Bulletin Board Discussion Here
Depleted Uranium Situation Requires
Action
By President Bush and Prime Minister Blair
Dr. Doug Rokke, Ph.D.
October 31, 2005
While U.S. and British military personnel continue using illegal uranium munitions-
America's and England's own "dirty bombs" U.S. Army, U.S. Department
of Energy, and U.S. Department of Defense officials continue to deny that there are any adverse health and environmental effects as a consequence of the manufacture, testing, and/or use of uranium munitions to avoid liability for the willful and illegal dispersal of a radioactive toxic material - depleted uranium. They arrogantly refuse to comply with their own regulations, orders, and directives that require United States Department of Defense officials to provide prompt and effective medical care "all" exposed individuals [Medical Management of Unusual Depleted Uranium Casualties, DOD, Pentagon, 10/14/93, Medical Management of Army personnel Exposed to Depleted Uranium (DU) Headquarters, U.S. Army Medical Command 29 April 2004), and section 2-5 of AR 70-48]. They also refuse to clean up dispersed radioactive Contamination as required by Army Regulation- AR 700-48: "Management of Equipment Contaminated With Depleted Uranium or Radioactive Commodities" (Headquarters, Department Of The Army, Washington, D.C., September 2002) and U.S. Army Technical Bulletin- TB 9-1300-278: "Guidelines For Safe Response To Handling, Storage, And Transportation Accidents Involving Army Tank Munitions Or Armor Which Contain Depleted Uranium" (Headquarters, Department Of The Army, Washington, D.C., JULY 1996).
(1) "Military personnel "identify, segregate, isolate, secure, and label all RCE" (radiologically contaminated equipment).
(2) "Procedures to minimize the spread of radioactivity will be implemented as soon as possible."
(3) "Radioactive material and waste will not be locally disposed of through burial, submersion, incineration, destruction in place, or abandonment" and
(4) "All equipment, to include captured or combat RCE, will be surveyed, packaged, retrograded, decontaminated and released IAW Technical Bulletin 9-1300-278, DA PAM 700-48" (Note: Maximum exposure limits are specified in Appendix F).
contamination is not limited to combat zones but includes facilities and sites where uranium weapons were manufactured or tested including Vieques, Puerto Rico, Colonie, New York, and Jefferson Proving Grounds, Indiana. Therefore medical care must be provided by the United States Department of Defense officials to all individuals affected by the manufacturing, testing, and/or use of uranium munitions. Thorough environmental remediation also must be completed without further delay. I am amazed that fourteen years after was asked to clean up the initial DU mess from Gulf War 1 and almost ten years since I finished the depleted uranium project that United States Department of Defense officials and others still attempt to justify uranium munitions use while ignoring mandatory requirements. 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 700-48. But beyond the ignored mandatory actions the willful dispersal of tons of solid radioactive and chemically toxic waste in the form of uranium munitions is illegal (http://www.traprockpeace.org/karen_parker_du_illegality.pdf) and just does not even pass the common sense test. Finally continued compliance with the infamous March 1991 Los Alamos Memorandum (http://www.tv.cbc.ca/national/pgminfo/du/doc1.html) that was issued to ensure continued use of uranium munitions can not be justified.
The Prime Minister of Great Britain-Tony Blair must acknowledge and accept
responsibility for willful use of illegal uranium munitions- their own
"dirty bombs"- resulting in adverse health and environmental effects.
President Bush and Prime Minister Blair also should order:
1. medical care for all casualties,
2. thorough environmental remediation,
3. immediate cessation of retaliation against all of us who demand compliance with medical care and environmental remediation requirements,
4. and stop the already illegal the use (UN finding) of depleted uranium munitions.
http://www.traprockpeace.org/twomemos.html
Two Memos (Obtained by Doug Rokke)
"Proponency" Takes Priority over Environmental Concerns
The Los Alamos memo of March 1, 1991 acknowledges that "[t]here has been and continues to be a concern regarding the impact of DU on the environment." It raises a concern that DU weapons could become "politically unacceptable" and advocates "proponency" when "after action reports are written."
