Ukraine Symposium – Oil Tankers as “Environmental Time Bombs,” or Not

Last month, Russian forces used two anti-ship missiles to target an abandoned cargo tanker adrift in the northern Black Sea. The vessel was loaded with around 600 tons of diesel fuel. An earlier Russian missile airstrike had already disabled the same vessel during the initial invasion in late February, causing her to remain damaged and without a crew for over four months. According to the Interfax-Ukraine News Agency, the abandoned tanker, with its thousands of barrels of diesel fuel, constituted an “environmental time bomb.” This post examines the incident and the existing environmental protections at issue under the Law of Armed Conflict. It then provides a historical context for determining whether targeting oil tankers is sufficiently likely to cause long-term environmental damage to make attacks on them illegal in an armed conflict.

Background

The Millennial Spirit is a small (2200 ton) Moldovan-flagged fuel oil tanker with a crew of about a dozen. On 25 February, the day after Russia invaded Ukraine, Russian warships shelled her and set her ablaze. Maritime tracking services put her last broadcast location at just over 12 nautical miles from Odessa, which places her just outside the territorial sea of Ukraine during the initial attack. Videos of her aflame were available on Twitter that same day. A Ukrainian rescue craft reportedly rescued the crew, who were apparently all Russians. Several of the crew members suffered serious burn injuries.

Ukrainian authorities state that the vessel has been adrift in the Black Sea for over four months due to the ongoing conflict and Russia’s blockade of Ukraine’s ports. There she remained until last month, when she was hit during an airstrike by a Russian Kh-3 missile. The Naval Institute Guide to World Naval Weapon Systems describes this as the first supersonic anti-ship missile that could be launched by tactical aircraft. The vessel’s exact location at the moment of the second strike is not publicly known at this time.

Setting aside the obvious jus ad bellum violations of Russia’s aggression, there is no obvious military justification for this attack, and the Russian authorities apparently have not offered any explanation. It is also unclear whether the tanker was actually a lawful military objective, which would be a prerequisite to a lawful targeting. However, assuming that the vessel was a valid military objective and the strike met the criterion of military necessity, should Russia have been prohibited from striking it based on environmental concerns? What is the appropriate balance of military necessity when considering the impact of thousands of barrels of oil being set ablaze or spilling into the sea?

Development of Existing Protections

Protecting the environment has increasingly become a significant concern during an armed conflict. Indeed, knowingly launching an attack that will cause “widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated” is considered a war crime by the International Criminal Court.

Almost all existing environmental protections post-date the Vietnam War’s Operation Ranch Hand, during which the U.S. sprayed over 20 million gallons of various herbicides like “Agent Orange,” covering over 4 million acres of land in the span of a decade. While the Environmental Modification convention of 1976 sought to address the modification of the environment as a means of warfare, a few provisions in Additional Protocol I of 1977 (AP/I) were designed to protect the environment as the victim of warfare. These have even been determined to have become customary international law by the ICRC’s 2005 study. However, these environmental protection provisions remain controversial. Several of the major powers, including the United States, France, and Great Britain, have all expressed some degree of reservation at their inclusion in AP/I, and some have spoken out against their inclusion as customary law. Nonetheless, most States (including Russia and Ukraine) are bound by them.

When discussing the means and methods of warfare, Article 35(3) of AP/I states the “basic rule” as follows: “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 natural environment.” While “widespread” and “severe” remain somewhat vague terms, the Commentary to the Additional Protocols clarifies the understood meaning of “long-term” to be a period of decades or longer. Given the conjunctive, Article 35(3) only prohibits attacks that are expected to cause severe, widespread, and decades-long damage to the environment. This prohibition is restated again in Article 55, but there it is couched in terms of protecting the environment as means to preserve the health and survival of the civilian population.

Some scholars agree with the UK’s Law of War Manual that the only difference of substance is “while Article 35 relates to all methods of warfare whether on land, sea, or in the air wherever in the world they are utilized, Article 55 only relates to environmental damage on the territory or in the territorial sea of a state party to the conflict.” Would that make a difference in contemplating a strike on an oil tanker outside the territorial sea of Ukraine? None at all. Both provisions prohibit means or methods expected to cause widespread, long-term, severe damage. But would the burning or spilling of large amounts of diesel fuel oil meet this threshold?

Burning or Spilling Oil

The damage caused by oil to the environment was contemplated when drafting AP/I’s environmental protections. The Commentary to AP/I indicates that there were delegations which wanted the heightened protection of Article 56’s “works or installations containing dangerous forces” to apply to “oil production installations and storage facilities for oil products.” However, this was not met with enough support for incorporation into the list with dams, dykes, and nuclear electrical generating stations, though oil facilities would obviously still be subject to the prohibitions on widespread, long-term, and severe damage. As the Commentary states, “there is no doubt that Article 55 ‘(Protection of the natural environment)’ will apply to the destruction of oil rigs resulting in oil gushing into the sea and leading to extensive damage such as that described in that article. As regards the destruction and setting alight of refineries and petroleum storage facilities, it is hardly necessary to stress the grave danger that may ensue for the civilian population.” This Commentary on oil gushing in the sea or being lit on fire, published in the late 1980’s during the Tanker Wars, serves as an ominous oracle of what would happen next.

