In this Article, the author addresses the question of whether Iraq's destruction of Kuwaiti oil fields constitutes a violation of the laws of war, particularly with respect to article 53 of the Fourth Geneva Convention, known as the Civilians Convention. After an introductory section evaluating the amount and nature of destruction suffered by the Kuwaiti oil industry, the author discusses whether article 53 covers destruction of state-owned oil fields. Although the specific language of the article appears to favor coverage, the history behind article 53 suggests that it protects property of a sort different than the state-owned property destroyed by Iraq.
The author then discusses whether article 53 applies to destruction by an occupying power in response to an external military challenge to occupation. In reviewing the history of article 53's application to external challenges to occupation, the author concludes that this article does not apply beyond situations of destruction inflicted during uncontested occupation.
Next, the author reviews the military necessity exception of article 23(g) of the Hague Convention for Regulations, which prohibits destruction of enemy property. The author discusses three precedential situations in which the meaning of article 23(g)'s exception was illuminated. This provision is discussed in the context of illegal wars of aggression, reviewing possible justifications for the destruction of Kuwait's oil resources. The author examines various reasons to interpret article 23(g) narrowly and contrasting reasons to interpret the provision broadly. In this section, the author concludes that, even though the exception in article 23(g) is broad enough to include the aggressive nature of the Iraqi war, Iraq may be hard-pressed to justify its destruction of Kuwaiti oil resources because of its objective of territorial aggrandizement.
Finally, the author states that Protocol I of 1977 is an extension of the laws of war and could be applicable to the destruction of Kuwaiti oilfields. This Protocol, however, is not universally recognized as part of customary law, and so the destruction must be dealt with according to the Hague and Geneva laws of armed conflict.
Rex J. Zedalis,
Burning of the Kuwaiti Oilfields and the Laws of War,
24 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol24/iss4/4