'Depleted Uranium' Poses Threats to Health, per Defence Nuclear Agency
This Defense Nuclear Agency Memo was written by Gregory K. Lyle, LTC, USA concerning what "can, must or should be done wtih the millinos of expanded rounds of depleted uranium ordinance" in Iraq. It notes that clean up procedures "were not meant to support shipments of thousands of DU rounds from site restoration." It goes on to note "As Explosive Ordinance Disposal (EOD), ground combat units, and the civil populations of Saudi Arabia, Kuwait and Iraq come increasingly into contact with DU ordnance, we must prepare to deal with the potential problems." Further, "Alpha particles (uranium oxide dust) from expaneded rounds is a health concern but, Beta particles from fragments and intact rounds is a serious health threat, with a possible exposure rate of 200 millirems per hour on contact." The memo warns that "specific DoD guidance concerning the disposition of DU material in the post combat period/restoration phase is currently lacking." The writer hoped that "expression of our concerns over the side effects of DU use will help ensure protetion for our troops and allies." This memo is undated - Dr. Rokke says he received it around the same time he received the Los Alamos memo in 1991. [Note: For a discussion of acceptable millirem limits, see http://www.sroa.org/_onconews/Vol9No2/500_Millirem_Limit.html. Per the Nuclear Regulatory Commission, allowable radition does to a member of the public is 100 millrem per year, for a continuous dose. It's obvious that continuous or repeated exposures causing radition of 200 millirems per hour would quickly exceed the National Regulatory Commission's limits.]
http://www.traprockpeace.org/rokke_du_3_ques.html
September 13, 2004
3 Questions from Doug Rokke, Ph.D. to the Department of Defense
concerning its use of radioactive weapons
1. Will you ensure full compliance with Army Regulation 700-48 and U.S. Army Technical Bulletin 9-1300-278 that require that thorough environmental remediation is completed and medical care is provided?
2. There have been numerous U.S. Army, U.S. Department of Defense, and U.S. Department of Veterans Affairs orders and directives that have been ignored. The most recent is dated April 29, 2004. All of them have required medical care for DU exposures. Will you join us to ensure that this mandated medical care is provided to all individuals who may have been or were exposed to depleted uranium contamination?
3. By what legal or ethical right can members of the United States military or any other nation’s military disperse tons of uranium weapons, with radioactive and heavy metal toxic contamination - "America's own dirty bomb," any place in the world when those radioactive materials will then contaminate air, water, and soil with consequent adverse health effects as we now know occur? We must remember that one of the findings published by the the U.S. Arrmy Environmental Policy Institute in their 1995 report on depleted uranium was quote:
"No available technology can significantly change the inherent chemical and radiological toxicity of DU. These are intrinsic properties of uranium."
For further reference: (US government - pdf files)
April 29, 2004 Memorandum for Commanders, MEDCOM major subordinate Commands on “Medical Management of Army Personnel Exposed to Depleted Uranium (DU)
Army Regulation 700-48 – Logistics – Management of Equipment Contaminated with Depleted Uranium or Radioactive Commodities; and Department of the Army, Pamphlet 700-48 - Handling Procedures for Equipment Contaminated with Depleted Uranium or Radioactive Commodities
U.S. Army Technical \ Bulletin- TB 9-1300-278: "Guidelines For Safe Response To Handling, Storage, And Transportation Accidents Involving Army Tank Munitions Or Armor Which Contain Depleted Uranium" (Headquarters, Department Of The Army, Washington, D.C., JULY 1996).
http://www.traprockpeace.org/du_dtic_wakayama_Aug2002.html
Depleted Uranium (DU) Munitions
COL J. Edgar Wakayama
OSD/DOT&E/CS
August, 2002Read this report for the military's own view on risks to health and the environment.
Download PDF version of PowerPoint Presentation
Traprock site ( 2.6 mg) - http://www.traprockpeace.org/wakayama2.pdf
Traprock has a copy on its site in the event that it 'disappears' from DTIC site. Remember the Futures Market program that DOD pulled from its site?People with low bandwidth may prefer the RTF file (easy down load - test only) http://www.traprockpeace.org/wakayama2.rtf
Official download - Defense Technical Information Center - http://www.dtic.mil/ndia/2002training/wakayama2.pdf
Presented at the The 5th Annual Testing and Training Symposium & Exhibition
19 - 22 August 2002 (table of contents) http://www.dtic.mil/ndia/2002training/Overview
Among its warnings, the report recognizes that it is not safe to leave shell fragments in the body as per US military policy; warns that uranium would be solubilized and redistribute to various tissues as early as one day after implantation; highlights the special risks faced by children in the battle area, with risks to water and food supplies; recognizes risks of cancer, lung fibrosis, and DNA damage from DU deposited in bones.
