Terrorism's unintended casualties - Implications for environmental law in the USA and abroad -

Environmental Policy and Law

Volumn 37, Issue 2-3, 2007, Pages 125-139

  Robinson, Nicholas A ^a  

^a PACE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ENVIRONMENTAL IMPACT; ENVIRONMENTAL LEGISLATION; ENVIRONMENTAL POLICY; TERRORISM;

NORTH AMERICA; UNITED STATES;

EID: 34247559252     PISSN: 0378777X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (92)

1. Maximillien Robespierre on 5 September 1793, announced for the Revolutionary government in France, "Let us institute terror as the order of the day."
2. The Oxford English Dictionary defines terrorism as "a policy intended to strike with terror against those whom it is adopted; the employment of methods of intimidation; the fact of terrorising or condition of being terrorised." In contrast, the act of assassination is an act of murder, a traditional criminal offence. In the United States, the act of Timothy Mc Veigh to destroy the federal office building was called an act of domestic terrorism, but from a legal perspective it was an act of murder.
3. The warfare launched in many colonies against European colonial powers to work for their independence involved acts of terrorism. Ronald M. Greenberg, President of the World Jurist Association, notes that "While most of the world agrees on what constitutes an act of terror, and while all agree that the intent of the act is to terrorise others to achieve a goal, the inability to agree on a definition of terrorism stems from an inability to agree upon whether certain causes justify the act and the intent. For this reason, acts which are classified by all nations as crimes and perpetrators who are classified by all nations as criminals lead to the acts being overlooked, the intent being ignored and the perpetrators being reclassified."
4. R.M. Greenberg, "Defining Terrorism: The Humpty Dumpty Syndrome" paper presented at the conference on "Terrorism and the Rule of Law," World Jurist Association, Edinburgh, 21 24 May 2006), at p. 4. Thus, if they prevail, freedom fighters are recognised as patriots and not as terrorists, although they may have used acts of terror in their campaigns.
5. Kofi Annan, Address to the UN General Assembly, 1 October 2001.
6. Presidential rhetoric and Executive Orders about a "war on terrorism" is actually something new, and is not armed conflict against any specific terrorists, but a policy against a practice. Why not proclaim a "war on slavery" or revisit President Lyndon Johnson's "war on poverty"? The USA takes armed action against Al Qaeda, but then labels as terrorists a wide range of political movements that employ acts of terrorism. The USA cannot be at war with all of these, since it ignores the terrorist acts in Central Africa, in Chechnya, in Sri Lanka, in Maoist occupied parts of India and Nepal, in Barcelona, Spain, and elsewhere. It should be recalled that the USA did not speak of a "war on terrorism" when Croatian independence fighters bombed Grand Central Station in Manhattan in 1991. The USA chose to take no response to terrorist acts by Kurds or against Kurds over the years. It must candidly be recognised that the Bush Administration uses its "war on terrorism:selectively, to justify actions it seeks to take, and to avoid being held accountable for actions it should take but does not.
7. Donald W. Goodrich, Chairman of the Board of "Families of September 11," has urged examination of the underlying conditions and facts, and not to use terminology to avert this closer and deeper inquiry. "The intellectual vigour and integrity of which I speak requires semantics with the same virtues. Sadly, much of the discourse in the United States fails this test. It centres nearly exclusively on the expression 'war on terrorism' or its close variant 'war on terror.' Webster and other lexicographers give 'war,' 'on,' 'terrorism' (and 'terror') a variety of definitions each. But the combined use of these words in a single expression, without context, has no clear meaning and in context is usually an obscure emotive inflammatory: Nearly always so when conjoined with 11 September 2001. One wonders at the use of the preposition 'on' to connect the nouns 'war' and 'terrorism' (or 'terror' . Perhaps it is used there to mean 'in the direction of.' But, if 'war' is used in its primary sense, 'armed hostilities,' one would expect the use of the preposition 'against,' not the more passive 'on.' And however one parses it, there are semantic disjunctions when 'war on' is coupled with 'terrorism (or 'terror'). Can 'armed hostilities' in the direction of a 'use' or 'method' of violence against innocent civilians ever succeed, be victorious? There is a non sequitor imbedded in the expression 'War on Terrorism' and it is diversionary."
