The El Jiyeh UN Oil Spill: Legal Issues
There is no question that Israel bombed the oil storage tanks at the El Jiyeh electrical production facility south of Beirut during the 2006 Israel-Lebanon War. There is no question that Israel did so deliberately. However, did Israel do so knowing, or was it reasonable for Israel to have known, that 10,000-15,000 tons of IFP number 6 heavy fuel oil from the ruptured tanks would leak into the Mediterranean?
I do not know. From reading the repeated UN “inquiries” and reports into the environmental disaster, one could never find out. Because there is no effort to ask the question, let alone find answers. The inquiries begin with a presumption of guilt and responsibility and merely tried to make as strong a case for the prosecution as possible, much more in the nature of the procedures for a kangaroo court than an independent and objective inquiry in which one gathers and hears all the evidence, raises all the key questions, analyzes the results and tries, as much as possible, to arrive at an objective finding.
As much as one loves the environment and is determined to do everything to protect it, and even if one is critical for Israel going to war with Lebanon when Hezbollah rained 4,000 missiles down on the northern half of the country, the process adopted, if one believes in principles of fairness, has to make a detached observer sympathetic to the position of Israel on this question.
Begin with the legal question. Is Israel guilty for the financial costs of the environmental damage, and, perhaps, also the damage to the tourist and fisheries industries, according to international law? The reports all cite international law, but the citations are akin to those of a first-year university student who believes simply that you cite what you perhaps read as proof rather than offering supporting authoritative evidence to give weight to an interpretation or argument. Where domestic law is cited, it is only used as a basis for making a claim without considering whether the claim in general is valid.
There exist both law and legal routes to assess and attribute costs to various parties in order to assess liability and financial responsibility for damage from oils spills. Some of that is domestic law. For example, there is the America‘s Oil Pollution Act or its equivalent in other legal jurisdictions. There is international law. And there is case law in both domestic and international proceedings. However, there is no precedent for the United Nations General Assembly, and the office of the Secretary-General, becoming involved in assessing responsibility and costs for an oil spill.
Section I of the 2014 UNDP “Report on the Measurement & Quantification of the Environmental Damage of the Oil Spill on Lebanon” summarizes the contents on the legal question as dealt with in seven other 2006 and 2007 UN reports on the issue:
• Experts Working Group for Lebanon, Lebanon Marine and Coastal Oil Pollution International Assistance Action Plan, 25 August 2006;
• International Union for Conservation of Nature (IUCN), Lebanon Oil Spill Rapid Assessment and Response Mission Consultancy Report, 11 September 2006;
• Conseil National de la Recherche Scientifique Results of the Scientific Researches Undertaken by the Council in relation with the consequences of the last Israeli aggression on Lebanon (in Arabic), 20 October 2006;
• Food and Agriculture Organization of the United Nations, Lebanon – Damage and Early Recovery Needs – Assessment of Agriculture, Fisheries and Forestry, November 2006;
• United Nations Development Programme, Rapid Environmental Assessment for Greening Recovery, Reconstruction and Reform – 2006;
• World Bank, Republic of Lebanon – Economic Assessment of Environmental Degradation Due to July 2006 Hostilities, 11 October 2007;
• United Nations Environment Programme, Lebanon – Post-Conflict Environmental Assessment, 2007.
The focus (and expertise) of virtually all these reports was to assess damages and the costs for recovery, sometimes including damages unrelated to the oil spill, but not to determine liability. In other words, who has the duty and responsibility for compensation? The first reference is to domestic Lebanese law which is heavily influenced by French law. As in English tort law, it includes the general principle that “any wrongful act which causes prejudice to another person obliges the culprit to indemnify the aggrieved party”. That is, the act must be a wrongful one, there must be a causal link between the wrongful act and the consequences (in this case, of the oil spill), and there is a question of indemnification. In summary, the polluter pays. The 2014 UNDP Report specifically states that it will not go into any of these three questions because the UN General Assembly has already made that determination, in fact, numerous times. So once again, legal analysis is not attempted on the most fundamental issue because there has already been a finding of guilt. Circularity permeates the whole process. A party is guilty because that party has been found guilty.
The 2014 UNDP Report explores whether Lebanon tried to mitigate the damages because, if it did not, then Israel could escape some or all responsibility. The Report holds that, because Israel imposed an almost month-long maritime blockade on Lebanon, that country was unable to exert any effort to mitigate the consequences of the oil spill and, therefore, there was nothing to mitigate Israel’s responsibility. No evidence is cited. No international law on liability for the untoward effects of blockades in cases of hostilities is cited. Israel is simply fully responsible because one of the results of the blockade was, presumably, preventing Lebanon from mitigating the effects of the oil spill — even though there was no effort to determine whether Lebanon made such an effort, including requesting Israel’s cooperation, and whether Israel’s blockade actually prevented mitigation efforts.
