War crimes or not war crimes? On the international legal status of depleted uranium weapons

Ludwig De Braeckeleer, OhMyNews, November 2, 2006
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Because of the high density of the material, depleted uranium munitions (DU) are particularly suitable to pierce armor-vehicle or bunkers. They have been used in Kuwait, Iraq, and Kosovo. There are some allegations that they may have been used in Palestine.
The analysis of samples gathered from two bomb craters in Khiam and At-Tiri indicates that the Israeli Defense Force probably used some kind of uranium-based weapons in Lebanon last summer. Although Israel has neither confirmed nor denied the use of such weapons, the question of their legality is once more in the spotlight.
“Israel does not use any weaponry which is not authorised by International Law or International Conventions,” said Mark Regev, the Israeli Foreign Ministry spokesman.
The illegality of a weapon under International Law may result either from the existence of a treaty that specifically bans it and/or from the violation of Law, as well as Customs, of War known together as Humanitarian Law.
While the first source of illegality is rather obvious, the second one follows from the so-called “Martens Clause” to the Hague Convention of 1907.
The “Martens clause” states that, in absence of a specific treaty, all States are nevertheless bound by “the rules of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience.”
Both the Geneva Conventions of 1949 and the Protocols Additional to the Geneva Conventions of 1977 include the “Martens clause.”
As the United States is the likely provider of these weapons to Israel (The U.S. delivered at least 100 GBU 28 Bunker Busters Bombs containing DU warheads), it is relevant to point out that the U.S. is a signatory of both The Hague Convention of 1907 and the Geneva Conventions of 1949.
In a 1942 case (Ex Parte Quirin), the United States Supreme Court ruled that this clause is U.S. law.
When it results from a specific Treaty provision, the illegality of the weapon binds solely the countries having signed and ratified the Treaty. On the other hand, when it results from a violation of Humanitarian Law, the illegality of a weapon is universal as it applies to all countries whether or not a specific convention banning that particular weapon exists.
Is there a specific convention banning depleted uranium weapons?
The body of International Law on poisonous weapons includes the following instruments: the Second Hague Declaration of July 29, 1899, The Hague Convention IV of 18 October 1907 and the Geneva Protocol of June 17, 1925.
In 1996, the International Court of Justice (ICJ) gave an advisory opinion on the “legality of the threat or use of nuclear weapons.” The opinion made it clear that none of the legal instruments mentioned above applied to nuclear weapons.
But although their opinion was restricted to nuclear weapons, the wording of the ICJ opinion clearly also excludes DU weapons from the field of application of International Law on poisonous weapons because the opinion states that it applies only to weapons “whose prime, or even exclusive, effect is to poison or asphyxiate,” which is clearly not the case of DU munitions.
The conclusion of the ICJ and its extension to DU weapons is widely accepted among International Law experts. For, instance, in a 2002 U.N. working paper, Yeung Sik Yuen wrote: “Since weapons containing DU are relatively new weapons no treaty exists yet to regulate, limit or prohibit its use. The legality or illegality of DU weapons must therefore be tested by recourse to the general rules governing the use of weapons under Humanitarian Law.”
When does a weapon violate humanitarian law?
Humanitarian law governs the following areas: military operations, protection of victims of war, and weapons. It includes both the Treaties and Customary International Law relevant to these areas.
Key instruments of Customary International Law are the Hague law and the Geneva Law which governs respectively military operations and the protection of parties in time of war.
Both the United States Supreme Court and the International Court of Justice have upheld the binding nature of Customary Humanitarian Law.
There are four rules derived from the whole of Humanitarian Law regarding weapons:
1st Rule. The Weapon must pass a test of territoriality. Its effects must be restricted to legal military targets of the enemy in the war. A contrario, weapons may adversely affect neither civilians nor a non-enemy population.
2nd Rule. The Weapon must pass a test of temporality. The adverse effect of the weapon must end at once at the end of an armed conflict. Clearly, a weapon that would keep on killing or injuring people after the end of an armed conflict would fail this test.
3rd Rule. The Weapon must pass a test of humaneness. According to the wording of the Hague Conventions of 1899 and 1907, a weapon may not cause “unnecessary suffering” or “superfluous injury.”
