The El Jiyeh UN Oil Spill: Financial and Political Fairness

The El Jiyeh UN Oil Spill: Financial and Political Fairness

by

Howard Adelman

As discussed in the last blog, whether in Anglo Tort law or in Article 1382 of the 1804 French Civil Code (“Droit of la Responsibilité”), the principle for calculating compensation is similar. In summary, that code says: “Tout fait quelconque de l’homme, qui cause à autrui un dommage, oblige celui par la faute duquel il est arrivé à le réparer.” He who causes the damage, must pay. In English, “any loss caused to a person through the behaviour of another must be repaired by the person whose fault it was that the loss occurred.” The extended version in English is loosely translated as: Reparation to the victim of a crime or a tort must, in principle, be responsible for the complete damage the victim has suffered. Moral damage is taken into account as well as material damage. Indirect damages must be taken into consideration, but only as long as they are revealed as connected to the fact of the tort. In principle, the current damage done at the time only comes into consideration for the calculation of the reparation. In exceptional circumstances, a judge may take into account future damages if, firstly, the realization is certain and if, in addition, the means exists to assess in advance the exact amount of those damages.

Costs include not only environmental damage, but costs to fisheries and the tourism industry. Hundreds of suits have been filed as a result of these provisions against other offenders in a variety of oil spills. None have become issues for the United Nations General Assembly, especially ones that occurred as a result of hostilities. The issue is not about the principle for assessing a claim. The issue is about the venue and the procedure.

Further, since this is a claim made under international law and not domestic law, one principle for assessing the justice of a claim, particularly when the claim is about damages consequent to hostilities, is to discuss the purpose of the damage caused. In WWII, there were over 300 attacks against oil storage depots and refineries according to British and American bombing surveys, the last one in the European theatre against a refinery in Norway in April of 1945. Assessments after the war compared the effects of targeting the oil infrastructure. Compared to other targets, including the bombing of transportation, especially trains, the attacks on oil refineries and oil storage facilities infrastructure in areas controlled by Nazi Germany were considered to be the only unequivocal successes in damaging the German war effort, a conclusion which reaffirmed the opinion not only of Hermann Gӧring, but also Luftwaffe commander Adolf Galland in his book, General der Jagdflieger. Compared to WWII, the two attacks by Israel were pinpricks.

But what about the environmental consequences? Let’s put the El Jiyeh oil spill in comparison to the costs and size of other oil spills. The $850 million dollar total liability estimate included about 25% for cleanup costs. That amount can be compared to the environmental damage costs of the Exxon Valdez oil spill which was at least ten times larger. The latter’s cleanup costs, in a much more difficult and expensive terrain and covering 2,100 km of coastline rather than 170 km, were $3.5 billion. Although the Lebanese oil spill was often equated in the media with the Exxon Valdez spill, the cleanup costs in Lebanon were much less, just over $200 million, in this case an amount reasonably proportionate to the Exxon Valdez cleanup costs.
For another comparison, the costs to Saudi Arabia for the cleanup from the First Gulf War up to 2011 was $700 million Saudi riyal (over $180 million) in environmental rehabilitation in addition to the $45 million contributed internationally. However, compare the 240-336 million gallons of oil spilled from the Sea Island terminal and destroyed tankers in the 1991 Kuwait Gulf War by Iraq, supposedly to foil a US marine landing and to prevent the oil from falling into American hands, with the 5 million gallons spilled in the El Jiyeh disaster. The resulting oil slick in the First Gulf War was over 100 miles long, 42 miles wide and as much as 13 cm. thick in some places, several times the size even of the Exxon Valdez oil spill. Just to cap the 700 wells and douse the fires cost Kuwait $1.5 billion in addition to the $225 million cost to clean up the environmental disaster. The Jiyeh spill was 5% the size of the Gulf spill, yet the cleanup costs were said to be about equivalent.

