaminated soil."112
The presence of DU in areas of armed conflicts presents the risk of future contamination to food and water. "Levels of contamination in food and drinking water could rise in affected areas after some years and should be monitored where it is considered that there is a reasonable possibility of significant quantities of DU entering the ground water or food chain."113 In a recent DOD briefing on DU, the spokesperson stated that "our studies in the United States over 15 years have not shown [DU] going from the soil into groundwater. It just does not move from the round that is in the soil. And the bottom line is there is going to be no impact on the health of the people in the environment, or people who were there at the time it was shot."114 However, this statement has recently been contradicted by a UNEP report confirming for the first time that DU from weapons used in Bosnia and Herzegovina in 1994 and 1995 has contaminated local supplies of drinking water at one site, and can still be found in dust particles suspended in the air.115 Although the recorded contamination levels at these sites were low and did not present immediate radioactive or toxic risks for the environment or human health, the UNEP recommended that alternative water sources be used, the DU penetrators be collected, and the contamination points be covered with asphalt or clean soil.116
The United States has maintained that DU poses no radiation threat to humans.117 However, this stance seems contradictory to the domestic policies the United States follows regarding the treatment of DU. Within the United States, areas that are contaminated with DU are either fenced off or cleaned up through the removal of contaminated soil and debris.118 In the United States, disposal of DU from testing ranges is controlled by the Low-Level Radioactive Waste Policy Act and by Nuclear Regulatory Commission regulations.119 It seems that the United States has taken the position that DU presents no possible radiological dangers during armed conflicts in foreign lands, but when we are dealing with DU within America we treat it as potentially dangerous.
The level of threat posed to human health and the environment from the use of DU munitions is uncertain. There are endless contradictory reports concerning the actual effects DU has had in recent conflicts. While DU does have potential to have negative health effects (primarily on the kidneys and lungs), it is impossible to definitively say that exposure levels during armed conflicts would be sufficiently high to cause such effects.
Justifications for the Use of DU Munitions
The United States uses DU because of its unique ability to penetrate armored targets.120 The DOD asserts that DU munitions enable U.S. forces to "strike the target from farther away than we can be hit back, and we want the target to be destroyed when we shoot at it."121 According to the DOD: "During the Gulf War we had tanks engaged in situations with multiple Iraqi tanks that were shot, hit—not penetrated—and proceeded to destroy all three of the targets that engaged them…. That's how much advantage it gives us. So we don't want to give that up, and that's why we use it."122
Some commentators allege that Pentagon officials vastly overstate DU's importance while downplaying the effectiveness of alternatives such as tungsten alloy ammunition.123 [33 ELR 10677] However, U.S. officials maintain that "[DU] will penetrate more armor of a given character and type at a given range than tungsten will, no matter how we design the penetrators."124
DU in Afghanistan
It remains unclear whether the United States used munitions containing DU during Operation Enduring Freedom. Some commentators suspect that DU has been used in Afghanistan, especially in bunker busting weapons and guided missiles.125 Several weapons that have historically been used by the United States to deploy munitions containing DU were used in Afghanistan. Two of these were the Air Force A-10 aircraft and AV-8Bs.126 However, this circumstantial evidence in itself does not constitute proof that DU weapons were used in Afghanistan.
Unfortunately, unsubstantiated reports have been circulated claiming that the United States deployed huge quantities of DU in Afghanistan, some alleging that up to two million pounds were used.127 However, there is no clear evidence that the United States used DU munitions in Afghanistan, and reports alleging its use represent, at present, mere speculation.128
There have also been assertions that DU use in Afghanistan has caused the poisoning of babies, birth defects, radioactive dust storms, and pollution of rivers.129 Again, there is no evidence for the claims, only unsupported speculation that DU has affected the health of the Afghan population.130 "The attribution of widespread, severe health effects in Afghanistan from DU munitions appears to stem from opposition to the United States and U.S. foreign policy, rather than have grounding in any credible studies or analysis."131
DU Munitions in Afghanistan: A Violation of International Law?
Because it is not yet known whether the United States used munitions containing DU in Afghanistan, it is impossible to evaluate whether there was any violation of international law. If it turns out that the United States did use DU, as some suspect, then the amounts and effects of its use would need to be evaluated, and weighed against the military advantages it gave the United States. Even if the United States did use munitions containing DU in Afghanistan, it is very unlikely that its use would be considered a violation of international law.
Following NATO's use of DU in Yugoslavia, the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia concluded that there was no basis for any charges, and that the Office of the Prosecutor for the International Criminal Tribunal for the former Yugoslavia should not commence an investigation into use of DU projectiles by NATO.132 This conclusion was largely based on the lack of scientific or legal consensus regarding the use of DU, a problem that still exists today.133
Any use of DU by the United States in Afghanistan has not constituted an attack done with the intention or expectation to cause extensive environmental damage, as prohibited by Article 55 of Protocol I. In light of the fact that there is no scientific consensus that DU in armed conflicts has had any impact on environmental health, it can hardly be argued that the United States intended or expected to cause environmental damage by any possible use of DU in Afghanistan.
The lack of a consensus regarding damage caused by DU will also preclude any possible use of DU in Afghanistan from being held a violation of Article 35(2), the prohibition against methods of warfare that cause superfluous injury or unnecessary suffering.
Did U.S. Selection of Attack Targets in Afghanistan Violate International Law?
Background on Targeting Sites With Potential to Cause Environmental Devastation
In modern warfare, nations occasionally target dual use objects such as electric plants, water facilities, factories, refineries, dams, hospitals, and agricultural resources.134 These dual use objects serve both the opponent's military forces and the needs of the civilian population.135 Whether these dual use objects are legitimate military targets often will require balancing the specific military advantage gained by the attack, compared to the impact the attack has on the environment and the civilian population.136 Attacks on such targets have potential to pose serious environmental health threats to civilian populations, and may constitute violations of international law.