The Gulf War

In 1991, Iraqi forces intentionally leaked over 240 million gallons of oil into the Persian Gulf, and upon retreat from Kuwait, set more than 700 oil wells ablaze as they left. It remains “one of the worst environmental disasters in recent memory.” To put the Russian strike against the Millennial Spirit into perspective, she was first struck while carrying around 600 tons of diesel fuel, which is over 4 thousand barrels. The amount of oil that Iraqi forces intentionally released into the gulf was over 4 million barrels. When they lit the Kuwaiti oil fields on fire, oil burned at a rate of about 5 million barrels per day, and some fires continued to burn for several months. The destruction cannot be overstated. In fact, in February of 1993 the United Nations published resolution 47/34:

Expressing its deep concern about environmental damage and depletion of natural resources, including the destruction of hundreds of oil-well heads and the release and waste of crude oil into the sea, during recent conflicts.

Noting that existing provisions of international law prohibit such acts, [and]

Stressing that destruction of the environment, not justified by military necessity and carried out wantonly, is clearly contrary to existing international law.

Similar sentiments regarding proportionality in any destruction of the environment were echoed a few years later in the ICJ’s 1996 advisory opinion on The Legality of the Threat or Use of Nuclear Weapons: “States must take environmental considerations into account when assessing what is necessary and proportionate in the pursuit of legitimate military objectives.” Regardless of ratification of any specific treaty, the issue of proportionality—balancing excessive loss against military necessity—is embedded in environmental protections for every nation. The San Remo Manual on International Law Applicable to Armed Conflicts at Sea, published around the same time as these other documents, was the very first IHL text to explicitly include “damage to or destruction of the natural environment” as part of the definition for “collateral damage.” Unsurprisingly, this 1995 manual cites how “the experience of the Gulf War (1991) showed very clearly that there was at least an emerging rule forbidding the use of the marine environment as an instrument of warfare or making it an object of attack during an armed conflict at sea.”

That manual, specifically applicable to the maritime arena, sets the “basic rule” as follows: “Methods and means of warfare should be employed with due regard for the natural environment taking into account the relevant rules of international law. Damage to or destruction of the natural environment not justified by military necessity and carried out wantonly is prohibited.” These requirements apply equally to surface ships, submarines, and aircraft in an armed conflict at sea.

Prohibited vs. Proportional

It is generally accepted, then, that the test for lawfulness is the one reflected in the ICRC’s customary Rule 43: “Launching an attack against a military objective which may be expected to cause incidental damage to the environment which would be excessive in relation to the concrete and direct military advantage anticipated is prohibited.” So, if the environmental damage is excessive compared to the anticipated military advantage, the strike is unlawful. Now what about when the military advantage is existentially high, but the damage to the environment is expected to cause widespread, long-term, and severe damage? This highlights the objections to these provisions. For those states party to AP/I and who acknowledge their environmental protections as customary law, they would be bound by ICRC Rule 45: “The use of methods or means of warfare that are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment is prohibited.”

For a nation like the United States, however, the concern is that these absolute prohibitions “fail to acknowledge that use of such weapons is prohibited only if their use is clearly excessive in relation to the concrete and direct overall military advantage anticipated,” as expressed in the DoD Law of War Manual. The United States would make these strikes always a matter of proportionality, never prohibition. The U.S. response to the ICRC’s Customary IHL Study uses the following illustration:

Suppose that country A has hidden its chemical and biological weapons arsenal in a large rainforest, and plans imminently to launch the arsenal at country B. Under such a rule, country B could not launch a strike against that arsenal if it expects that such a strike may cause widespread, long-term, and severe damage to the rainforest, even if it has evidence of country A’s imminent launch, and knows that such a launch itself would cause environmental devastation.

Therefore, the United States, and nations with similar reservations, find these provisions ove­rly broad and ambiguous, and therefore do not accept this maximum cap on proportionality calculations. But is this distinction on proportionality and prohibition even necessary for our discussion on oil tankers? According to the UK Law of War Manual, the environmental protection provisions “do not automatically prevent certain types of military objectives such as nuclear submarines or supertankers from being legitimate targets.” But if a supertanker was a military objective, how much environmental damage caused by striking it would be necessary for it to become an unlawful target? And even then, could it ever do so much damage that it became a prohibited target under AP/I’s severe, long-term, and widespread analysis?

Long-Term Oil Spills?

