Oil spills: Is­rael’s cold shoul­der

Is­rael is re­quested to pay Le­banon $856 mil­lion for oil spill dam­ages in­flicted dur­ing the July War

Executive Magazine - - Contents - By Jeremy Ar­bid

In De­cem­ber 2014, the United Na­tions Gen­eral As­sem­bly en­dorsed a re­quest to Is­rael to com­pen­sate Le­banon for en­vi­ron­men­tal dam­ages to the lat­ter’s coastal and marine ter­ri­to­ries fol­low­ing an oil spill. While the en­dorse­ment does not pro­vide bind­ing mea­sures, it is the first time that the Gen­eral As­sem­bly has in­cluded a com­pen­sa­tion fig­ure — eight pre­vi­ous res­o­lu­tions had not. In reach­ing this point, Le­banon has worked to iden­tify its legal op­tions jus­ti­fy­ing Is­rael’s re­spon­si­bil­ity for the spills — its next step will be to de­ter­mine the scope of its ar­gu­ment and in which ju­ris­dic­tion to pur­sue it.

RES­O­LU­TIONS AND POL­I­TICS

The first such de­ci­sion, ask­ing Is­rael to com­pen­sate Le­banon for an in­terim fig­ure of $856 mil­lion, re­sulted in the Gen­eral As­sem­bly vot­ing 170–6 in fa­vor of the res­o­lu­tion — Is­rael, the United States, Canada, Australia, Mi­crone­sia and the Mar­shall Is­lands all voted no. The com­pen­sa­tion re­quest is in re­gard to oil spills from Is­raeli Air Force at­tacks on oil stor­age fa­cil­i­ties dur­ing the 2006 war. The res­o­lu­tion also ac­knowl­edged com­ments from an Au­gust re­port by UN Sec­re­tary Gen­eral Ban Ki-moon, not­ing “The Sec­re­tary Gen­eral ex­pressed grave con­cern at the lack of any ac­knowl­edg­ment on the part of the gov­ern­ment of Is­rael of its re­spon­si­bil­i­ties vis-à-vis repa­ra­tions and com­pen­sa­tion.”

Ac­cord­ing to a state­ment re­leased by Le­banon’s Per­ma­nent Rep­re­sen­ta­tive to the UN, Nawaf Salam, “Le­banon con­sid­ers this to be a ma­jor progress, es­pe­cially [since] a fig­ure has been put for­ward as a ba­sis for com­pen­sa­tion us­ing a clear and legal method of cal­cu­la­tion.” Though Gen­eral As­sem­bly res­o­lu­tions are not legally bind­ing — UN Se­cu­rity Coun­cil de­ci­sions are — they do gen­er­ally re­flect world opin­ion says Nasri Diab, a lawyer study­ing Le­banon’s legal re­course. As such, a state­ment ob­tained by Ex­ec­u­tive from the Is­raeli Mission to the United Na­tions re­jected the res­o­lu­tion, stat­ing that it “has long out­lived the ef­fects of the oil slick, and serves no pur­pose other than to con­trib­ute to in­sti­tu­tion­al­iz­ing an anti-Is­rael agenda at the UN.”

Pol­i­tics aside, the en­vi­ron­men­tal ef­fects of the spill are not to be triv­i­al­ized. The de­struc­tion of sea­side oil stor­age tanks in Jiyeh, some 30 kilo­me­ters south of Beirut, spilled oil into the Mediter­ranean which then spread up the coast­line of Le­banon and into Syr­ian wa­ters, suf­fo­cat­ing marine life, destroying fish­ing, breed­ing grounds and fauna and flora, both on­shore and off.

Yet what does Le­banon hope to achieve from th­ese legal pro­ceed­ings? Is it in pur­suit of a moral judge­ment against Is­rael or does the gov­ern­ment of Le­banon ac­tu­ally ex­pect Is­rael to pro­vide fi­nan­cial com­pen­sa­tion for en­vi­ron­men­tal dam­ages? What does seem clear, as in­di­cated by Is­rael’s staunch re­ac­tion to each de­ci­sion reached by the Gen­eral As­sem­bly, is that if a bind­ing res­o­lu­tion were reached, it would open a can of worms to all com­pen­sa­tion li­a­bil­i­ties for the dam­ages caused by Is­raeli ag­gres­sion against its neigh­bors dat­ing all the way back to the coun­try’s in­cep­tion in 1948.