Attacks on civilian food and water supplies may lead to malnutrition and contaminated water, which pose grave threats to the human immune system.137 Inadequate water and sanitation are primary causes of diseases such as malaria, [33 ELR 10678] cholera, dysentery, schistosomiasis, infectious hepatitis, and diarrhea; which are associated with 3.4 million deaths each year.138 Shortages of potable water may be caused by destruction of targets other than water supplies. In Iraq during the Gulf War, and again in Yugoslavia during Operation Allied Force, electrical facilities were targeted.139 While attacks on dual use facilities, such as these electrical facilities, may have diminished the respective opposition's military command and control; they also resulted in the shutting down of water distribution, purification, and sewage treatment plants, as well as electricity supplies to hospitals.140 Shutdowns of these types of facilities have ill consequences for environmental health concerns.141
The [ICRC] reports that one of the most serious and frequent problems it confronts in relief work is water-related health threats created by armed conflict. The ICRC observes that "in a growing number of conflicts, waterrelated problems are reported to cause more casualties than direct injury by weapons."142
Destruction of sites that support civilian sustenance may lead to mass migrations. Attacks on objects indispensable to the survival of the civilian population, such as foodstuffs, crops, livestock, drinking water supplies, and irrigation works may leave the civilian population with such inadequate food or water as to force its movement.143 Such migrations pose serious infectious disease problems.144 The ICRC observed that "up to 50% of the deaths among displaced populations are caused by waterborne diseases."145
U.S. Target Site Selection in Afghanistan
The official DOD position on targets in Afghanistan is that "U.S. forces intentionally strike only military and terrorist targets, and regret any innocent casualties."146 The military nature of various targets in Afghanistan has been questioned.147 As noted by the ICRC, the recent U.S. military strikes added to the destruction and disruption of Afghan infrastructure, at a time where millions of Afghans were extremely vulnerable to disease, hunger, and death.148
U.S. air strikes in Afghanistan damaged several sources of civilian water supplies, exacerbating preexisting water shortage problems in Afghanistan.149 According to a UNEP report, in urban Afghanistan safe water may be reaching as little as 12% of the population.150 The destruction of the nation's water supplies threatens the civilian population with the potentially fatal dangers of water shortage, cholera, and diarrhea-related diseases.151
During the U.S. bombing campaign, Kabul's main water supply networks were damaged and the local population faced severe water shortages.152 Destruction of Kabul's water supply posed the risk of a potential cholera epidemic.153 In just a three-week period approximately 6,691 patients were admitted to Kabul hospitals with diarrhea-related diseases.154 As of July 14, 2001, the World Health Organization reported that approximately 6,000 people had been admitted to hospitals as health authorities battled an outbreak of cholera.155 The U.S. attacks on Afghan water supplies clearly are [33 ELR 10679] not the sole cause of these health problems; Afghanistan's water supply had been inadequate prior to the attacks. However, the attacks have exacerbated the problem.
One specific target that the United States has been criticized for attacking was the hydroelectric power station near the Kajaki Dam. Transmission lines from the Kajaki Dam in Helmand province near Kandahar were hit by an airstrike in November 2001.156 On several occasions since then, power to Kandahar has been cut off by attacks on the transmission lines.157 The hydroelectric power station at the Kajaki Dam provides electricity to about 500,000 people and to several hospitals and industrial sites in Kandahar and neighboring Helmand province, as well as the machinery that controls the flow of the Helmand River.158 The dam on the Helmand River is 300 feet high, 900 feet long, and has the potential to hold 1.85 million cubic meters of water in a 32-mile-long resevoir.159 The attack cut electricity to the cities of Kandahar and Lashkarga and threatened important grazing land with flooding.160
Reports indicated that the dam itself was not directly hit by the air raids, but according to the office of the U.N. regional coordinator for southern Afghanistan, damage to the hydroelectric power station alone could have created the risk of massive flooding and crop failures.161
In Kandahar, the lack of water, combined with damage to the electrical infrastructure, may have been influential in precipitating a mass exodus from the city, during which 80% of the population of approximately 200,000 fled.162 As noted by journalist Kamal Hyder: "There is an apprehension as far as the people are concerned that they will not be able to pump groundwater. And that would be a catastrophe. Whoever has remained behind will not be able to cope with the difficulties that may accrue from this."163
Attack on the Kajaki Hydroelectric Power Station: A Violation of International Law?
Additional Protocol I, Article 54(2)
Article 54(2) of Additional Protocol I indirectly provides environmental protection during armed conflicts.164 It provides that
it is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as food-stuffs, agricultural areas for the production of food-stuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party.165
Despite the fact that electricity supplies are not one of the listed objects under Article 54(2), the Kajaki hydroelectric station still may be protected if it qualifies as an object "indispensable to the survival of the civilian population." The items cited in Article 54(2)'s text are merely illustrative of those that may qualify.166 Fuel storage, electricity supplies, or lines of communication could also be essential to providing civilian populations sustenance in a particular context.167 As discussed above, the Kajaki station provides electricity to 500,000 people and to several hospitals and industrial sites in Kandahar and neighboring Helmand province, as well as the machinery that controls the flow of the Helmand River.168 After the disruption in the electricity supply, important grazing lands were threatened with flooding.169 In light of the significant civilian support provided by the Kajaki station, it may arguably be classified as an "object indispensable to the survival of the civilian population."
Even if the Kajaki hydroelectric station qualifies as an "object indispensable to the survival of the civilian population," however, the attack still did not constitute a violation of Article 54. Article 54(2) applies only if the attack was carried out for the specific purpose of denying the object's sustenance value. There has been no explanation from the DOD as to why the site was attacked. Attacks on electricity supplies have traditionally been justified by the United States on the basis that they enable forces to "compromise air defenses, command and control systems, and communication systems."170 Another possible justification for the attack is that it may have been directed at a nearby Al Qaeda military post.171 Diplomatic sources in Pakistan said that Al Qaeda troops had in the past been based at a military post located close to the dam.172 Nevertheless, there is no evidence that the United States struck this target with the specific purpose of denying civilians or opposition personnel its sustenance value.