8. See Donald W. Goodrich, "Confronting Terrorism," pp. 3-4 of a paper presented at the World Jurist Association conference on Terrorism and the Rule of Law, Edinburgh, Scotland, 21-24 May 2006.
9. The conscious focus on "terrorism: And not terrorists, has led to inconsistent policies arguments. It often appears that the Bush Administration's policies equate "terrorism" with other ideologies, and thus is a new variant of the mind-set of the last century in fighting "Communism" or "fascism." A more traditional use of a "war" would be to war on Al-Qaeda, or on Taliban, the specific forces that are waging the armed conflict. The Bush intervention and armed conflict in Iraq was justified on a similarly inconsistent set of policy rationales and legal arguments. See Thomas E. Ricks, Fiasco, The American Military Adventure in Iraq (Penguin Press, 2007).
10. See the paper by Alba Novell, "Terrorism Financing and Techniques of Good Government: Special Reference to a Spanish Case (ETA)," presented at the World Jurist Association Conference on Terrorism and the Rule of Law, Edinburgh, Scotland, 21-24 May 2006. She concludes that the State must engage all parts of civil society in combating terrorist acts, and always do so within the ambit of the rule of law.
11. For instance, the obligations not to target religious and cultural sites during armed conflict. The US has observed these rules militaril in the armed conflict in Iraq or Afghanistan.
12. Jay E. Austin and Carl E. Bruch, eds., The Environmental Consequences of War: Legal, Economic and Scientific Perspectives (Cambridge University Press, 2000).
13. Norman McFadyen (Crown Agent for Scotland), "The Role of the Public Prosecutor in Scotland in the Fight Against Terrorism," Paper presented at the World Jurist Association conference on "Terrorism and the Rule of Law, Edinburgh, Scotland, 22 May 2006.
14. See, e.g. he commentary by Raj Bhala, "Poverty, Islam, and Doha: Unmet Challenges Facing American Trade Law," 36 The International Lawyer 159 (ABA Section on International Law and Practice, 2002), at p. 179: "The challenge is tough in the post-September 11th era. Since then the United States has re-invigorated the dichotomy, putting Islamic countries into one of two camps: Evil terrorists and their rogue-nation supporters (i.e. the fundamentalists), and good allies seeking to bring terrorists to justice (i.e. everyone else). That rhetoric is appealing in the war on terrorism. It is not a basis on which to build a network of trade ties in the war for prosperity." It equally will not allow for effective international cooperation on the vast range of environmental programmes.
15. See the Symposium: Terrorism's Burden on Globalisation," 36 The International Lawyer, pp. 1-139 (ABA Section of International Law and Practice, 2002).
16. Vanity Fair (May 2006), www.vantifyfair.com, Mark Hertsgaard, "While Washington Slept," p. 200, et seq.
17. Agenda 21, paragraph 1.1, in N.A. Robinson (ed.), Agenda 21: Earth's Action Plan, at p. 1 (Oceana Publications, 1993).
18. For example, Catholic Archbishop Henri Tessier of Algeria has observed "If the Arabs had known the same rhythm of development as the Asian dragons, we wouldn't have this extremism." Craig S. Smith, "Christian Shepherd Shines His Light in Islamic Pasture," NY Times, p. A4, col. 3 (22 July 2006).
19. For instance, Section 4(f) of the Transportation Act prohibited routing federally funded highways through parks or historic sites, until in 2005 Congress amended the provision to allow such routing with the consent of the park or historic site manager. Political pressure could be brought on the manager to consent, and the absolute ban was thus weakened.
20. The Baader-Meinhof Gang in Germany, or the IRA in the United Kingdom, or Japanese Red Army attacks at Ben-Gurion airport that killed Puerto Rican Pilgrims in 1972, are but a few of the many and diverse examples one can cite.
21. Terrorists in Colombia and in the Middle East have emulated the Irish Republican Army's tactics. When asked whether Hezbollah's leader, Sheik Nabil Qaouk, was familiar with Michael Collins, the Irish revolutionary in the early 20th century who pioneered guerrilla tactics, said "In substance, yes." John Kifner, "The 1990's, Shadows Waged War," NY Times, p. A6, col. 6 (22 July 2006).
22. A society that values the rule of law, of course, uses law to structure its own response to anti-social behaviour, such as terrorism, regardless of whether the terrorists takes note of the law. It is a means to regulate and control the work of the State itself. See e.g.