EN­VI­RON­MEN­TAL DAM­AGE

Just a few days into the July War of 2006, Is­raeli air force planes swooped into Le­banon, bomb­ing the Jiyeh power sta­tion and its oil stor­age fa­cil­i­ties, spilling more than 15,000 met­ric tons of heavy fuel oil into the sea. An­other 55,000 tons stored on­site burned, caus­ing a plume of black smoke re­port­edly vis­i­ble from

60 kilo­me­ters away. It was a “ma­jor dis­as­ter” ac­cord­ing to a 2009 pa­per for the Na­tional Coun­cil for Sci­en­tific Re­search — a public re­search in­sti­tute in Le­banon. The oil ex­tended nearly 3,100 square kilo­me­ters shortly af­ter the spill, reach­ing the north­ern coast of Le­banon — “from both vol­ume and geo­graphic per­spec­tives, most of the Eastern Mediter­ranean basin was af­fected,” the re­search con­cluded. In the months fol­low­ing the spill, sur­vey­ing by the Ital­ian Coast Guard of oil sink­ing to the sea bot­tom off the Jiyeh coast was mea­sured to cover an ex­panse of 50,000 square me­ters, and that oil “oc­cu­pied ev­ery space be­tween the rocks.”

Green Line, a lo­cal en­vi­ron­men­tal NGO, de­scribed the oil spill as cat­a­strophic with “tremen­dous neg­a­tive en­vi­ron­men­tal, so­cial and eco­nom­i­cal [ef­fects] both [in] the short term and long term,” adding, “It dam­aged marine ecosys­tems, de­stroyed fish­er­men’s liveli­hoods and ren­dered coastal ar­eas life­less.” The United Na­tions En­vi­ron­men­tal Pro­gram’s 2007 re­port had a sim­i­lar con­clu­sion, say­ing that the “spill re­sulted in sig­nif­i­cant con­tam­i­na­tion of the shore­line.”

Marine life suf­fered as a con­se­quence; in­ver­te­brates such as crus­taceans and al­gae were cov­ered in oil and pop­u­la­tion re­cov­ery is ex­pected to take sev­eral years. No sig­nif­i­cant losses were re­ported among sea birds, but fauna for the birds was smoth­ered, af­fect­ing mi­gra­tory pat­terns. Le­banon’s coast­line — a breed­ing sanc­tu­ary for sea tur­tles to nest and hatch their off­spring, such as the Green Tur­tle species — was heav­ily af­fected as were breed­ing wa­ters for sharks and Bluefin Tuna. In ad­di­tion marine plant life suf­fo­cated where the oil spill blocked sun­light.

Richard Steiner, an en­vi­ron­men­tal con­sul­tant with Oa­sis Earth, de­scribed the en­vi­ron­men­tal dam­ages caused by the spill to be quite se­ri­ous. Though Steiner has not stud­ied the long term ef­fects of the spill since his ini­tial re­search for a 2006 re­port com­mis­sioned by Le­banon’s Min­istry of En­vi­ron­ment and the In­ter­na­tional Union for the Con­ser­va­tion of Na­ture, he ac­knowl­edges that, “We know that large marine oil spills can have very long term eco­log­i­cal ef­fects. And hu­man health was cer­tainly af­fected by the smoke plume from the burning oil.” Steiner also con­cluded that dam­age can take time to show, cit­ing the Exxon Valdez spill in Alaska as an ex­am­ple, “Some fish pop­u­la­tion col­lapses did not oc­cur un­til 3 years af­ter the ini­tial spill.”

For Diab, the com­pound­ing fac­tor of the spill was due to Is­raeli neg­li­gence — their naval, land and air block­ade of the Le­banese ter­ri­tory in­ten­si­fied the dam­age, “The peo­ple who could have mit­i­gated the spill could not do their job at that time be­cause of the block­ade. For long weeks the spill was there with­out the pos­si­bil­ity to clean it up.” Steiner, cor­re­spond­ing with Ex­ec­u­tive via email, added, “Cer­tainly, if there had been a prompt and full scale re­sponse to the spill, far less dam­age would have oc­curred.”