Article 54(3)(b) provides a possible exception by which the mens rea requirement of intent under Article 54(2) will [33 ELR 10680] not apply. If the attack "may be expected to leave the civilian population with such inadequate food or water as to cause its starvation or force its movement," then it constitutes a violation of Article 54, regardless of the actual intent of the attacking party.173
There is no evidence to support allegations that the damage done to the Kajaki station was conducted with the expectation of causing civilian starvation or forced displacement. As noted above, 80% of the population of Kandahar left the city in a mass exodus. However, there are several factors that contributed to this movement: the recent drought, proximity to heavy air raids, and arguably impacts from the attack on the Kajaki station. The attack on the hydroelectric station was not the sole cause of the mass migration. Because there is no evidence that the attack on the Kajaki station was performed with the expectation to starve civilians or force their movement, the attack does not constitute a violation of Article 54(3)(b).
Additional Protocol I, Article 56
Article 56 protects works and installations containing dangerous forces, specifically dams, dikes, and nuclear electrical-generating stations.174 It has been interpreted to protect only dams, dikes, and nuclear facilities.175 Taliban spokesmen claimed that the Kajaki Dam itself was struck.176 Taliban spokesman Lola Amir Khan Motaqi stated that the bombing inflicted heavy damage on the dam, and that if water started to flow out of it thousands of people would face the threat of death.177 However, contrary to Taliban claims, all other reports indicate that the dam itself was not hit.178 Accordingly, Article 56 has not been breached because there was no attack on a dam, dike, or nuclear electrical-generating station.
There is a growing sense in the international community that environmental damage caused by armed conflicts must be prevented when possible and punished when necessary.179 The United States cannot ignore this fact in the conduct of its military operations.180 The use of cluster bombs during Operation Enduring Freedom negatively impacted Afghanistan's agricultural and grazing lands, Afghan infrastructure, and civilian populations. U.S. use of cluster bombs constituted a violation of the prohibition against indiscriminate attacks. It remains unclear whether the United States used DU munitions in Afghanistan. Nevertheless, as the scientific community increases its understanding of the environmental threats posed by DU munitions, it will be imperative for nations to monitor their use of DU, in order to ensure continued compliance with international laws.181
In several recent armed conflicts the United States has supplemented its justifications for military engagement with statements suggesting that military efforts are serving humanitarian considerations, as well as defending the security of the United States. In an address to the nation following the commencement of Operation Enduring Freedom, President George W. Bush stated that "the oppressed people of Afghanistan will know the generosity of America and our allies. As we strike military targets, we'll also drop food, medicine and supplies to the starving and suffering men and women and children of Afghanistan."182 More recently, following the commencement of Operation Iraqi Freedom, President Bush reaffirmed that U.S. commitment to the Iraqi people would not end with a military victory. He promised that America would help feed the population of Iraq and rebuild the infrastructure of the oil-rich land.183 Unfortunately, the recent war in Iraq has caused devastating effects on Iraq's environment. Destruction of Iraqi sanitation systems, electrical plants, and industrial infrastructure have caused significant harm to the health of Iraqi civilians.184
In order to achieve any asserted humanitarian goals the United States associates with military operations, it is essential for the United States to place a special emphasis on protection of the environment during armed conflicts. As noted by Klaus Toepher, executive director of the UNEP: "A healthy environment is a prerequisite for sound and sustainable development. People cannot secure real and sustainable economic development, against a backdrop of contaminated water, polluted land, and marginalized natural resources."185
[33 ELR 10681]
In addition to causing harm to Afghanistan's environment, inflicting environmental damage in violation of international law results in injury to the reputation of the United States in the international community. In order to maintain the appearance of legitimacy with other nations, it is essential that the United States adhere to international law.186 Even in a conflict garnering broad international support, such as Operation Enduring Freedom, it is of paramount importance that the United States conduct military operations through employing methods/means of warfare that comply with international law. As discussed above, U.S. use of cluster bombs during Operation Enduring Freedom drew much criticism from the international community.187 Unless the United States conducts armed conflicts in full compliance with international law, including standards intended to prevent or minimize adverse environmental impact, other nations will be hesitant to extend diplomatic or military support for future engagements.
1. Rymn J. Parsons, The Fight to Save the Planet: U.S. Armed Forces, "Greenkeeping," and Enforcement of the Law Pertaining to Environmental Protection During Armed Conflict, 10 GEO. INT'L ENVTL. L. REV. 441, 441 (1998).
2. Laurent R. Hourcle, Symposium: The Environmental Law of War, 25 VT. L. REV. 653, 654 (2001):
In 146 B.C., during the Third Punic War, the soil of Carthage was laced with salt to pollute the land and render it infertile; to pollute an opponent's water, the Romans threw dead animals into the wells of their enemies…. In the U.S. Navaho Wars of 1860 to 1864, the United States deliberately destroyed sheep and other livestock, as well as fruit orchards and other crops of the Navaho, as part of its successful strategy of subjugation…. In 1938, during the Second Sino-Japanese War, the Chinese dynamited the Huayuankow dike of the Yellow River in an effort to stop the advance of the Japanese. The ensuing flood waters ravaged major portions of the Honan, Anhwei, and Kiangsu provinces, destroying cities, crops, and topsoil of several million hectares, drowning hundreds of thousands of people and leaving millions homeless…. During [Vietnam], the United States utilized a strategy that included massive rural bombing, chemical and mechanical deforestation, large-scale crop destruction, and intentional disruption of natural and human ecologies.
3. Parsons, supra note 1, at 463.
4. Id. at 464.
5. Id. at 463.
6. See generally THE ENVIRONMENTAL CONSEQUENCES OF WAR: LEGAL, ECONOMIC, AND SCIENTIFIC PERSPECTIVES (Jay E. Austin & Carl E. Bruch eds., Cambridge Univ. Press 2000); Carl E. Bruch & Jay E. Austin, The 1999 Kosovo Conflict: Unresolved Issues in Addressing the Environmental Consequences of War, 30 ELR 10069 (Jan. 2000); Jeremy Leggett, The Environmental Impact of War: A Scientific Analysis and Greenpeace's Reaction, in ENVIRONMENTAL PROTECTION AND THE LAW OF WAR 73 (Glen Plant ed., 1992). (In the Korean War, 22,000 tons of bombs were dropped per month, in the Vietnam War, 34,000 tons were dropped per month, and in the 1991 Gulf War, 59,000 tons were dropped per month. During the 1991 Gulf War, contrary to claims of "surgical strikes," only 7.4% of the 88,500 tons of bombs that were dropped were precision-guided.)