4th Rule. The Weapon must pass an environmental test. Weapons may not have unnecessary negative effect on the environment. This rule partially overlaps with the second one as this type of effect could adversely affect future generations.
Do depleted uranium weapons fail the tests of Humanitarian Law?
DU weapons can potentially cause health hazard because of their nuclear toxicity as well as their chemical toxicity. As DU is actually less radioactive than natural uranium, the later is more likely than the former. Indeed, like any other heavy metals, DU is potentially poisonous.
Health statistics in Iraq and Kosovo seem to indicate a rise in cancer and birth defects. Among U.S. and allied military, many believe that there is a link with the use of DU weapons. If the link could be established by the scientific community, I have little doubt that International Lawyers would rapidly reach a consensus on the illegality of these weapons.
The problem is that on both side of the Atlantic, government and private organizations claimed that there is no credible scientific evidence proving a link between DU exposure and increases in human cancers, birth defects or other significant health impacts.
According to an IAEA investigation, the DU munitions used during the Gulf War pose no significant radiological hazard to the people of Kuwait.
A study of Gulf War veterans who have embedded irremovable DU shrapnel in their bodies has reported no health abnormalities due to uranium chemical toxicity or radio toxicity.
Yesterday, Dr Mike Repacholi, who oversaw the work on the 2001 report of the World Health Organization (WHO), told the BBC that depleted uranium is “basically safe.”
“You would have to ingest a huge amount of depleted uranium dust to cause any adverse health effect,” Repacholi said.
According to the WHO 2001 report, risks of other radiation-induced cancers, including leukemia, are even less likely.
Speaking on behalf of the European Union, Javier Solana said in January 2001 that “there is no evidence to suggest that expended depleted uranium munitions represented a significant risk for NATO-led forces or the civil population in the Balkans.”
Yet, a few high profile scientists have voiced strong criticisms towards these reports.
Dr. Keith Baverstock, a member of the 2001 WHO report team, said that US Department of Defence has conducted research leading to evidence that depleted uranium is harmful. He points explicitly at a process known as geno-toxicity, which begins when depleted uranium dust is inhaled.
“The particles that dissolve pose a risk — part radioactive — and part from the chemical toxicity in the lung,” Baverstock said.
Once entered in the body and the blood stream, the DU material may potentially affects bone marrow, the lymphatic system and the kidneys.
Dr Baverstock believes that these findings were intentionally not included in the 2001 WHO report. Other top scientists have voiced similar concerns such sd Dr. Doug Rokke, a former Director of the U.S. Army Depleted Uranium Project.
“I am dismayed that Department of Defense and Department of Energy officials and representatives continue personal attacks aimed to silence or discredit those of us who are demanding that medical care be provided to all DU casualties and that environmental remediation is completed in compliance with U.S. Army Regulation,” Dr. Rokke wrote on July 24th 2006.
Reactions from international bodies
The Sub-Commission on Prevention of Discrimination and Protection of Minorities of the United Nations Human Rights Commission, passed two motions — the first in 1996 and the second in 1997- in which they listed DU munitions as weapons “with indiscriminate effect, or of a nature to cause superfluous injury or unnecessary suffering.”
The members of the Committee requested a UN working paper on this matter that was delivered in 2002 by Mr. Yeung Sik Yuen.
In his report, Yuen argued that the use of DU weapons may breach the following treaties: The Universal Declaration of Human Rights, the Charter of the United Nations, the Genocide Convention, the United Nations Convention Against Torture, the Geneva Conventions including Protocol I, the Convention on Conventional Weapons of 1980, and the Chemical Weapons Convention.
In January 2001, The European Lawmaking Institutions adopted a joint Resolution on the consequences of using depleted uranium munitions (The E.U. Parliament voted 394 in favor, 60 against and 106 abstentions) calling for a moratorium of DU weapons in accordance with the precautionary principle.
In 2001, Carla del Ponte, the chief prosecutor for the International Criminal Tribunal for the Former Yugoslavia, said that NATO’s use of depleted uranium in former Yugoslavia could be investigated as a possible war crime.
Her predecessor, Louise Arbour, had created an internal committee to reflect on the legality of DU weapons. The Committee concluded that “it is possible that, in future, there will be consensus views in international legal circles that use of such projectiles violate general principles of the law applicable to use of weapons in armed conflict.”

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