AUSTIN: Protocol One was an amendment to the 1949 Geneva Conventions that codify the law of war. It was created in 1977 in the aftermath of the Vietnam War as a specific response to concerns about how that war was conducted. Among many other things, it contains a provision that prohibits widespread, long-term, or severe environmental damage during war time.

CALLISON: The question was: what concerns happened during the Vietnam war that prompted the protocol to be...

AUSTIN: The concerns were U.S. defoliation practices during the war, dropping of Agent Orange to clear jungle along river banks and elsewhere in the country.

CALLISON: You said on the phone, too, that ENMOD was created as a result of the Vietnam War. How, why was that named?

AUSTIN: ENMOD, the Environmental Modification Convention, was a separate treaty that was drafted at the same time as Protocol One, also the post-Vietnam era. It shares some language with Protocol One. It also prohibits widespread, long-term, or severe environmental damage. But, unlike Protocol One, ENMOD tries to get at the deliberate manipulation of natural processes environmental forces during war time.

At the time, there were reports that the U.S. had attempted to seed clouds over North Vietnam to induce floods on the ground. And, that's exactly the kind of behavior that the drafters had in mind.

Fromthere, it kind of gets more into science fiction territory. The textbook example is a country that would drop a nuclear bomb to start an earthquake or to activate a dormant volcano. So, as a result of that, we don't see these techniques very often. It's not a much practical application in most conflicts.

CALLISON: So, you would say that Protocol One is more effective than ENMOD?

AUSTIN: Well, as a question to whether either Protocol One or ENMOD have yet been effective: Protocol One is arguably stronger. It would apply to more kinds of cases.

CALLISON: Do you, I mean, can you envision using ENMOD? I mean, has there ever been a case where ENMOD actually prevented or has called into question on someone's actions, besides Vietnam, I mean?

AUSTIN: Prior to the passage of ENMOD, they were targeting, during World War II, there were targeting of dams, for example, and that's often cited as a sort of practice would still arguably could happen as the release of a natural force then damages a civilian population, and that might fall under the auspices of ENMOD.

CALLISON: What about when Saddam Hussein was lighting the wells on fire as he went out, that was...

AUSTIN: Immediately after the Gulf War, once the extent of the damages became known, there was a lot of debate about how to sanction Iraq for its actions, what would be the best legal mechanism for doing so? And, a lot of people thought that the deliberate setting of the oil well fires, the deliberate oil spills, were exactly the kind of damage that ENMOD and Protocol One were designed to prevent. The problem there is that Iraq is not a party to either of those treaties. And, even the US has never gotten around to ratifying Protocol One.

So, it left proponents in this argument arguing that both treaties had become so widely accepted that they were part of customary international law. That's probably a valid argument, but it's a bit weaker one. In the end, what the UN decided to do in that case was to base Iraq's liability on its aggression against Iraq, against Kuwait.

In the end, what the UN decided to do was base Iraq's liability on its aggression against Kuwait in violation of the UN charter. And, as a result, the Security Council passed a resolution which held that Iraq was liable for all actions resulting from the invasion and occupation of Kuwait, including the environmental damages, but also including property damage, and injuries to individuals and so on.

So, there's a UN commission that sits in Geneva, and it's still continuing to hear claims resulting from the war, and has not yet reached some of the environmental claims that have been filed.

CALLISON: So, do we have any sense, then, since, I mean, neither, I mean, you said the U.S. hadn't signed, and Iraq hadn't signed Protocol One, so it wasn't really, didn't really come into effect. Do we have any sense of, do we need stricter laws? How do we fix that for future conflicts?

AUSTIN: There are a number of proposals right now for how to improve international law in this area. There's some fairly modest ones, some that would call for the creation of a new convention that declares certain ecologically sensitive areas just to be off-limits and, thus, protected from military activities in the same way that hospitals and churches are supposed to be protected under international law.

A second recent idea would be to use the new international criminal court, which was chartered last summer, to prosecute individuals for environmental war crimes. And, in fact, the authority for that exists in the court's charter. The problem there is that the US has steadfastly opposed creation of the criminal court, and so it's future is uncertain right now.

And, finally, there are those individuals who would claim that what is needed is a complete overhaul of the law of war in this area, and who would call for the drafting of a new convention with the topic of eco-side that would create institutions or mechanisms to deter and punish this kind of behavior.

CALLISON: You said that there was a possibility that you could make certain ecological areas off limits. I mean, what kind of sensitive areas are you, are being looked at?

AUSTIN: The idea of protecting ecologically sensitive areas during war time already exists as a draft proposal. The IUCN, the World Conservation Union, which administers laws related to protected areas and biodiversity, has a draft convention which would call for the UN to use the same criteria that they use for designating national parks or environmental areas of international interest in declaring them as off limits during war, so it would be area-based protection.

CALLISON: We've talked on the phone a couple of times about the lawsuit that Yugoslavia was trying to bring against, I guess it was against NATO. Can you explain a little bit about what was going on there?