7. U.N. CHARTER, art. 93, P1.
8. CHARTER OF THE UNITED NATIONS AND STATUTE OF THE INTERNATIONAL COURT OF JUSTICE, 1945 U.S.T. LEXIS 199; 3 Bevans 1153 (June 26, 1945).
9. Parsons, supra note 1, at 447. Cf. Hague Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, pt. IV, pmbl. 36 Stat. 2277 (Martens Clause). See also Richard Falk, The Environmental Law of War: An Introduction, in ENVIRONMENTAL PROTECTION AND THE LAW OF WAR, supra note 6, at 84 ("The Martens Clause is important, because it confirms the persistence of customary international law in relation to belligerent practices not covered by treaty norms, and extends the law of war to states that have failed to accede to recent developments in treaty law.").
10. Hourcle, supra note 2, at 672.
11. Cf. Nicholas J. Wheeler, Protecting Afghan Civilians From the Hell of War, SOC. SCI. RES. COUNCIL, at http://www.ssrc.org/sept11/essays/wheeler.htm (last visited June 11, 2003) (questioning whether there were alternative military strategies that would have secured victory at a significantly reduced cost in terms of civilian casualties).
12. UNITED NATIONS ENVIRONMENT PROGRAM (UNEP), POST CONFLICT ENVIRONMENTAL ASSESSMENT: AFGHANISTAN 10-12 (2003), available at http://postconflict.unep.ch/afghanistan/report/afghanistanpcajanuary2003.pdf (last visited June 11, 2003). See also THE WORLD FACTBOOK (2002): AFGHANISTAN, available at http://www.odci.gov/cia/publications/factbook/geos/af.html (last modified Mar. 19, 2003, last visited June 11, 2003).
13. Statement by Pekka Haavisto, chairman of the UNEP Afghanistan Task Force, UNEP to Assess Environmental Damage in Afghanistan, Sept. 12, 2002 (last visited Apr. 8, 2003), available at http://www.unep.org/Documents/Default.asp?DocumentID=264&ArticleID=3129 (last visited June 11, 2003).
14. Thomas M. McDonnell, Cluster Bombs Over Kosovo: A Violation of International Law?, 44 ARIZ. L. REV. 31, 41-42 (2002).
15. See FEDERATION OF AMERICAN SCIENTISTS (FAS): MILITARY ANALYSIS NETWORK, CBU-87/B COMBINED EFFECTS MUNITIONS (CEM) BLU-97/B COMBINED EFFECTS BOMB (1999), available at http://www.fas.org/man/dod-101/sys/dumb/cbu-87.htm (last modified June 25, 1999) (during Operation Desert Storm the U.S. Air Force dropped 10,035 CBU-87s over the Persian Gulf) [hereinafter FAS]; see also McDonnell, supra note 14, at 52 (during Operation Allied Force NATO dropped nearly 1,800 cluster bombs on Serbia and Kosovo).
16. FAS, supra note 15.
17. McDonnell, supra note 14, at 42.
18. Human Rights Watch, Cluster Bombs in Afghanistan, HUMAN RIGHTS NEWS, Oct. 2001, para. Introduction, available at http://www.hrw.org/backgrounder/arms/cluster-bck1031.htm (last visited June 11, 2003) [hereinafter Cluster Bombs in Afghanistan].
19. McDonnell, supra note 14, at 51.
20. Cluster Bombs in Afghanistan, supra note 18, para. Department of Defense Justifications.
21. Id. para. Introduction.
22. Christopher Reilly, Cluster Bombs: From Washington With Love, GUERILLA NEWS NETWORK, Dec. 5, 2001, available at http://www.guerrillanews.com/human_rights/doc200.html (last visited June 11, 2003).
23. Cluster Bombs the Legacy to Afghan Population, MEDECINS SANS FRONTIERES, Jan. 18, 2002, available at http://www.reliefweb.int/w/rwb.nsf/s/9F2C42AA435104B3C1256B45005500FA) (last visited June 11, 2003). See also Cluster Bombs in Afghanistan, supra note 18, para. Introduction ("When bomblets contained inside cluster bombs fail to explode on contact as intended, they become in effect antipersonnel landmines—volatile and deadly remnants of war that can explode from a simple touch.").
24. U.S. DEPARTMENT OF DEFENSE (DOD), DRAFT I: MUNITIONS ACTION PLAN: MAINTAINING READINESS THROUGH ENVIRONMENTAL STEWARDSHIP AND ENHANCEMENT OF EXPLOSIVES SAFETY IN THE LIFE-CYCLE MANAGEMENT OF MUNITIONS, pt. I: Background (1999), available at http://www.denix.osd.mil/denix/Public/News/OSD/Munitions/reviewdod.html (last visited June 11, 2003).
25. Id. pt. I: Current and Future Challenges.
26. Maj. Thomas J. Herthel, On the Chopping Block: Cluster Munitions and the Law of War, 51 A.F. L. REV. 229, 240 (2001).
27. Reilly, supra note 22.
28. Marc W. Herold, Above the Law and Below Morality: Data on II Weeks of U.S. Cluster-Bombing of Afghanistan, Feb. 1, 2002, P4, available at http://www.cursor.org/stories/abovethelaw.htm (last visited Apr. 8, 2003).
29. U.N. Mine Action, Landmine Monitor Report: Afghanistan, at http://www.mineaction.org/countries/countries_overview.cfm?country_id=524 (last visited Apr. 8, 2003).
30. McDonnell, supra note 14, at 57.
32. Id. at 58.
33. Id. See also Rachel Stohl, Center for Defense Information, Cluster Bombs Leaving Lasting Legacy, WKLY. DEFENSE MONTIOR, Aug. 5, 1999, at 5, available at http://www.cdi.org/weekly/1999/issue30.html#1 (last visited June 11, 2003) (noting that 97 bomblets have been recovered by allied minesweepers in the Adriatic Sea: "Munitions dumped at sea have caused deaths and injuries to Italian fishermen in the Adriatic and cost others the majority of the year's profits.").
34. McDonnell, supra note 14, at 54.
35. Elizabeth Neuffer, Fighting Terror After the Battle/Civilian Casualties, BOSTON GLOBE, Jan. 20, 2002, at A23, available at LEXIS, News Library, Bglobe File.