Take another example, this time from the Second Iraq War in 2002. Rather than an oil spill, consider the much more serious damage to the ozone layer by 60,000-80,000 combat missions that released 2,000 tons of ozone-destroying halons and stealth bombers that released freon fuel additives which, together, were estimated to be the equivalent of the global civilian releases destroying the ozone layer for three months. In neither the first nor the second Iraqi wars was there ever any attempt to attribute responsibilities and costs. No claims were made by the United Nations General Assembly against one of its members for these environmental calamities that occurred in the course of hostilities.

The oil spill can also be placed in the context of commercial as well as military environmental disasters:

Year Millions Location Cause
of
Gallons

1978 68.7 Amoco Cadiz ship grounding in storm
1979 88.3 Coast of Tinidad Tobago two tankers colliding
1983 80 Nowruk Oil Field Persian Gulf collision with a platform
1983 80 Coast of South Africa, Soldana Bay Castillo de Bellver
1988 43 Coast of Nova Scotia break up of Odyssey in storm
1989 84 Alaska’s Prince William Sound Exxon Valdez struck Bligh reef
1991 80 Coast of Angola shipboard explosion
1991 42 Coast of Genoa Haven Tanker explosion
2010 185 Gulf of Mexico Deep Water Horizon blowout

The El Jiyeh oil spill was relatively small, less than 5 million gallons, compared to these oil spills ranging from 42 to 185 million gallons. The point of listing these non-military incidents is not to downplay the Lebanese oil spill, but to use these disasters to ascertain how liability is estimated and assessed. In commercial disasters, evidence is collected and analyzed, testimony is heard by a detached party, legal precedents and regulations are cited and, in contrast to the way the issues are handled by the media (the example of Anderson Cooper’s sensationalist coverage of the Deepwater Horizon oil spill is often cited), there is a strenuous effort to avoid sensationalism by those assessing costs.

In the 2010 Gulf of Mexico Deep Water Horizon blowout, BP was required to pay $1 billion, just over the costs for which Israel was held by the UNGA to be liable for an oil spill that was 1/57th the size of the Deep Water Horizon spill.

In the case of these commercial oil spills, there is never an effort at repeating year after year another step in the evaluation process. The way the General Assembly handles the procedure is to insert in each motion a requirement that the Secretary-General report back on results and future action, thereby ensuring another future annual resolution and another opportunity for publicizing Israel’s alleged wrongs. This issue is about distraction from the real culprit, shaming and blaming to make a political point, not the collection of reparations.

When the motion is softened as a “request”, countries can vote for the motion seeing nothing wrong in asking Israel to pay for the damages. Nor do they have to confront the outrageously one-sided nature of the process or the very issue of whether the UN General Assembly was or is an appropriate place to assess blame and costs. Further, the repetition of one UN motion after another, to the exclusion of any other jurisdictions re parallel cases or any comparisons, allows the issue to remain in an isolated silo, in the same manner as the Palestinian refugees, who are treated totally differently than any other refugees. And those who were victims of the environmental disaster suffer the same fate as the Palestinian refugees – compensation is delayed endlessly because the issue of compensation and liability have not been separated. I can find no information that compensation has ever been paid to victims of the El Jiyeh oil spill.

There is another problem. The costs to the fisheries, mostly resulting from the blockade imposed by Israel against Lebanon from 12 July to 9 September 2006, are all viewed as costs to be attributed to the oil spill. The costs associated with loss of restaurant businesses because of the apprehension of Lebanese who arguably would not go to seafood restaurants or eat seafood because of possible effects on their health, are conflated with losses to restaurants because, during a war, there was very little tendency to want to risk eating in a public venue.

Israel is an active participant in the Barcelona Convention for the Protection of the Mediterranean Sea and works with all parties to the convention to promote its aims. Israel offered to work with others in a fair and judicious process to assess costs and liabilities of all environmental damages from the war. The offer was never taken up.