In­deed, as Steiner wrote in his re­port pub­lished one month af­ter the spill, the Is­raelis would not al­low even aerial ob­ser­va­tions. “I asked the French Em­bassy in Beirut for sup­port to con­duct an aerial sur­vey with their re­lief he­li­copters along the coast, to as­cer­tain the ex­tent of re­main­ing off­shore oil, and to bet­ter guide what re­sponse op­tions might be nec­es­sary. Af­ter sev­eral at­tempts by the French am­bas­sador as well as [the] Euro­pean Union to se­cure clear­ance from Is­rael for this flight, Is­rael re­fused to grant clear­ance at that time.”

DONOR SUP­PORT

In the im­me­di­ate af­ter­math of the spill, funds to aid Le­banon in its cleanup were rel­a­tively minis­cule. As part of a pre­vi­ous res­o­lu­tion Le­banon had agreed that the Le­banon Re­cov­ery Fund — a fund to aid Le­banon in its re­cov­ery and re­con­struc­tion — would host the Eastern Mediter­ranean Oil Spill Restora­tion Trust Fund that would re­ceive any funds ear­marked for the cleanup. The for­mer fund re­ceived nearly $46 mil­lion in con­tri­bu­tions from 2006 to 2008 with roughly an­other $6 mil­lion added in 2013 by Ger­many. Af­ter fac­tor­ing in an­other $3 mil­lion for in­ter­est, to­tal con­tri­bu­tions amounted to just over $54 mil­lion — the lat­ter fund re­ceived zero.

Sec­re­tary Gen­eral of the United Na­tions, Ban Ki-moon, had urged donors in pre­vi­ous res­o­lu­tions to pro­vide fund­ing specif­i­cally to clean up the spill and mon­i­tor the re­cov­ery, but to date no con­tri­bu­tion has been made to the fund ac­cord­ing to com­ments re­ceived by Ex­ec­u­tive from Rony Gedeon, Mon­i­tor­ing and Eval­u­a­tion Of­fi­cer at the UN Res­i­dent Co­or­di­na­tor’s of­fice in Beirut. Gedeon did point out that the res­o­lu­tion high­lights bi­lat­eral con­tri­bu­tions, “A project is cur­rently un­der devel­op­ment by the Gov­ern­ment of Le­banon for fund­ing by the Euro­pean Union that will in­clude a com­po­nent on the sound man­age­ment of re­cov­ered wastes.” Gedeon added that from 2006–2009 the UN mo­bi­lized sup­port for the cleanup which saw con­tri­bu­tions of some $3 mil­lion; ad­di­tional money, ex­per­tise and spe­cial­ized equip­ment for the oil spill cleanup ef­fort was ob­tained by Le­banon from var­i­ous other in­ter­na­tional donors. How­ever, Steiner ar­gues that the “In­ter­na­tional re­sponse to this in­ten­tional en­vi­ron­men­tal dam­age was ter­ri­bly in­suf­fi­cient.”

“THE PEO­PLE WHO COULD HAVE MIT­I­GATED THE SPILL COULD NOT DO THEIR JOB AT THAT TIME BE­CAUSE OF THE BLOCK­ADE”

CAL­CU­LAT­ING COM­PEN­SA­TION

“The Gen­eral As­sem­bly and the Sec­re­tary Gen­eral in his re­ports have asked for a fig­ure of what Le­banon is claim­ing from Is­rael,” says Diab who has been an in­te­gral fig­ure in pre­par­ing

Le­banon’s legal case. Work­ing with a num­ber of stake­hold­ers — the Min­istry of En­vi­ron­ment, UNDP and the Min­istry of For­eign Af­fairs — Diab has laid out which av­enues Le­banon might pur­sue to ob­tain com­pen­sa­tion from Is­rael for the dam­ages caused by the oil spill. The first step, though, was cal­cu­lat­ing a fig­ure that would hold up un­der legal scru­tiny. “For eight years, the Gen­eral As­sem­bly had al­ready said that Is­rael is li­able and re­spon­si­ble for the dam­age. Now a fig­ure has been put [down] and this is the most im­por­tant thing,” Diab says.

Ban Ki-moon, in an Oc­to­ber 2013 re­port to the Gen­eral As­sem­bly, ad­vised UN bod­ies to build on the World Bank’s ini­tial eco­nomic as­sess­ment of the en­vi­ron­men­tal degra­da­tion re­sult­ing from the spill. The 2007 re­port con­cluded that the con­flict had a dev­as­tat­ing ef­fect on Le­banon with sig­nif­i­cant im­pacts on the econ­omy, en­vi­ron­ment and public health. The re­port cites degra­da­tion due to the oil spill amount­ing to $240 mil­lion, but Diab says this fig­ure was in­com­plete and omit­ted the pas­sive use value (value on public goods not in use, like the mon­e­tary value of a na­tional park) of the coastal re­source — for this Diab cal­cu­lates an ad­di­tional amount of $218 mil­lion since 2006, to­tal­ing $458 mil­lion.