36. Fatally Flawed: Cluster Bombs and Their Use by the United States in Afghanistan P4, HUMAN RIGHTS WATCH REP., Dec. 18, 2002, para. IV, available at http://www.reliefweb.int/w/rwb.nsf/s/B1A6519F45D1FA3D85256C93005F0EF7 (last visited June 11, 2003) [hereinafter Fatally Flawed].
37. Afghan Children at Risk From 24,000 Unexploded Bomblets, AGENCE FRANCE PRESSE, Dec. 21, 2001, available at http://www.reliefweb.int/w/rwb.nsf/s/C83417001BC835DBC1256B29004C5CAE (last visited June 11, 2003) [hereinafter Afghan Children at Risk]. See also U.N. Press Briefing in Kabul, U.N. INFORMATION CENTRE, Dec. 31, 2001, available at http://www.reliefweb.int/w/rwb.nsf/s/CDF691027AF2E388C1256B350049E691 (last visited June 11, 2003) ("There are four confirmed cluster bomb sites on the old road north of Kabul…. The village [of Denar Kheil] was cluster bomb attacked by coalition forces last month and is now heavily contaminated with unexploded BLU 97 bomblets.").
38. Fatally Flawed, supra note 36, P4; see also JOHN WILDING & SIPPI AZERBAIJANI-MOGHADDAM, EUROPEAN COMMISSION CONFLICT PREVENTION AND CRISIS MANAGEMENT UNIT, REPORT OF THE EUROPEAN COMMISSION (EC) RAPID REACTION MECHANISM ASSESSMENT MISSION: AFGHANISTAN, FOOD SECURITY (2002) ("Among the most unaware of mine danger are livestock and the annual losses in this sector have been estimated at USD 250,000 per square kilometer …. Evidently mine injuries are extremely damaging to the agricultural sector as a whole and to individual families.").
39. Strikes on Kandahar; U.N. Reports on Bombs, Refuges, CNN.COM/WORLD, Oct. 24, 2001, available at http://www.cnn.com/2001/WORLD/asiapcf/central/10/24/ret.afghan.attacks/index.html (last visited June 11, 2003).
40. DAVID P. FILDER, INTERNATIONAL LAW AND PUBLIC HEALTH 376 (2000).
41. Carl Concetta, Strange Victory: A Critical Appraisal of Operation Enduring Freedom and the Afghanistan War app. 1.2, PROJECT ON DEFENSE ALTERNATIVES, Jan. 30, 2002, available at http://www.comw.org/pda/0201strangevic.html (last visited June 11, 2003).
42. Id. app. 1.1.
43. McDonnell, supra note 14, at 58.
44. Afghan Children at Risk, supra note 37.
45. Cluster Bombs in Afghanistan, supra note 18, para. Introduction.
46. U.S. DOD, News Transcript: DOD News Briefing—Secretary Rumsfeld and General Myers, Nov. 1, 2001, available at http://www.defenselink.mil/news/Nov2001/t11012001_t1101sd.html (last visited June 11, 2003) [hereinafter DOD Briefing of Nov. 1, 2001].
49. U.S. DOD, News Transcript: DOD News Briefing—Rear Adm. John Shufflebeem, Joint Staff, Nov. 28, 2001, available at http://www.defenselink.mil/news/Nov2001/t11282001_t1128stf.html (last visited June 11, 2003) [hereinafter DOD Briefing Nov. 28, 2001].
51. DOD Briefing of Nov. 1, 2001, supra note 46.
53. Peter J. Richards & Michael N. Schmitt, Mars Meets Mother Nature: Protecting the Environment During Armed Conflict, 28 STETSON L. REV. 1047, 1074 (1999); id. at 1075 (The principle of military necessity has become well-established customary international law, and violation of this principle constitutes a war crime.). See also Hourcle, supra note 2, at 664 ("Places that are not military objectives should not be attacked so as to avoid unnecessary suffering.").
54. Parsons, supra note 1, at 447; see also Falk, supra note 9, at 80 ("what dominant states find militarily useful in war is unlikely to be prohibited, and if it is, the prohibition is unlikely to be respected in the next war"); see also Bradley Graham, Pentagon Prepared to Forgo Most Land Mine Use Except in Korea, Persian Gulf, WASH. POST, Apr. 19, 1996, at A26 (In 1994, while the United States endorsed the elimination of anti-personnel mines, it wanted to continue using these weapons in the Persian Gulf region and in Korea.).
55. Falk, supra note 9, at 80.
56. See generally Cluster Bombs in Afghanistan, supra note 18, para. Department of Defense Justifications.
57. Richard G. Tarasofsky, International Law and the Protection of the Environment During International Armed Conflict, in GREENING INTERNATIONAL LAW 244 (Phillippe Sands ed., 1994); see also Protocol Additional to the Geneva Convention of August 12, 1949, and Relating to the Protection of the Victim of International Armed Conflicts, art. 51, U.N. Doc. A/32/144 (1977) [hereinafter Protocol I] (Article 51 codifies the principle of proportionality: "Among others, the following types of attacks are to be considered as indiscriminate: an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.").
58. Richards & Schmitt, supra note 53, at 1082; see also Falk, supra note 9, at 84 ("To be lawful weapons and tactics must be proportional to their military objective. Disproportionate weaponry and tactics are excessive, and as such are illegal.").
59. Hourcle, supra note 2, at 668 ("The yardstick of proportionality is the concrete and direct military advantage expected.").
60. Afghan Children at Risk, supra note 37.
61. McDonnell, supra note 14, at 70-71.
62. Herold, supra note 28.
63. Danish Karokhel, Returning Afghans Fear Mine Menace, INSTITUTE FOR WAR & PEACE REPORTING, Jan. 31, 2003, available at http://www.iwpr.net/index.pl?archive/arr/arr_200301_46_3_eng.txt (last visited June 11, 2003).
64. Cf. Richards & Schmitt, supra note 53, at 1083 ("The value attributed to the environment in the making of proportionality calculations has clearly evolved.").
65. Hourcle, supra note 2, at 669. But see Tarasofsky, supra note 57, at 244 ("Proportionality is considered by some to be the most promising basis for protecting the environment, in that it regulates the degree and type of harm done to a target, as well as the collateral damage caused.").