23. Todd Zeranski, "Bin Laden calls for Strikes Against US Economy," Bloomberg News, 27 December 2001.
24. Public Law 107-36.
25. Allan Gerson and Jerry Adler, The Price of Terror (New York, Harper Collins, 2001).
26. UNGA Res. 3034 (XXVII) of 18 December 1972; see the report at A/C.6/SR. 1390 (11 December 1972).
27. The United Nations' deliberations on terrorism are set forth in Harris O. Schoenberg, Combating Terrorism: The Role of the UN (Center for UN Reform Education, New Jersey, 2003).
28. The Biological Weapons Convention (CBW), April 10, 1972, - U.N.T.S. -, T.I.A.S. 8,062, 26 U.S.T. 583.
29. See, generally, Allan Russell and John Vogler, Eds., The International Politics of Biotechnology: Investigating Global Futures (Manchester University Press, 2000).
30. On bioterrorism, see Kathleen A. Delaney, "Impact of the Threat of Biological and Chemical Terrorism on Public Safety-Net Hospitals," 36 The International Lawyer 21 (ABA Section of International Law and Practice, 2002).
31. Chemical Weapons Convention (CWC), January 13, 1993, - U.N.T.S. -, 32 I.L.M. 800.
32. See, generally, Michael Boethe, Nastalino Ronzitti, and Alan Rosas, The New Chemical Weapons Convention - Implementation and Prospects, (Kluwer, 1998).
33. Although worried about North Korea and Iran and their ambitions to develop a nuclear arsenal, the USA has an ambivalent relationship with the IAEA and signals a reluctance to embrace expansion of the Comprehensive Nuclear Test Ban and the Anti-Ballistic Missile Treaty as it pursues its options to deploy a star wars capability. There is a need to return to President John F. Kennedy's 1963 Test Ban Treaty, and give it universal application. The destruction of all weapons of mass destruction continues to be a high inter-governmental priority, made all the more so because the availablility of weapon grade materials allow the small bomb or the dirty bomb to be developed by terrorist.
34. Timothy K. Webster, "The Future of the Chemical and Biological Weapons Conventions," 16 Natural Resources & Environment 187 (ABA Section on Energy, Environment and Resources, 2002). The author notes that "It is hardly comforting that the two countries to suffer the chemical or biological acts discussed above [1995 nerve gas attacks in Japan by the Aum Shinrikyo cult, and 2001 anthrax attacks on postal and other facilities in the USA] are both signatories to both the BWC and CWC, as are most of the countries on the State Department's list of state sponsors of terrorism."
35. Id. at 191.
36. See the cogent argument of Craig Hall, "The Wake-Up Call of Terrorism," 36 The International Lawyer 125 (ABA Section on International Law and Practice, 2002)., arguing the underlying social conditions that breed terrorism, ignorance and poverty, need to be a part of the comprehensive effort to avert terrorism.
37. See the papers at the 2nd Colloquium of the IUCN Academy of Environmental Law, at the University of Nairobi, Kenya, October 2004, published by Cambridge University Press (2006, forthcoming).
38. Law suits against President Bush's first EPA Administrator, Gov. Christine Todd Whitman, for failing to provide adequate environmental protection in the wake of the terrorist attacks, are pending in the US District Court (Southern District of NY), in 2006.
39. There is some evidence that, when local communities understand their dependence on environmental conditions, and those who undertake terrorism depend on local community support, there may be a greater likelihood that terrorists may themselves avoid unnecessary harm to the environment; thus environmental education may be a component of sound environmental protection policy and law. The 5th World Parks Congress of IUCN, Durban, 2004, heard papers describing how terrorist guerrilla fighters have left parks lands protected when local communities, and local park guardians, educated them and explained why the parks need to be protected.
40. E.O., 13,231, 66 Fed. Reg. 53,063 (2001).
41. Tim De Young and Adam Gravely, "Coordinating Efforts to Secure American Public Water Supplies," 16 Natural Resources & Environment 146 (ABA Section on Energy, Environment and Resources, 2002).
42. See Michael J. Penders and William L. Thomas, "Ecoterror: Rethinking Environmental Security After September 11," 16 Natural Resources and Environment 159 at 160
43. (citing The Washington Post), (ABA Section on Energy, Environment and Resources, 2002).