During the Gulf war, millions of barrels worth of oil were spilled into the sea, and millions of barrels worth of oil were burned per day. The damage was certainly widespread and severe, but was it long-term? The world was rightfully horrified and assumed that this would cause irreparable damage for the foreseeable future. But as Prof. Dinstein states, “since then, many observers have concluded that – while the damage caused by Iraq was undeniably widespread and severe – the ‘long-term’ test (measured in decades) was not satisfied.” This was also the official finding of the U.S. Department of Defense in their Report to Congress on the Conduct of the Persian Gulf War. Boothby draws the same conclusion in The Law of Targeting, stating that “while the widespread and severe elements of the rule would seem to be satisfied, the evidence suggests that the long-term element was not breached. This may provide some assistance to those seeking to interpret the rule and apply it in practice.” Accordingly, the environmental devastation of the Gulf War is a benchmark for oil damage.

Setting aside the burning oil fields and looking solely into the sea: if there was ever an oil spill that would trigger these “long-term” prohibitions, it would have been that one. It is estimated that the oil slick was roughly 100 miles by 40 miles, and at certain places was 5 inches thick. That was the world’s largest oil spill. Several times larger than Exxon Valdez, and even bigger than Deepwater Horizon. So would Russia’s sinking the Millenial Spirit and spilling her oil be considered an “environmental time bomb?” As discussed in The International Law of the Sea by Rothwell and Stephens, tanker spills like Exxon Valdez have attracted a great deal of attention:

“However, such oil spills account for only about 10 percent of the oil released into the environment each year, and tend to be mostly localised in their impacts. Moreover, although some local effects from these casualties may be evident across many decades, a major proportion of the initial pollution is relatively quickly degraded in the marine environment. A much greater volume of oil entering the marine environment comes from discharges from the normal operation of vessels…”

In perspective, the damage done by an oil tanker spill, while concerning, might not warrant the dramatic shock that we should reserve for an “environmental time bomb.” Even if this term was just contemplating the pollution caused by the burning of oil, rather than its spillage, it does not even begin to compare with the devastation of the Kuwaiti oil fields. Thus, the environmental risk of striking the Millennial Spirit is a factor to consider, but the strike would not be prohibited on that basis.

Targeting Time-Bombs

For those who have not ratified the Additional Protocols or expressed reservations to the environmental protections, and who have continued to speak out against deeming their (still controversial) prohibitions “customary,” sinking an oil tanker will always be a potentially lawful target if proportionality allows and military necessity dictates. This would be true whether bearing the small load of the Millennial Spirit, less than 5,000 barrels, or even a supertanker, which holds about 2 million barrels. As Professor Gary Solis summarizes in The Law of Armed Conflict, “a supertanker whose sinking would cause untold environmental damage could be targeted if [it] were used for military purposes, as long as military necessity and proportionality considerations were satisfied.”

However, the same would almost certainly be true for those nations bound by the environmental protections of AP/I. It does not seem remotely plausible for the sinking or burning of a supertanker to cause more environmental damage than Iraq caused in the Gulf War, which has been widely determined to have fallen short of the “long-term” test for damage to the environment that remains widespread and severe for decades. Oil spills unrelated to armed conflicts have caused significant damage in diverse and sensitive ecosystems around the globe, but none with damage of the caliber that would trigger these prohibitions, had they applied. Accordingly, as Boothby concludes: the application of traditional targeting principles like necessity and proportionality apply with environmental protections, but “the attack of super-tankers is not, however, prohibited by international law.”

Conclusion

There are myriad environmental concerns that can arise in preparing for and prosecuting an armed conflict. When AP/I ultimately excluded oil production installations and storage facilities from the works and installations containing dangerous forces, the Commentary notes that “extending the special protection to such installations would undoubtedly have posed virtually insoluble problems.” While these discussions contemplated oil damage being subject to prohibition under Article 55, historical analysis has since provided the benchmark of application in the Gulf War. Compared to fields of burning oil and flooded gulfs, even industrial supertankers remain potential valid military objectives, let alone a small abandoned tanker in the Black Sea. As always, military necessity and proportionality govern.

Our environment is precious. We have a duty to steward it well. Having spent time in the Black Sea for a military exercise, I want it to remain as vibrant as ever. But even Jean Pictet said “Nothing is more dangerous than ‘unbridled humanitarianism’ acting from the best intentions, but remote from reality.” Accordingly, we must accept that if a tanker of this size ever became a valid military objective, the Law of Armed Conflict would consider it a potential target, not a prohibited time-bomb.

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LT Mark Jessup, JAGC, USN is an Assistant Professor of Military Law at the United States Naval Academy, where he teaches Operational Law and the Law of Armed Conflict. The views expressed in this article are solely those of the author, and do not reflect the official policy or position of the Department of Defense, Department of the Navy, or the U.S. Naval Academy.

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