66. See Richards & Schmitt, supra note 53, at 1083-84 ("anthropocentrism, centers on the value man derives from the environment, whether for its "property," or "utility," or for more abstract qualities, such as its aesthetic value…. The alternative frame of reference sees the environment in terms of extra-human, intrinsic value.").
67. Falk, supra note 9, at 84; see also Protocol I, supra note 57, art. 51. Article 51(4) has codified the principle of discrimination:
Indiscriminate attacks are prohibited. Indiscriminate attacks are: (a) those which are not directed at a specific military objective; (b) those which employ a method or means of combat which cannot be directed at a specific military objective; or (c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.
68. Hourcle, supra note 2, at 666.
69. AMNESTY INTERNATIONAL, AFGHANISTAN: ACCOUNTABILITY FOR CIVILIAN DEATHS (2001), available at http://web.amnesty.org/library/Index/engASA110222001?OpenDocument&of=COUNTRIES%5CAFGHANISTAN?OpenDocument&of=COUNTRIES%5CAFGHANISTAN (last visited June 11, 2003).
70. Unexploded Ordnance and Depleted Uranium Ammunition, Eur. Parl. Doc. (P5_TA-PROV(2003)0062) (2003).
71. President of European Parliament Condemns Use of Cluster Bombs, EUROPAWORLD, Feb. 11, 2001, available at http://www.europaworld.org/issue55/presidentof21101.htm (last visited June 11, 2003).
75. DOD Briefing of Nov. 1, 2001, supra note 46.
78. McDonnell, supra note 14, at 81.
80. DOD Briefing of Nov. 1, 2001, supra note 46.
81. Protocol I, supra note 57, art. 35.
82. Herthel, supra note 26, at 256.
83. McDonnell, supra note 14, at 69.
86. Herthel, supra note 26, at 258-59; see also Richard Falk, Appraising the War Against Afghanistan, SOC. SCI. RES. COUNCIL, § 2, at http://www.ssrc.org/sept11/essays/falk.htm (last visited June 11, 2003) ("I think it can be tentatively concluded that the U.S. Government did do its best to minimize Afghan civilian casualties, but in a manner that was hampered by the greater attentiveness to tactics that would reduce American military casualties to near zero.").
87. Wheeler, supra note 11, P16.
88. Herthel, supra note 26, at 259.
91. Protocol I, supra note 57, art. 51; see generally Richards & Schmitt, supra note 53, at 1061-62 (discussion of Articles 35 and 55):
It appears that once the degree of damage to the environment reaches a certain level Protocol I does not employ the traditional balancing of military necessity…. No other considerations, such as the military advantage offered by the prohibited act, the possibility that alternative operations will result in greater incidental injury to civilians or collateral damage to civilian property, or the overall impact of the action in context, can trump the principle of environmental protection.
92. Parsons, supra note 1, at 451 ("Articles 35 and 55 of Protocol I cover not only deliberate environmental damage but also that which is reasonably foreseeable.").
93. Cluster Bombs in Afghanistan, supra note 18, para. Introduction.
96. McDonnell, supra note 14, at 88.
97. Tarasofsky, supra note 57, at 247.
98. McDonnell, supra note 14, at 88.
99. North Atlantic Treaty Organization (NATO), Dr. Michael H. Repacholi, Background Material on Depleted Uranium (DU), Jan. 8, 2001, available at http://www.nato.int/du/docu/d010108e.htm (last visited June 11, 2003).
100. WORLD HEALTH ORGANIZATION (WHO), DEPLETED URANIUM: FACT SHEET NO. 257 (2003), available at http://www.who.int/mediacentre/factsheets/fs257/en/ (last visited June 11, 2003) [hereinafter DU: WHO Factsheet].
102. Repacholi, supra note 99, para. What Is DU?
103. Dan Fahey, Science or Fiction? Facts, Myths, and Propaganda in the Debate Over Depleted Uranium Weapons, Mar. 12, 2003, at 3, at http://www.antenna.nl/wise/uranium/pdf/dumyths.pdf. See also Colum Lynch, WHO Team Will Study a Weapon's Toll in Iraq, WASH. POST, Aug. 24, 2001, at A20 (Iraqis assert that DU exposure has increased civilian cancer rates, including leukemia, following the Persian Gulf War); cf. Repacholi, supra note 99, para. Leukaemia (asserting that a link between DU exposure and leukemia is very unlikely).
104. Repacholi, supra note 99; see also DU: WHO Factsheet, supra note 100.
105. Id. para. Concerns Raised by the Use of DU.
106. DU: WHO Factsheet, supra note 100.
112. Repacholi, supra note 99, para. DU in the Environment; see also U.S. DOD, News Transcript: Briefing on Depleted Uranium, Mar. 14, 2003, available at http://www.defenselink.mil/news/Mar2003/t03142003_t314depu.html (last visited June 11, 2003) ("there really is no data on how much it takes to cause an issue or a problem in children") [hereinafter DOD Briefing on DU].
113. DU: WHO Factsheet, supra note 100.
114. DOD Briefing on DU, supra note 112.
115. Press Release, UNEP, Low-Level Contamination Found in Bosnia and Herzegovina: UNEP Calls for Precaution, Mar. 25, 2003, available at http://www.unep.org/Documents/Default.asp?ArticleID=3926&DocumentID=298 (last visited June 11, 2003).
117. Lynch, supra note 103.
118. Dan Fahey, Facts on Depleted Uranium: Use, Effects, and Legal Standing of Depleted Uranium Munitions, undated, at 2, at http://www.du.publica.cz/papers/Fahey.htm (last visited June 11, 2003).
119. Id. See 42 U.S.C. § 2021a-2021j.
120. DOD Briefing on DU, supra note 112.
123. Fahey, supra note 103, at 25.
124. DOD Briefing on DU, supra note 112.
125. Dan Fahey. The Use of Depleted Uranium in Afghanistan, Dec. 22, 2002, at http://www.antenna.nl/wise/uranium/dissafdf.html (last visited June 11, 2003).