AUSTIN: Several weeks into the bombing, Yugoslavia filed an emergency action in the world court against the U.S. and nine other NATO countries involved in the bombing. They can't, they couldn't sue NATO in the world court because the court only has jurisdiction over individual nations, but there were ten separate lawsuits. And, the suits allege that these countries and the bombings were in violation of the Geneva Conventions in Protocol One. That they were targeting the civilian population, they were destroying objects that were necessary for the support of the civilian population, which is a violation of Protocol One, and they also isolated and identified instances, typically refinery bombings, bombings of chemical plants, that they claim violated the prohibition against widespread, long-term, and severe environmental damage.

CALLISON: Okay. Are there any real strict definitions of what widespread, long-term, severe environmental damage is?

AUSTIN: Definitions are the main problem in both of the existing treaties, in both ENMOD and Protocol One. Neither of the treaties, by its terms, defines "widespread," "long-lasting," and "severe." There's some commentary that suggests that "widespread" would be an area of hectares or acres, that "long-lasting" would be for a term of years, possibly even decades. And, that "severe" would need to elicit some extreme threat to the eco-system or to the population's health. But since these have never been tested or practiced or in a court of law, all those terms are, essentially, up for grabs. And, this is, elicit is one of the criticisms of the current legal regime.

CALLISON: So, what happened with the lawsuit which they brought it to...

AUSTIN: The World Court declined to rule on the merits of the lawsuit. They, instead, found that they lacked jurisdiction over any of the countries, and particular, against the U.S., which refused to consent to the World Court's jurisdiction, and the Court's jurisdiction is based on the consent of the nations who are parties to a lawsuit.

CALLISON: Do you think if they had consented, that there would have been a lawsuit?

AUSTIN: If they had consented and the court attempted to apply, say, the standards of Protocol One to the damage in Yugoslavia, there would be a strong case, say, that certain isolated incidents, like the bombing of a chemical complex in the city of Panchaba, which released a toxic cloud into the air and caused an oil spill in the Danube, seems to me the argument would hinge over whether that then constituted widespread, long-term, or severe environmental damage.

There are other treaty provisions that are applicable, but they usually allow military necessity to be cited as a defense. So, you would doubtless have the administration or its representatives arguing that, in the case of a dual use target, such as an oil refinery or chemical complex, the military necessity justified the strike unless their should be no liability.

CALLISON: If there had not been any environmental laws, such as Protocol One, in mind, do you think the US would have fought, US and NATO would have fought the war in Kosovo differently? I mean, would they have been more specific on targeting environmental sensitive areas?

AUSTIN: The U.S. military has internalized a number of the norms, even without the U.S.'s ratification. They've internalized a number of the norms in Protocol One and ENMOD into their regulations and practices. The manuals they actually use to train when officers are learning how to select targets. And, they have a great deal of pride in their ability to discriminate among targets. So, I think one argument is that military policy would be fairly discriminating and that any deterrent effect is coming from those regulations regardless of the existence of the international norms. It's certainly true that stronger international norms would, in turn, force the regulations to be stronger and could have reduced even further the damages that we see in Kosovo.

CALLISON: After military activities, such as in Kosovo, does the United States have any obligation to provide aid for clean-up efforts, or does NATO have any obligations? And, are there any laws that say, well, after environmental damages, you've got to clean up?

AUSTIN: Given the current state of international law, I think it would be difficult to argue that there's any legal obligation for the U.S. to engage in environmental cleanup. We're not party to Protocol One. Even if Protocol One is applied, there'd still be the threshold question as to whether the damage was sufficiently widespread, long-term, or severe.

However, it seems to me, given the reports that are coming out of Panchaba about serious exposure to the population, the health results resulting from that, you could argue that the U.S. has a strong moral obligation for clean-up. And it certainly might also be a wise policy decision in the same way that the Marshall Plan was good policy after World War II, even though it was prompted by any particular legal obligation.

CALLISON: Okay.

AUSTIN: I guess I'd continue. The problem right now is that our policy is exactly the opposite. The administration's position is that there should be little or no assistance for reconstruction until the Milosovic regime is out of power. And, it seems to me that, if environmental clean-up could be characterized as humanitarian aid, and I think it probably should, then it could proceed immediately, even given the current policy.

CALLISON: Okay. Do you foresee any time in the future where, I mean, I guess we've kind of already touched on this question, going back to the military, or going back to the sensitive eco-systems that are being kept out of, or possibly going to be kept out of military -- I can't get it out.

AUSTIN: A lot of syllables to straighten together there. You should see how many times I practice widespread, long-term, and severe.

CALLISON: But, you're doing it so well.

Uh, future conflicts, is it possible for the environmental laws to be written so that military intervention has to be, or it can't proceed because of ecologically sensitive areas? I mean, we've kind of already touched on this question. Was there anything you wanted to add on?

AUSTIN: Well, I think that's actually a much larger question that gets into the whole area of how international law or methods of dispute resolution could be written to avoid conflict altogether. Whether or not the environment is threatened.

The proposal I referred to, the proposal to designate certain areas, I think, has some promise in the same way as the whole history of the law of war, has been a gradual narrowing of military activity. It was only in the 1950's that cultural properties, such as churches or historical monuments, were then considered to be out of bounds.

And, you could argue that the next logical step is to do the same thing for wetlands or other internationally important areas. And, so, you could at least restrict the realm of the conflict even if you can't get at the root causes of it.