44. Despite this fact, the US Department of the Interior has invested substantial resources in seeking to anticipate terrorism in this dimension. See William G. Myers III and Karen E. Mouritsen, "The Department of the Interior's Role in National Emergencies," 16 Natural Resources & Environment 177 (ABA Section on Energy, Environment and Resources, 2002).
45. Paul Gaukler, D. Sean Barnett and Douglas J. Rosinski, "Nuclear Energy and Terrorism," 16 Natural Resources & Environment p. 165 at p. 171 (ABA Section on Energy, Environment & Resources, 2002).
46. See Stephen Gidiere and Jason Forrester, "Balancing Homeland Security and Freedom of Information," 16 Natural Resources & Environment (ABA Section on Energy, Environment, and Energy, 2003) at 139.
47. Tim De Young and Adam Gravely, "Coordinating Efforts to Secure American Public Water Supplies, 16 Natural Resources & Environment, at p. 151.
48. Michael J. Penders and William L. Thomas, "Ecoterror: Rethinking Environmental Security After September 11," 16 Natural Resources & Environment at p. 162 : "Better communication between federal, state and local authorities will be critical to reducing the threat of ecoterror." The authors espouse better use of the Basel Convention and other international agreements to better cope internationally as well.
49. Stephen Dycus, "Osama's Submarine: National Security and Environmental Protection After 9/11," 30 Environmental Law and Policy Review 1 (William & Mary School of Law, Fall 2005).
50. DOD Dir. No. 4717.1, Environmental Security ¶14 (24 February 1996).
51. DOD Dir. No. 4715E, Environment, Safety, and Occupational Health #¶1i] 4.6 (9 March 2005).
52. Dycus, op. cit., at 5.
53. Id., at p. 9.
54. Id., at pp. 11-39;
55. see also Felicity Barringer, "Pentagon Is Pressing to Bypass Environmental Laws for War Games and Arms Testing, NY Times, p. A15 (27 December 2004).
56. Dycus, op. cit., at p, 54.
57. 42 US CODE § §11001-11050.
58. Beth A. Henning, "EPCRA Emergency Plans: What to Consider Post-September 11," 16 Natural Resources & Environment 172 (ABA Section on Energy, Environment and Resources, 2002).
59. This act permits a citizen to seek judicial review of any governmental action that the citizen asserts is harming the environment. The burden then shifts to the government to prove that its act is not harmful to the environment.
60. 42 U.S.C. Section 4321, et seq.
61. California Environmental Quality Act, Natural Resource Code.
62. NY State Environmental Quality Review Act (SEQRA), Article 8 of the Environmental Conservation Law.
63. European Union EIA Directive, 1985.
64. 40 C.F. R. Part 1500, Section 1502.22(b). See also Robertson v. Methow Valley Citizens Council, 490 US 332 (1989) discussing the worst case analysis.
65. CV-03-5018 (E.D. Wash., 13 May 2005).
66. 345 F. 3rd 520 (8th Cir., 2003).
67. 449 F. 3d 1016 (9th Cir., 2006).
68. 2006 Mass. Super. LEXIS 390 (Suffolk Co. Sup. Ct., No 05-0109-BLS2, 31 July 2006).
69. 6 Misc. 3d 814, 793 NYS 2d 670 (Sup. Ct., NY Co., 2004), aff'd in part and modf'd in part, 795 NYS 2d 577 (1st Dept. 2005).
70. Wall Street Garage Parking Corp. v. Lower Manhattan Development Corp. 5 Misc. 3d 1027A, 799 NYS 2d 165 (Sup. Ct NY Co., 2004).
71. Clive Walker, Guide to the Anti-Terrorism Legislation (2002).
72. Price Anderson Act, upheld by the US Supreme Court in the Duke Power Case.
73. "These losses were covered by domestic and foreign insurers or 'retained' by policy holders or the uninsured, as follows: (1) workers' compensation carriers covered approximately $5 billion (approx. 4,500 claims); (2) life carriers covered approximately $6 billion (up to 2,995 claims); (3) property lines covered about $12 billion (approx. 8,300 personal property claims, 12,250 commercial property claims, and 4,500 business interruption claims); (4) casualty lines will cover an estimated $18-20 billion (the total number of life, at most 2,995 claims) and injury (at most 2250 claims) losses that will be the subject of suits as yet unknown; to date about 70 plaintiffs have suits on file); and (5) uninsured losses range from $7 to $9 billion and will be paid directly by individuals, businesses, institutions, organisations and governmental entitles." Ronald R. Robinson, "Underwriting Terrorism Risk - The Specific Peril Solution," a paper at p. 5 delivered at the World Jurist Association Conference on Terrorism and the Rule of Law, Edinburgh, 21-24 May 2006.