Instead of a separate procedure for determining compensation owed to victims and one for determining the liability for that compensation, the two issues were conflated in the El Jiyeh oil spill. The result is impotency in providing relief to victims in the name of making a political statement. The politicized process has been characterized by initial hyperbole, subsequent significant inflation – monetary, environmental and political – a one-sided assessment (the environmental damage done to Israel by its enemy, Hezbollah, was totally ignored), a singular focus that is decontextualized in both time and space. Precedents are ignored. The legal process is caricatured. The result is politics in its worst form, not justice.

As a final comparison, earlier this week I wrote about the break in the Eilat/Ashkelon oil pipeline 20 km. north of Eilat that took place last Thursday near Be’er Ora. There the spilled oil was also heavy crude, the most difficult to clean up. Initially, the original estimate of the amount of the spill was 1 million litres, but it has since been increased to 3 million litres (700,000 gallons). That means the Arava oils spill was one/seventh of the size of the El Jiyeh spill which, in turn, was one-tenth the size of the average commercial oil spill that attracts widespread media coverage. In both the Arava and the El Jiyeh cases, nature reserves were threatened and the cleanup had to take place swiftly in a very delicate eco-system. So one can also imagine that if the Israeli blockade did prevent a cleanup of the spill for up to a month, how much more disastrous the Lebanese spill, already seven times larger, was than the Israeli spill where there was almost panic that the oil would spill into the delicate ecosystem of the Gulf of Aqaba/Eilat. In the Lebanese oil spill, much of the five million gallons flowed into the Mediterranean Sea.

However, when costs of the cleanup are compared, the Israeli cleanup is expected to cost 17 million Israeli shekels or a little over $4 million, almost one-fiftieth (1/50th) of the cost of the Lebanese cleanup, costs which were so much higher than the costs of most other oil cleanups. Compared to the $850 million assessed against Israel as liability costs, the costs of the Israeli oil spill seem a pittance. The costs in the Arava spill will be, if the estimates are correct, 1/200th of the liability assessed against Israel and 2% of the cleanup costs in the Lebanese oil spill. So I am torn between being appalled at the extent of devastation caused to Lebanon in 2006 and upset at the gross injustice in both procedure and substance that seems so outrageous and disheartening.

But I should not be so shocked. After all, I worked in the late eighties and early nineties with the UN on early warning systems to anticipate and prevent hostilities and was part of the investigating team in the inquiry into the UN role in the Rwanda genocide where I learned firsthand of both the fickleness and impotence of the United Nations.

Even though the adoption of the “Oil Slick on Lebanese Shores” Resolution by the General Assembly is deliberately worded as a request because the UN General Assembly lacks jurisdiction and also to gain as many votes for the resolution as possible, Dr. Nawaf Salam, the Permanent Representative of Lebanon to the United Nations, after the passage of the resolution, stated that the UN ruled that, “Israel has to pay for the damages inflicted on Lebanon in the immediate aftermath of El-Jiyeh attack.” The politics of the resolution is what is important, certainly not the compensation to victims. The Lebanese Permanent Representative to the UN envisioned the resolution as merely paving the way for further compensation in other areas of damage (health, ecosystem services as habitat, potential ground water contamination, and marine diversity) from the 2006 war.

The unique presumption is that Israel alone is liable for environmental damages caused during the 2006 Lebanese War or in any hostilities. Further, only environmental damage to Lebanon and not to Israel is to be considered. Israel is blamed as the aggressor even though, on 12 July 2006, Hezbollah’s military wing, as an exercise in Islamic “resistance”, launched rockets across the Lebanese border with Israel targeting the town of Shlomi and a military outpost at Shebaa Farms. Hezbollah also initiated a cross-border attack against two IDF Humvees, killing five Israeli soldiers and capturing two others. The objective of the Hezbollah aggression was ostensibly to free Arab prisoners held in Israeli jails. Israel retaliated by ground, air and sea attacks. Israeli navy gunships bombarded an electric power station on the coast at Jiyeh that resulted in the oil spill. The naval blockade to prevent the resupply of weapons to Hezbollah, which had fired about 4,000 rockets at northern Israel, may possibly have prevented a speedy cleanup. Security Council resolutions had called for full respect for the Blue Line by both parties and full implementation of the Taif Agreement, of resolutions 1559 and 1680 that required the disarmament of all armed groups in Lebanon. In spite of all this, Israel is considered the aggressor and liable for all costs resulting from the oil spill.

