Crimesof War

The testimony of George Claxton, a Vietnam veteran who served in Southeast Asia in 1967, reveals just how widely the United States used Agent Orange. “I took showers in the stuff,” he says. “We had wooden stalls with a tub overhead filled with rainwater that was tinged slightly orange. We would pull the string hanging in the shower and bathe in it. We knew it was Agent Orange because we saw the planes spraying it on the jungle every day. We didn’t think anything of it really and at first we thought, ‘Hell, the army is spraying for mosquitoes.’ ”

Claxton’s experience was not unusual. Between 1965 and 1975, the U.S. military sprayed millions of tons of Agent Orange on the jungles of Vietnam in “ADMs”—airborne “area denial missions” intended to deny cover to the Vietcong and North Vietnamese Army. The strategy worked: large areas of Quang Tri Province along the 38th Parallel and a swath of land in the “iron triangle” of Tay Ninh Province west of Saigon were stripped of all vegetation.

In the wake of Vietnam, there was worldwide concern about the environmental damage caused by U.S. military operations in Southeast Asia. Shortly after the end of the Vietnam War, in 1975, it began to become clear that a disproportionate number of Vietnam veterans were coming down with non-Hogkins lymphoma and skin sarcomas. The Centers for Disease Control would later determine that the cause of these cancers was the dioxins contained in Agent Orange. The extent of the damage to the natural environment of Vietnam as a result of the spraying was also becoming apparent. While no systematic survey of defoliated areas of Southeast Asia has been conducted, the anecdotal evidence is enormous. Huge portions of Quang Tri and Tay Ninh provinces “look like a moonscape” and remain unsuitable for agricultural use, according to Chuck Searcy, the director of a humanitarian program in Hanoi. And Vietnamese doctors have attested to significant increases in birth defects among people in the affected areas.

The major piece of international humanitarian law prohibiting environmental war was drafted in reaction to what took place in Vietnam, and is contained in two articles of the 1977 Additional Protocol I to the Geneva Conventions. Article 35 states that “it is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the environment.” This prohibition is spelled out in detail in two sections of Article 55.

The first of these sections involves the protection of the natural environment. “Care shall be taken in warfare,” it states, “to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition against the use of means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby prejudice the health or survival of the population.” The second provision declares that “attacks against the natural environment by way of reprisals are prohibited.”

Unfortunately, these provisions are more unclear and more ambiguous legally than at least some commentators and activists might have wished. While they impose the obligation to take precautions, they fall far short of a blanket interdiction against certain methods of warfare that may harm the environment. The use of the expression “long-term” is understood to mean decades, not years, so a considerable degree of environmental harm seems to be tolerable under international humanitarian law.

Some further limitations on the ravages of environmental war were secured by the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD), which was opened for signature in 1977—again, largely in response to the American use of defoliants in Vietnam—and was ratified by the United States in 1980. This convention is now accepted, along with Articles 35 and 55 of Additional Protocol I, as the clearest expression of international humanitarian law in the field of environmental warfare.

By the terms of the ENMOD, States agree not to “engage in military or other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury.” In practice, it remains to be seen whether enough ambiguity has been removed from the law to make these provisions serve as an effective way of preventing the most extreme kinds of environmental attacks. These provisions were not in effect at the time of the Vietnam War, so, obviously, they cannot be applied retroactively to what took place then. Some have argued that the Iraqi government’s decision, in the waning days of its occupation of Kuwait in 1991, to set fire to the Kuwaiti oil fields and to purposely dump millions of tons of oil into the Persian Gulf was an instance of such a crime. But since no Iraqi officers were ever indicted or tried for these offenses, the practical impact of the provisions remain unclear.