The report recommends health monitoring of children, soldiers and civilians; epidemiological monitoring of cancer incidents of soldiers (what about civilians and soldiers' children?), including urine uranium testing, kidney function tests and neurological evaluations; removal of heavily contaminated soil in areas populated with civilians; and long term water and milk sampling in imact site.
One Recommendation is missing. Stop the production, stockpiling and use of 'depleted' uranium munitions.
Select Sections (see links above for entire report)
Emerging Medical Management Issues:
-During the Persian Gulf War, a number ofEmerging Environmental Concerns Include:
allied military personnel internalized DU
fragments as a result of several friendly fire
incidents (only the allied forces possessed
DU munitions).
-The three major routes of human exposure
to DU are:a. Wounding by shrapnel,1. At that time, existing DoD fragments
b. Inhalation (lungs and thoracic lymph nodes),
c. Ingestion (most among children playing and
eating contaminated soil and contaminated
drinking water and food in the community).
removal guidelines indicated that shrapnel be
remained in place unless they cause future
health threat.
2. Because DU is still radioactive, studies
were performed in rats with embedded DU
fragments.
3. Indicated that uranium would be
solubilized and redistribute to various tissues
as early as one day after implantation.
4. As expected, the highest uranium
concentrations were in kidneys and bone.
5. Other tissues also showed significantly
higher levels.
6. Urine samples containing uranium
showed mutagenic as determined by the
Ames test.
7. The cultured human stem bone cell line
with DU also transformed the cells to
become carcinogenic.
8. Because of these findings, there are
proposed changes in the DU shrapnel
removal policy. For example, it is now
advised that DU fragments greater than 1 cm
be removed unless the medical risk is
determined to be too grave.
9. The other significant changes include a
procedure to detect the presence of DU in the
metal fragments and treatment guidelines.– A significant exposure to DU amongRadiation Health Effects:
children playing in the impact sites by
ingesting heavily-contaminated soil,
– Slow leaching of DU in local water
supplies over years,
– Consuming DU contaminated food
sources (animals and plants).– Inhalation exposure (major effect): Lungs andFuture Studies/Recommendations:
thoracic lymph nodes;
– The lifetime risk of lung cancer in general
population: 1:250 for non-smoker, and 1:6 for
cigarette smokers;
– Soldiers on battlefield: Estimated lung cancer:
<1:40,000 (The Royal Society Report, March 2002)
– The most heavily exposed soldier: Estimated lung
cancer for the most worst-case to be about 1:15,
but more likely 1:1,000 surviving in a struck tank
(The Royal Society Report, March 2002);
– DU can be deposited in bone causing DNA damage
by the effects of the alpha particles;
– A large inhalation of dust (without radiations):
Long-term respiratory effects (Lung fibrosis, in
addition to risk of lung cancer).
– Immune deficiency: Negligible effect (The Royal
Society Report, March 2002);
– An extra risk of death from leukemia and other
cancers: Insignificant and much lower than that of
lung cancer (The Royal Society Report, March
2002).a. Monitoring of kidney function and urine
uranium levels among children,
peacekeepers, and inhabitants.
b. Epidemiological monitoring of cancer
incidents among soldiers surviving
during friendly fire and soldiers working for
protracted periods in heavily contaminated
vehicles, including urine uranium testing,
kidney function tests, and neurological
evaluations.
c. Heavily contaminated soil should be
removed if the area is to be populated
with civilians.
d. Long-term annual water and milk
sampling for DU levels in the impact site.
http://www.traprockpeace.org/karen_parker_du_illegality.pdf
1
http://www.traprockpeace.org
The Illegality of DU Weaponry
by
Karen Parker, JD
1Background
I found out about DU weaponry in 1996 and immediately began to condemn it at the
United Nations human rights forums.
2 I was convinced that such weaponry could not be usedwithout violating humanitarian (armed conflict) law rules and was, accordingly banned by
operation of existing law. As a consequence, their use would necessarily constitute grave
breaches of the Geneva Conventions and other violations of humanitarian (armed conflict). The
fact that the UN took up this issue as soon as it was presented it supports my opinion.
3The presentations at the 1996 session of UN Commission on Human Rights (the
Commission and at the August 1996 session of the United Nations Sub-Commission on
Prevention of Discrimination and Protection of Minorities, now renamed the United Nations
Sub-Commission on the Promotion and Protection of Human Rights (the Sub-Commission)
focused on the use of DU weaponry in the first Gulf War.