Ad­just­ing for global in­fla­tion and lost op­por­tu­nity in terms of an in­ter­est rate, Diab ex­plains, leads to a com­pen­sa­tion val­ued at $856.4 mil­lion by 2014 as re­quested in the res­o­lu­tion, but the fig­ure might con­tinue to climb. “There is no lim­i­ta­tion. As long as you have dam­age that will ap­pear in the fu­ture and which you can prove is linked to the oil spill, it should be cov­ered. That’s why it is an in­terim fig­ure and not de­fin­i­tive.”

In the months fol­low­ing the spill, Steiner, the en­vi­ron­men­tal sci­en­tist, tells Ex­ec­u­tive that “The spill, and of course the war, had pro­found neg­a­tive ef­fects on lo­cal busi­nesses, in­clud­ing fish­ing and tourism. Most were shut down for a time pe­riod dur­ing the spill, and lost con­sid­er­able eco­nomic value dur­ing that time.” He adds that in meet­ings in the months af­ter the spill with both the gov­ern­ments of Is­rael and the United States he had, “Pro­posed a $1 bil­lion restora­tion and com­pen­sa­tion fund, to be paid by Is­rael.” By De­cem­ber 2006, the Is­raeli min­istry of jus­tice had re­jected this pro­posal.

LEGAL RE­COURSE

Diab, along­side a team of ex­perts at Le­banon’s min­istries and UN bod­ies, is ‘writ­ing the book’ on legal com­pen­sa­tion in re­la­tion to war and en­vi­ron­men­tal dam­ages — it is an area of law with limited prece­dence. Sure, Diab may not have as high a pro­file as an­other in­ter­na­tional legal ex­pert with mar­i­tal ties to Hol­ly­wood but, “If this de­ci­sion will be trans­lated into legal texts — whether en­vi­ron­ment or war — it will be im­por­tant,” Diab blushes.

But the legal jus­ti­fi­ca­tion is not there yet. It has taken sev­eral years to ob­tain th­ese de­ci­sions — nine Gen­eral As­sem­bly res­o­lu­tions, and a res­o­lu­tion by the United Na­tions Hu­man Rights Coun­cil — yet all are non­bind­ing. Diab has ex­plored ev­ery op­tion avail­able to Le­banon through two re­ports in­clud­ing what he terms the “dead-ends” — the non-avail­able op­tions that seem plau­si­ble but for one rea­son or an­other are not. Th­ese would in­clude many in­ter­na­tional con­ven­tions, for ex­am­ple the United Na­tions Con­ven­tion on the Law of the Sea. “In Le­banon, we al­ready have a prob­lem in that we do not rec­og­nize the ex­is­tence of Is­rael, so it is very dif­fi­cult to in­vite Is­rael to join Le­banon be­fore some in­ter­na­tional fo­rums de­vised by cer­tain treaties and con­ven­tions,” Diab ex­plains.

Diab now is in dis­cus­sions with the other stake­hold­ers to begin pre­par­ing a third re­port look­ing at which legally bind­ing op­tion is most vi­able to pur­sue. “Le­banon now has a non­bind­ing res­o­lu­tion ren­dered by the high­est in­sti­tu­tion of the United Na­tions af­ter the Se­cu­rity Coun­cil. What Le­banon needs to do at this stage is see what it can do with it in or­der to have it en­forced some­where. We have other av­enues but I’m not sure yet, it still needs to be stud­ied.”

When pressed, Diab sug­gests the next step will de­fine the scope of Le­banon’s legal ar­gu­ment, “The In­ter­na­tional Court of Jus­tice would be a rea­son­able fo­rum for the next stage, es­pe­cially in its ad­vi­sory ju­ris­dic­tion.”

THE CON­FLICT HAD A DEV­AS­TAT­ING EF­FECT ON LE­BANON WITH SIG­NIF­I­CANT IM­PACTS TO THE ECON­OMY

Work­ers clean up af­ter the attack on the Jiyeh power sta­tion in 2006 (MoE/CIDA/UNDP/EPE)

(MoE/CIDA/UNDP/EPE)

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