127. See generally Dai Williams, Mystery Metal Nightmare in Afghanistan, available at http://www.eoslifework.co.uk/pdfs/DU012v12.pdf (last visited June 11, 2003).
128. See Fahey, supra note 103, at 21.
129. Sarmad Sufian, U.S. Used Nuclear Waste, WEEKLY INDEPENDENT (Pakistan), Nov. 29-Dec. 5, 2001; see also The Headlines Around South Asia, AGENCE FRANCE PRESSE, Oct. 30, 2001; Richard S. Ehrlich, Depleted Uranium Toxicity in Afghanistan, LAISSEZ FAIRE TIMES, Oct. 29, 2001, available at http://www.xs4all.nl/ stgvisie/VISIE/afghan_uranium.html (last visited June 11, 2003).
130. Fahey, supra note 103, at 22.
132. International Criminal Tribunal for the Former Yugoslavia (ICTY): Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, 39 I.L.M. 1257, 1264 (2000), available at http://www.un.org/icty (last visited June 11, 2003).
134. Cf. Leggett, supra note 6, at 70 ("Throughout the twentieth century, the involvement of industrial infrastructure has increased with virtually every war we have seen.").
135. International Humanitarian Law Issues and the Afghan Conflict: Open Letter to North Atlantic Treaty Organization (NATO) Defense Ministers, HUMAN RIGHTS WATCH, Oct. 17, 2001, § 2, available at http://www.hrw.org/press/2001/10/nato1017-ltr.htm (last visited June 11, 2003) [hereinafter Letter to NATO].
137. FIDLER, supra note 40, at 376.
138. Press Release, WHO, Water for Health Enshrined as a Human Right, Nov. 27, 2002, available at http://www.who.int/mediacentre/releases/pr91/en/print.html (last visited June 11, 2003); see also Press Release, WHO, Disease Outbreak Reported: Cholera in Iraq, June 19, 2003, available at http://www.who.int/csr/don/2003_06_17A/en/:
From 28 April to 4 June 2003, a total of 73 laboratory-confirmed cholera cases have been reported in Iraq…. From 17 May to 4 June 2003, the daily surveillance system of diarrhoeal disease cases in the four main hospitals of Basra reported a total of 1,549 cases of acute watery diarrhea. Among these cases, 25.6% occurred in patients aged 5 years and above.
139. Letter to NATO, supra note 135, § 2; see also Olivera Medenica, Protocol I and Operation Allied Force: Did NATO Abide by Principles of Proportionality?, 22 LOY. L.A. INT'L & COMP. L. REV. 329, 410 (2001).
140. Letter to NATO, supra note 135, § 2; see also Medenica, supra note 139, at 410.
141. Letter to NATO, supra note 135, § 2.
142. FILDER, supra note 40, at 377.
143. Id. at 376.
145. Id. at 376-77 ("The reality of the threat of water-borne diseases to persons displaced because of armed conflict was witnessed in the Rwandan refugee camps in Zaire, where approximately 50,000 refugees died from cholera or shigella in the first month the camps existed.").
146. U.S. DOD, News Release: U.S. Inadvertently Strikes ICRC Warehouses, Oct. 16, 2001, available at http://www.defenselink.mil/news/Oct2001/b10162001 (last visited Apr. 3, 2003).
147. See U.S. Bombs Knock Out Dam "Imperil Thousands," in Heaviest Raids Yet, AGENCE FRANCE PRESSE, Nov. 1, 2001, available at http://www.commondreams.org/headlines01/1101-02.htm (last visited June 11, 2003); see also UNHRC, Red Cross "Deplores" Second U.S. Bomb Attack on Aid Compound in Kabul, Oct. 27, 2001, available at http://www.unhcr.ch/cgi-bin/texis/vtx/print?tbl=NEWS&id=3bdd373315 (last visited June 11, 2003) (For a second time in 10 days ICRC warehouses in Kabul containing humanitarian aid were bombed by the United States. "The buildings contained the bulk of the food and blankets that the ICRC was in the process of distributing to some 55,000 disabled and other particularly vunerable persons." … "The ICRC reiterates that attacking or occupying facilities marked with the red cross emblem constitutes a violation of international humanitarian law.").
148. ICRC, AFGHANISTAN: REBUILDING ESSENTIAL STRUCTURES TO MEET URGENT NEEDS (2002), para. General Situation, available at http://www.icrc.org/web/eng/siteeng0.nsf/iwpList74/EBC05F9E78D0A252C1256B660060EBA5 (last visited June 11, 2003); see also ENERGY INFORMATION ADMINISTRATION, AFGHANISTAN FACT SHEET: ENERGY INFORMATION ADMINISTRATION COUNTRY ANALYSIS BRIEF (2002), available at http://www.eia.doe.gov/emeu/cabs/afghan.html ("Afghanistan's power grid has been severely damaged by years of war.") [hereinafter AFGHANISTAN FACT SHEET].
149. ICRC, AFGHANISTAN — ICRC WATER AND HABITAT ACTIVITIES — JANUARY 2002 (2002), available at http://www.icrc.org/Web/Eng/siteeng0.nsf/iwpList74/5B39AF9619766223C1256BC9005A330B (last visited June 11, 2003).
150. UNEP Post Conflict Assessment Unit, UNEP Report Chronicles Environmental Damage of the Afghanistan Conflict, Jan. 29, 2003, available at http://postconflict.unep.ch/highl.htm (last visited June 11, 2003).
151. Afghanistan Battles Cholera Outbreak, BBC NEWS, July 14, 2002, available at http://news.bbc.co.uk/1/hi/world/south_asia/2127590.stm (last visited June 11, 2003).
152. ICRC, AFGHANISTAN: ICRC ACTIVITIES IN FACTS AND FIGURES (2002), available at http://www.icrc.org/web/eng/siteeng0.nsf/iwpList199/8220A94A081AB60CC1256B66006108D3 (last visited June 11, 2003).
153. Afghanistan Battles Cholera Outbreak, supra note 151.
154. Afghanistan Battles Cholera Outbreak, supra note 151; WHO, Disease Outbreaks Reported: Acute Watery Diarrhoeal Syndrome in Afghanistan, July 17, 2002, available at http://www.who.int/disease-outbreak-news/n2002/july/17july2002.html (last visited June 11, 2003).