4 At that session, members of the Sub-1
J.D. (honors, Univ. San Francisco, 1983), Diplome (cum laude, Strasbourg, 1982), non-governmental delegate toUN Commission on Human Rights and its Sub-Commission since 1982. This paper is prepared for the International
Uranium Weapons Conference, Hamburg, Germany, 16 - 19, 2003.
2
I found out about DU weapons from Philippa Winkler, who along with Dr. Horst Gunther, Dr. Beatrice Boctor,and “Bridges to Baghdad, and under the credential of my organization International Educational
Development/Humanitarian Law Project (IED/HLP), compiled information about DU weaponry and informed the
members of the Commission on Human Rights at its 1996 session about DU. Margarita Papandreou and several
other members of her organization “Women for Mutual Security, also attended on behalf of my organization, with a
focus mainly on the effects of the sanctions against Iraq. Only UN-credentialed organizations may participate in the
UN session, which is why my organization issued credentials for persons representing other NGO’s. In 2000 I
prepared Depleted Uranium at the United Nations: A Compilation of Documents and an Explanation and Strategy
Analysis (CADU report) printed and distributed by CADU (Campaign Against Depleted
Uranium)(www.CADU.org.uk). It covers events undertaken at and by the United Nations Commission on Human
Rights and the Sub-Commission on the Promotion and Protection of Human Rights from the spring 1996 session of
the Commission through the summer 1999 session of the Sub-Commission and contains essentially all the written
statements, speeches, documents, resolutions and decisions of that period.
3
It is important to set out that the DU work at the UN has focused on DU weaponry, although other DU issues havebeen presented. For example, the Commission has an existing procedure on toxics that we have utilized to address
DU in general as well as in the context of weaponry.
4
The Sub-Commission is composed of 26 persons nominated by their governments who sit in their individualcapacity on the Sub-Commission. Only Sub-Commission members vote. The Commission on Human Rights is
composed of governments who vote as governments.
2
Commission were both highly shocked and moved by the presentations on DU weaponry
5 and asa result passed a resolution (Sub-Commission resolution 1996/16) sponsored by Claire Palley
(UK) in which the Sub-Commission found DU weaponry “incompatible” with existing
humanitarian and human rights law. The resolution also began a procedure to address DU
weaponry (and other "bad" weapons) in light of these existing norms and asked the Secretary-
General to submit a report to the Sub-Commission at its 1997 session on this topic. I prepared
Memorandum on Weapons and the Laws and Customs of War (IED/HLP 1997)(in CADU
report) to submit to the Secretary-General, who then incorporated much of my basic analysis in
his report, issued as U.N. Doc. E/CN.4/Sub.2/1997/27 and Additions. The Secretary-General’s
report also contains the views of States, other NGO’s and specialized agencies. In 1997 the Sub-
Commission adopted another resolution (Sub-Commission resolution 1997/36) in which it
repeated its finding that DU weaponry is “incompatible” with existing humanitarian and human
rights law and asked its member Clemencia Forero Ucros to study further this issue.
6Mme Forero Ucros did not submit a paper and did not return to the Sub-Commission. At
the 1998 session of the Commission on Human Rights, Claire Palley was not nominated by the
UK, which instead nominated Francoise Jane Hampson who was elected. Between 1998 and
2001 our efforts turned to reinforcing the legal position with written and oral presentations (years
1998 and 1999 in CADU report), presenting new studies, having round tables and seminars,
showing films, and generally trying to keep up the momentum. At the same time, we looked for a
replacement for Mme Forero Ucros and kept the issue on the agenda through decisions to carry
over the working paper.
At the Sub-Commission 2001 session Sub-Commission member Justice Yeung Sik Yuen
agreed to take on the weapons paper and Sub-Commission member Miguel Alfonso Martinez
(Cuba) introduced a decision to that effect. The Alfonso Martinez draft surfaced with sufficient
signatures to pass and was “tabled” as Sub-Commission Doc. E/CN.4/Sub.2/2001/L.2. (In the
UN, “tabled” means “ready for action” rather than “dismissed”. The “L” stands for “limited”
documents, which are circulated at the sessions but not published). At that point Ms. Hampson
tried to have the Sub-Commission agree to issue a separate resolution on DU weaponry, which
would then be taken off the list of weapons that Sik Yuen was to address and assigned to another
Member, presumably herself. She submitted amendments to draft L.2, circulated as Doc.