74. Kim Quarles, "TRIA's Impact on the Viability of Terrorism Insurance," paper delivered at the World Jurist Association's Conference on Terrorism and the Rule of Law, Edinburgh, Scotland, 21-24 May 2006.
75. Public Law 107-297.
76. Ibidum, Section 102(1)(A).
77. Ronald R. Robinson, "Underwriting Terrorism Risk - The Specific Peril Solution," op. cit., supra note 64.
78. Ibid at p. 23.
79. 3rd Int'l Conf. For Unification of Penal Law (Brussels), 26-30 June 1930, Actes de la Conference (1931).
80. The logic here seems clear. As Ronald R. Robinson has noted: "A 'Criminal Act' is a course of conduct, whether intended, negligent or prohibited by law, that results in the infliction of bodily injury, death or damage to tangible or intangible property, or the taking of the same without consent, by an individual, group of individuals or private and public entities, including local, regional or national governments. One whose conduct meets this definition of a 'Criminal Act,' has not committed a 'Terrorist Act' or an 'Act of War,' per se, and is engaged in a 'Crime," as opposed to "Terrorism' or War,' per se. One who engages in a 'Criminal Act' is a 'Criminal,' not a "Terrorist" or Warrior,' per se, as defined here."
81. See R.R. Robinson, "A Defining Moment-Ought and Can We Distinguish 'Terrorist Acts." 'Criminal Acts' and "Acts of War" Under the Rule of Law?", a Working Paper delivered in World Jurist Association Conference on Terrorism and the Rule of Law, Edinburgh, Scotland, 21-24 May 2006. The author concludes that the rule of law requires society to honour traditional human rights, and thus use established criminal law wherever possible, rather than fashioning ad hoc rules for terrorism, which tend to deny basic rights of liberty.
82. See, e.g., the US Patriot's Act, supra note 19. The suspending of the great writ of habeas corpus is an example of how terrorism laws can trample on hard won liberties.
83. See the most recent update for the EU Plan of Action on Combating Terrorism, on line at http://ue.eu.int/uedocs/cmsUplaod/Euplan16090.pdf.
84. Benjamin E. Griffith, "The State and Local Response to Terrorism In Light of 9/11 and Katrina," a paper at p.18 presented to the World Jurist Association Conference on Terrorism and the Rule of Law, Edinburgh, Scotland, 21-24 May 2006.
85. Cho, Byung-Sun, "Emergence of an International Environmental Criminal Law?" 1 UCLA Journal of Environmental Law and Policy 11 (2000/2001)
86. K.F. McCallion and H.R. Sharma, "Environmental Justice Without Boarders: The Need for an International Court of the Environment to Protect Fundamental Environmental Rights: 32 George Washington Journal of International Law and Economics 351, 2000).
87. See, by analogy, J. G. Lammers, "International Responsibility and Liability for Damage Caused By Environmental Interferences," 31 Environmental Policy and Law 42 (ICEL, Feb. 2001).
88. Cf. M.K. Murphy, "Achieving Economic Security with Swords as Ploughshares: The Modern Use of Force to Combat Environmental Degradation," 39 Virginia Journal of International Law 1181 (1999).
89. Chander Mehta M., "Making the Law Work for the Environment," 2(4) Asia Pacific Journal of Environmental Law 349 (1997),
90. and Chapter 11 in volume 1 of D. Craig, N. Robinson, and Koh, K.L., "Judicial Decisions and Alternative Dispute Resolution," in Capacity Building for Environmental Law in the Asia and Pacific Region (Asian Development Bank, 2002).
91. See M. C. Mehta v. Union of India, in Charles O. Okidi, ed., Compendium of Judicial Decisions on Matters Related to the Environment, vol. 1, National Decisions (UNEP/INDP, 1998), pp. 259-274.
92. E. Page, "Theorising the Link Between Environmental Change and Security," 9 Review of European Community and International Environmental Law 33 (2000).