This is not justice. This is propaganda. It is enough, or almost enough, to make a peacenik like myself vote for Harper’s Tories in the next election for its principled stand on this issue at the UN — if it were not for the Harper government’s systematic destruction of the independence of the knowledge base of the Canadian civil service, its disregard of the environment, the lack of attention and progress on substantive issues of concern to aboriginal peoples, an absence of any real initiative to help refugees, and so much more.

Lebanon: The UN El Jiyeh Oil Spill Resolution

Lebanon: The UN El Jiyeh Oil Spill Resolution

by

Howard Adelman

[Note: 1 metric tonne of fuel oil = approx. 7 barrels = almost 318 gallons.]

This morning I will continue to examine the Palestinian-Israeli conflict through my annual regional survey of the Middle East, now focused on Lebanon. I will also continue to focus on the conflict through an environmental lens. This is not merely because of the angle I took on Jordan and the story of the recent oil spill in Israel because of a fractured oil pipeline. Last Friday (19 December 2014) the UN General Assembly voted to request that Israel “promptly” pay $856.4 million (often rounded off to $850 million) in damages, as a result of the oil spill caused when, on 13 and 15 July 2006, the Israeli Air Force (IAF) launched two air strikes which targeted and destroyed the oil storage tanks near the El Jiyeh electric power plant 30 km. south of Beirut which resulted in the burning of 55,000 tons of heavy fuel oil and the spill of 10,000-15,000 tons (up to 5 million gallons) into the eastern Mediterranean, polluting Lebanon’s shoreline for 170 km, two-thirds of Lebanon’s coastline. (Some UN resolutions claimed the damage covered the entire Lebanese coastline, in which case it would, inevitably, have included the Israeli coast, which it did not.) The incident is generally referred to as the Jiyeh Oil Spill (JOS).

Of the 46 environmental impacts, nine included littoral pollution, impact on marine biodiversity (especially rocky biogenic reefs and Palm Islands Nature Reserve where 100 oiled birds were observed), air pollution from El-Jiyeh fire, marine sediment impact from sunken oil, soil pollution from deposited contaminants of fuel burning at El-Jiyeh, 2), impact on seawater quality from the oil spill and the soil impact at El-Jiyeh site affecting plants and ecosystem from fuel burning. Rocks were covered in black sludge right up until the southern part of Syria killing fish and endangering the habitat of endangered species such as marine loggerhead turtles (Caretta caretta) and green turtles (Chelonya mydas).

Initial reports on the extent and depth of the damage were hyperbolic and UN resolutions continued that tone even though the United Nations Environmental Program revised its initial estimates and minimized the long-term damage. For example, it reported that the sediment from sunken oil was not nearly as bad as originally feared and left no significant long-lasting impact. Similarly, seawater quality was not degraded significantly or for very long. Further, the UNEP report stated that routine stress from untreated sewage, boating and other activities had damaged the Lebanese marine environment far more than the oil spill.

There have been a series of eight UN General Assembly resolutions previously dealing with this oil spill, the first two, a resolution adopted by the Second Committee of the UN, 22 November 2006 and a resolution adopted by the General Assembly on 20 December 2006, and the latest previous one, res. 68/206 on 20 December 2013. They are all very similar except this one designated a dollar figure.