How much ought to be assessed against the party which commits the wrongful act? For the totality of the prejudice sustained by Lebanon, a principle applicable to individual or collective disasters. Totality means the restoration in full to re-establish the equilibrium destroyed by the alleged wrongful act had the oil spill not occurred. Prejudices may not just be direct consequences but can include all indirect results, including future estimated or even possible results – such as lost profits and lost opportunity costs – as long as those indirect consequences can be linked to the wrongful act. In addition to indirect costs, there are ricochet effects, for example, the losses suffered by taxi drivers as a result of the loss of tourism which can be connected to the oil spill, or, an even greater ricochet effect, the loss of renovation work because owners of restaurants and hotels did not make their usual improvements because of huge losses suffered as a ricochet effect. However, in French law, moral as well as material costs are not included, such as loss of reputation to the tourist industry in Lebanon.
Given that the guilty party was identified by UN General Assembly resolutions, given this set of guidelines to determine damages, what process can be used? Three possibilities are set forth:
1. A UN agency or a combination of them makes the determination;
2. A panel of independent experts makes the determination;
3. A task force of government experts drawn from the party affected makes the determination.
In the assessment of environmental damages from the Iraqi actions following its invasion of Kuwait in defending its aggression by releasing oil into the Gulf, the Security Council, not the General Assembly, made the determination via a United Nations Compensation Commission that was provided with an interim fund. The Security Council, which has jurisdiction in cases of determining fault in a war, made the decision on how compensation would be handled. None of the options above were used; rather, a special UN agency was created, which was given interim funding to deal with the compensation and separate liability issues from victim compensation. To prepare claims for compensation, the Kuwait government set up a Public Authority consisting of representatives from both government and the private sector, supported by experts, to review any claims and to file the claims before the Claims Commission which would adjudicate those claims.
In adjudicating claims, including intangible assets such as lost business revenues, the losses had to be connected with the action, but, in the case of the Kuwait situation, the action was not restricted to the losses from the pollution caused by the oil spill into the Gulf, but any losses resulting from Iraq’s invasion and occupation of Kuwait. If the latter was used as a precedent for claims by Lebanon as a result of the oil spill, then the accumulation of claims would be far greater than just those caused by the oil spill. In the Iraqi-Kuwait case, environmental claims were given the lowest priority.
Note further that the UN General Assembly started a process to create an international convention with respect to compensation as a result of hostilities between parties where one party is considered to have committed a wrongful act. The UN drafted proposed articles with respect to reparations that were referred the International Law Commission in 2001, but they have never been in force or given any application. Nevertheless, they were used as guiding principles for assessing responsibility.
1. There was never any determination of responsibility for the hostilities;
2. Responsibility for the oil spill was determined independently, in fact, without any determination of responsibility for hostilities;
3. The UNGA lacked jurisdiction for determining responsibility or assessing compensation for environmental damages;
4. The UNGA had never proposed let alone passed a convention dealing with compensation in cases of oil spills;
5. There was no separation in determination of liability and determination of compensation;
6. There was no assessment whether the blockade in fact prevented any mitigation of damages;
7. The process of adjudication of compensation had no independence;
8. There never seemed to be a process for differentiating losses resulting from the hostilities and losses resulting from the oil spill;
9. No rationale was offered for making environmental damages the highest priority whereas they were made the lowest priority in the Kuwait case;
10. There was certainly no assessment or evaluation on the environmental damages suffered by Israel as a result of the hostilities.
The UN cited the following to justify its decision and its previous motions:
• United Nations Conference on the Human Environment, especially principle 7 of the Declaration of the Conference, which requested States to take all possible steps to prevent pollution of the seas;
• the need to protect and preserve the marine environment in accordance with international law;
• the 1992 Rio Declaration on Environment and Development especially principle 16, which stipulates that the polluter should, in principle, bear the cost of pollution.
None of these references come anywhere close to assessing legal responsibility for the financial costs of the El Jiyeh oil spill to Israel. When Professor Richard Steiner, a marine professor at the University of Alaska, who participated in the assessment of the oil spill in Lebanon, asserted that the State of Israel should participate in a full and independent legal inquiry, establish a fund of $1 billion to reimburse all costs for oil-spill response, clean-up and economic losses caused, and implement a comprehensive restoration program, he had offered no legal justification for such a recommendation and had no expertise to make such a determination.
Other UN reports note that assessing blame and damages for environmental disasters were inapplicable when caused as a result of armed hostilities. Further, such provisions, in any case, do not relate to land-based incidents but only pertain to oil spills at sea. The provision for the United Nations Compensation Commission in the case of Kuwait is the only precedent major oil-spill compensation regime for spills arising from armed hostilities. It depended entirely on both the Security Council having jurisdiction and the prior finding of Iraqi responsibility for the hostilities.
Finally, the assessment of liabilities has precedents for other situations of oil spills during armed hostilities. For example, in the current war against IS involving the US and its allies, including Arab allies, on September 23rd, American aircraft bombed refineries and other oil installations in areas of Syria controlled by the Islamic State. In October it became known that the US was considering, as a serious option, bombing the oil pipelines over which IS had gained control, especially since IS generates $2 million per day to fund its aggressive efforts. My guess is that the U.S, and its allies are reticent, not so much because of the potential for environmental damage, but because of the precedent set that would invite sabotage initiatives by IS against American and Saudi pipelines.
In any case, you can make a large wager that neither the U.S. nor any of its Arab allies will be held to account for any environmental damage that takes place as a result of bombings targeting IS-controlled refineries and pipelines.
Tomorrow: The El Jiyeh UN Oil Spill: Financial and Political Fairness