155. Kabul Authorities Battle Cholera Outbreak, AGENCE FRANCE PRESSE, July 14, 2002, available at http:www.reliefweb.int/w/rwb.nsf/s/FC020E6141D4BC9D49256BF70007661E (last visited June 11, 2003).
156. AFGHANISTAN FACT SHEET, supra note 148.
158. U.S. Aims to Provide More Troops to Work With Anti-Taliban Elements, STARS AND STRIPES, Nov. 2, 2001, available at http://ww2.pstripes.osd.mil/01/nov01/ed110201p.html (last visited June 11, 2003); see also U.N. Information Centre, Press Briefing by the U.N. Offices for Pakistan and Afghanistan, Nov. 5, 2001, available at http://wwww.reliefweb.int/w/rwb.nsf/s/78F30A5916AE70F3C1256AFB0056502C (last visited June 11, 2003).
159. Richard Lloyd Parry, U.N. Fears "Disaster" Over Strikes Near Huge Dam, THE INDEPENDENT/UK, Nov. 8, 2001, available at http://www.commondreams.org/headlines01/1108-05.htm (last visited June 11, 2003).
160. Jake Lynch, Analysis: Message Control in Afghanistan War, BBC NEWS, Nov. 9, 2001, available at http://news.bbc.co.uk/1/hi/world/americas/1647308.stm (last visited June 11, 2003).
161. Parry, supra note 159.
162. Libyan Aid Heads for Bombed Out Afghan City, AGENCE FRANCE PRESSE, Nov. 3, 2001, available at http:www.reliefweb.int/w/rwb.nsf/s/B494342F8F11204AC1256AFB0054F1F5 (last visited June 11, 2003).
163. Kamal Hyder, Apprehension Among Afghans, CNN.COM/WORLD, Oct. 12, 2001, available at http://www.cnn.com/2001/WORLD/asiapcf/central/10/12/ret.hyder.otsc/index.html (last visited June 11, 2003).
164. See Michael N. Schmitt, Humanitarian Law and the Environment, 28 DENV. J. INT'L L. & POL'Y 265, 302 (2000) ("While none of these target sets are themselves components of the environment, attacks thereon might well risk environmental harm.").
165. Protocol I, supra note 57, art. 54.
166. Schmitt, supra note 164, at 302.
168. U.S. Aims to Provide More Troops to Work With Anti-Taliban Elements, supra note 158; Press Briefing by the U.N. Offices for Pakistan and Afghanistan, supra note 158.
169. Lynch, supra note 160.
170. William M. Arkin, Smart Bombs, Dumb Targeting?, BULLETIN OF THE ATOMIC SCIENTISTS, May/June 2000, at 46, available at http://www.thebulletin.org/issues/2000/mj00/mj00arkin.html (last visited June 11, 2003).
171. Parry, supra note 159.
173. Protocol I, supra note 57, art. 54.
174. Protocol I, supra note 57, art. 56.
175. Schmitt, supra note 164, at 304.
176. Largest Afghan Dam Severely Damaged, AIP REP., Nov. 1, 2001, available at http://www.unhcr.ch/cgi-bin/texis/vtx/print?tbl=NEWS&id=3be275d88.
178. See Parry, supra note 159 ("The U.N. has sent Afghan employees to the isolated site to report on the extent of the damage. Initial reports suggest that the dam itself was not directly hit by the raids.").
179. Nicholas G. Alexander, Airstrikes and Environmental Damage: Can the United States Be Held Liable for Operation Allied Force?, 11 COLO. J. INT'L ENVTL. L. & POL'Y 471, 497 (2000).
181. See UNEP, UNEP Recommends Studies of Depleted Uranium in Iraq, Apr. 6, 2003, available at http://www.unep.org/Documents/Default.asp?ArticleID=3952&DocumentID=309 (last visited June 28, 2003).
182. Presidential Address to the Nation, Office of the Press Secretary, Oct. 7, 2001, available at http://www.whitehouse.gov/news/releases/2001/10/20011007-8.html.
183. Jim Garamone, War Begins; Coalition Aircraft Attack Iraqi Targets, AMERICAN FORCES PRESS SERV., Mar. 19, 2003, available at http://www.dod.gov/news/Mar2003/n03192003_200303199.html (last visited June 11, 2003).
184. Press Release, UNEP, UNEP Outlines Strategy for Protecting People and the Environment in Post-War Iraq (Apr. 24, 2003), available at http://www.unep.org/Documents/Default.asp?DocumentID=309&ArticleID=3965 (last visited June 28, 2003):
A major threat to the Iraqi people is the accumulation of physical damage to the country's environmental infrastructure. In particular, the destruction of, and lack of investment in, water and sanitation systems has led to higher levels of pollution and health risks. On top of this, continuous electricity cuts have often stopped the pumps that remove sewage and circulate freshwater. Power outages have also affected the pumps that remove saline water from irrigated lands in the southern floodplain, leading to widespread water logging and salinization. The destruction of military and industrial infrastructure during Iraq's various conflicts has released heavy metals and other hazardous substances into the air, soil, and freshwater supplies. An assessment of the country's chemical risks and levels of environmental contamination, however, has yet to be conducted. Smoke from the oil-well fires and burning oil-trenches during the past two months has caused local air pollution and soil contamination.
185. Press Release, UNEP, Reconstructing War Torn Afghanistan Must Take Environment Into Account (Dec. 6, 2001), available at http://www.unep.org/Documents/Default.asp?DocumentID=227&ArticleID=2970 (last visited June 11, 2003).
186. Alexander, supra note 179, at 497.
187. See supra notes 8-32; see also AMNESTY INTERNATIONAL, IRAQ: USE OF CLUSTER BOMBS — CIVILIANS PAY THE PRICE (2003), available at http://news.amnesty.org/ (last visited June 29, 2003) (Discussing the recent use of cluster bombs in Iraq during Operation Iraqi Freedom: "On April 1, at least 33 civilians including many children were reportedly killed and around 300 injured in U.S. attacks on the town of al-Hilla…. The use of cluster bombs in an attack on a civilian area of al-Hilla constitutes an indiscriminate attack and a grave violation of international humanitarian law.").
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