Various UN and international agencies have been apprised and become involved on the issue, including the United Nations (FAO), the World Conservation Union (IUCN), the United Nations Development Programme (UNDP), the United Nations Environment Programme (UNEP), the World Bank, and UNEP/Mediterranean Action Plan/Regional Marine Pollution Emergency Response Centre for the Mediterranean Sea (REMPEC) in addition to the Lebanese government. Under various rubrics, such as environmental protection, biodiversity, sustainable economic development, human health protection, fisheries protection, reservation of tourism and various other so-called relevant general themes, resolutions along the same lines have been introduced and passed by the UN since 2006. But the almost billion dollar figure seemed to catch enormous attention.

If you google “Jiyeh oil spill”, the reports of the UN decision assessing Israel for over $850 million in damages will be reflected in citations from almost every media outlet in the world. There are hundreds, if not thousands, of stories this past week. Although the issue has come up in the United Nations General Assembly many times before, never has it been so widely reported, most often with little context, especially about the 2006 war between Hezbollah and Israel. Even though the resolution is non-binding, and even though it is recorded as a “request”, even though the UN General Assembly has no authority to levy fines or costs from an environmental disaster, the usual impression is that the United Nations voted overwhelmingly to find Israel guilty of the oil spill and responsible for all costs connected with it. Clearly, the figure of almost a billion dollar assessment caught the attention of the media.

Israel has not been held liable for the deaths of 1,200 Lebanese during that war. But it is being held financially responsible for an environmental disaster. A 2007 Secretary General’s Report on the oil spill reported that the damage caused was $729 million although the original damage claimed by Lebanon, including clean-up costs and damage to the Lebanese economy, was $203 million. The latest costs have been corrected to allow for inflation, but do not include interest on the total monies claimed. Further, these are only the alleged costs to Lebanon. For example, expenditures by Japan and Norway, which participated in the clean-up, cost $1.8 million. The Canadian International Development Agency spent $35,587 in a follow-up survey.

These costs do not include the outlays incurred by other international agencies and other countries and NGOs that helped with the cleanup, including Israel that cooperated with the United Nations Environmental Program. However, in the 2014 resolution, the Secretary-General was asked to conduct further studies to quantify environmental damage sustained by neighbouring countries (e,g, Syria, Turkey and even Cyprus presumably), ensuring the issue will come before the UN General Assembly next year.

Routinely, Israel, the United States, Canada and Australia vote against the resolution along with shifting numbers of Micronesian states. Mr. Mally, the US delegate in 2006, put the American position clearly, a position which has been repeated ever since. After expressing the American delegation’s condolences to the people of Lebanon for the tragic loss of Industry Minister Mr. Pierre Gemayel and the United States support for the Lebanese people’s desire to live in peace, the U.S. registered its criticisms for the “one-sided and unbalanced language and placed demands on one party to the conflict while failing to acknowledge the role of those responsible for initiating the hostilities in Lebanon in the summer of 2006. It was Hizbollah that had provoked the conflict with its incursion into Israel on 12 July. That fact was not acknowledged in the draft resolution.” The U.S. regretted “the pollution of the shores of Lebanon…However, the Committee had important responsibilities and should not be used to advance one-sided and unbalanced views. In particular, it was inappropriate for the Committee to take a position on Israel’s responsibilities to compensate Lebanon for damage caused during the course of an armed conflict.”

Canada opposed the resolution because it argued, and has always argued, that the UN General Assembly was an inappropriate place to take up a matter of legal and financial liability.

Israel insisted that the issue was politically motivated and no consideration was given to the context of the war, the initial attacks by Hezbollah, the kidnapping of Israeli soldiers, the fires caused in northern Israel by Hezbollah that caused massive environmental damage. Certainly there was no consideration for Israel’s statement in its defence by Ilan Fluss, the Israeli delegate who called the resolution

a blatant attempt to politicize an issue of environmental concern and paint Israel, once again, as the unjust aggressor. It joined the litany of one-sided resolutions that flowed out of the General Assembly each year. The Committee must not allow politicization to infiltrate its work, as it distracted attention from issues of substance and relevance. The draft resolution omitted a crucial detail relating to the context of the events described. It did not mention the entire reason for the conflict — namely, that on 12 July 2006 Hizbollah terrorists had crossed an internationally recognized border into Israel and kidnapped and killed Israeli soldiers. Had the Government of Lebanon exercised its sovereignty and fulfilled the conditions demanded of it by Security Council resolution 1559 (2004), the conflict would not have occurred. But the Government of Lebanon had been derelict in its duty and irresponsibly allowed the growth of a ‘state within a state’, and now the peoples and land of Lebanon and Israel were paying the price.

