Ecocide and Genocide in Iraq : International Law, the Marsh Arabs and Environmental Damage in Non-International Conflicts

In 1991, after the first Gulf War, the Marsh Arabs of southern Iraq rose up against the Hussein government, with U.S. encouragement. The rebellion failed; in retaliation the government embarked on a massive water diversion project to drain the wetlands. In 1970 the wetlands covered nearly 11,000 square kilometers; today they cover fewer than a thousand. The Marsh Arabs whose ancestors had lived in the wetlands for five thousand years were forced to flee; many died. The drainage of the wetlands was a deliberate and calculated act of genocide and ecocide. At the time, Iraq was a party to several international agreements that made its acts illegal. The various environmental treaties to which Iraq was a party and customary international law regarding transboundary environmental harm provide little recourse for the Marsh Arabs, although they may provide the basis for claims to be pursued by neighboring states. Of the other treaties to which Iraq is a party, the Genocide Convention most clearly prohibits acts such as those committed by the Iraqi government against the Marsh Arabs. Common Article 3 of the Geneva Conventions addresses individual murders and extrajudicial killings of Marsh Arabs, but probably does not address the problem of the destruction of the wetlands as a whole. The Covenants on Economic and Cultural Rights and Civil and Political Rights provide similar protections, and provide that a people may not be deprived of its means of subsistence, as the Marsh Arabs have been. Treaties to which Iraq is not a party address the specific problem of environmental modification used in war or as an instrument of persecution of an ethnic group. ENMOD and the Rome Statute prohibit environmental warfare of the type engaged in by Iraq, but it is unlikely that the provisions of either have been accepted as custom in the practice of states. Protocols I and II to the Geneva Conventions of 1949, however, are probably expressions of customary international law, and may even express jus cogens or non-derogable norms. Of these, Protocol I addresses environmental harm far more directly. Under Protocol I, the Iraqi government's action against the southern Mesopotamian wetlands was illegal because its effects were widespread, long-lasting, and severe, and because it was a prohibited reprisal against the natural environment