In response to Hizbollah’s attack, Israel had done what any other country would have done: defend and protect the lives of its citizens and eliminate the impending threat. As 4,000 Katyusha rockets had rained down on Israeli towns and citizens, it had been Israel’s moral duty to defend its people. The obligation of a responsible Government was first and foremost to its citizenry. The same could not be said for the Government of Lebanon, which had ignored its people and its land and allowed terrorists to hijack both.

That was not to say that there was no reason for concern regarding the environmental health and vitality of Lebanon’s coast. Professional agencies — including United Nations bodies such as the United Nations Environment Programme (UNEP) — were assessing and addressing the situation on the ground, in ways that would accomplish far more than the draft resolution. Moreover, if the sponsors were earnest in their desire to address the development ramifications of the conflict, they would have mentioned the more than half a million trees and 52,000 dunams of forest that had burnt down in Israel as a result of fires caused by Hizbollah rockets; the 25 Israeli cement and asbestos buildings that had been damaged, polluting an area of 20,000 square metres; or the direct hit by a Katyusha rocket on a sludge-thickening plant in Tzafat. The omission of reference to those environmental catastrophes in Israel proved that the draft resolution was an act of political demonization. Israel urged those Member States that believed in authentically addressing the challenges and responsibilities of the Committee to distance themselves from yet another act of partisan politicking. That was not the way to deal responsibly with matters requiring genuine attention.

Almost all other countries supported the resolution with very few abstentions and, also, very few speeches, none of which addressed the complaints of the countries that voted against. Though the dollar figure helped garner the headlines, the resolution was clearly about politics, for the Prime Minister of Lebanon used the occasion to welcome the action and to call on the UN to force Israel to stop violating Lebanese territory and to retreat from the Shebaa Farms, a small strip of disputed land at the intersection of the Lebanese-Syrian border and the Israeli-occupied Golan Heights, the strategically located Kfarshouba Hills, once the home of the second largest village in south Lebanon on the borders of Israel and Syria in the Golan Heights, now largely destroyed. The village has been repeatedly attacked by Israeli forces in 1967, 1970, 1972, 1982, 2006. In May 2000, following the Israeli army withdrawal from Lebanon, the UN certified that Israel has withdrawn fully from all Lebanese territory.

The third area the Prime Minister of Lebanon complained about was the north part of the Ghajar village. Bibi, backed up by an Israeli cabinet decision, promised to hand the control over the area to UNIFIL on condition that the Lebanese Army protect the vicinity north of the village, while UNIFIL would be deployed in the village itself to deal both with Israel’s security concerns and the disputed claims over the territory between Lebanon and Syria. Ghajar was under full Syrian control before the 1967 war, including the northern part that Israel is being asked to return to Lebanon.

Contrast this political performance with Lebanese Prime Minister Najib Mikat’s response to the indictment by a US-backed Special Tribunal for Lebanon on the 2005 assassination of former Premier Rafiq Harari, along with 20 others in a massive car bombing, that named four members of the Lebanese resistance movement of Hezbollah. The Lebanese Prime Minister then insisted that the evidence was not conclusive and that, “Every individual is innocent until proven guilty in a court of law.” He went further by showing Israeli unmanned video footage and played recorded messages of alleged “fifth columnists” to claim that Israel was responsible for the attack, even though no motive was even suggested why Israel might want to kill an enemy of Hezbollah.

Tomorrow: The El Jiyeh Oil Spill: Legal, Financial and Political Fairness