E/CN.4/Sub.2/2001/L.36 forwarding this idea. Ms. Hampson appeared to not want that DU
weapons be considered automatically “incompatible” with existing norms. The “other” weapons
on the list to be studied are fuel air bombs, cluster bombs, chemical, biological, bacteriological
and other weapons, some of which are commonly embraced under the term “weapons of mass
destruction”. By requiring separate analysis of DU weaponry, the implication would be that DU
weapons are not necessarily “incompatible” with existing norms.
5
At the 1996 session of the Sub-Commission, Fabio Marcelli (an attorney representing “Bridges to Baghdad) andDr. Boctor attended. In the course of the 7 years effort at the UN session, I have provided credentials for Fabio
Marcelli, Philippa Winkler, Dr. Boctor, Dr. Rosalie Bertell, Dr. Horst Gunther, Damacio Lopez, Dai Williams,
Margarita Papandreou and three of her teammates from “Women for Mutual Security” and a number of others. We
have held “round-tables” in conjunction with other NGO’s, in which we have shown films and circulated a number
of reports and eye-witness accounts of post-DU Iraq.
6
That same session, the Sub-Commission also took up our sanctions issue. I presented the view that one possiblereason for the adamant United States position to maintain the sanctions against Iraq was because of the DU issue.
3
During the debates at the 2001 session, I spoke on behalf of IED/HLP and several other
NGO’s made statements about DU, as did the governments of Iraq and Yugoslavia. Not
surprisingly, both the US government and the UK government spoke up strongly against this
issue, and their position was widely viewed as responsible for Ms. Hampson’s attempt to sever
DU from the report.
7 Ms. Sim, representing the US, questioned the information that there wasevidence showing that DU was harmful. And in any case, the US said a study of weapons
containing DU would exceed the Sub-Commission’s “expertise, scope and mandate.”
(E/CN.2/Sub.2/2001/SR.24). Mr. Bendall of the UK echoed the US, thereby showing yet again
what the UK activists identify as “copy cat”, US driven policy. (E/CN.4/Sub.2/2002/SR.24). A
number of the members of the Sub-Commission went on record strongly disagreeing with the
US/UK views.
When L.2 (the Alfonso Martinez) draft was called up for vote, M. Alfonso Martinez said
that he could not accept Ms. Hampson’s proposed amendments and recommended a voice vote at
that point on L.2. The Chair (an American) however, said that the issue would be taken up
later.(See the Summary record at E/CN.4/Sub.2/2001/SR. 25). While there was no explanation
for this, the delay was assumed to be so that the US would have time to “lobby” the members to
vote for the Hampson amendments. However, when the Sub-Commission did take up the issue,
the Sub-Commission as a whole rejected the Hampson amendments (see the Summary Record:
E/CN.4/Sub.2/2001/SR.27) and adopted L.2, which became Sub-Commission Decision 2001/36.
In brief, the Sub-Commission re-iterated that DU weapons, along with fuel air bombs, cluster
bombs, chemical, biological and bacteriological weapons, are “incompatible” with existing law
and appointed Justice Sik Yuen to prepare the working paper originally assigned to Mme Forero
Ucros.
Throughout 2001 and up to the 2002 session of the Commission on Human Rights Justice
Sik Yuen collected documentation, studied all the reports and information sent to him, and
worked on the report. However, he was up for re-election to the Sub-Commission in 2002 at the
Commission on Human Rights. The United States decided that it had to ensure that Justice Sik
Yuen would not be re-elected, hoping that as a person no longer on the Sub-Commission, Justice
Sik Yuen would not present a working paper. At the Commission, the US, aided by the UK,
carried out an overtly insidious campaign against Justice Sik Yuen. I am certain that large-scale
“debt-reduction” agreements and serious arm-twisting augmented this. The result was that
Justice Sik Yuen was not re-elected.
To the disappointment of the US and the UK, Justice Sik Yuen presented his paper (U.N.
Doc. E/CN.4/Sub.2/2002/38) at the 2002 session even though he had been voted off the Sub-
Commission. Predictably, Ms. Hampson (UK) was quite critical of the paper, but the vast
majority of the Sub-Commission members were very pleased with it. In fact, the Sub-
Commission made a rarely used and highly complimentary decision to ask Justice Sik Yuen to
prepare a second “up-dated” working paper to be submitted to the Sub-Commission at its 2003
7
The United States was very concerned about this report going forward, and at the hands of Justice Sik Yuen,because any impartial legal analysis was certain to “condemn” DU. The US certainly does not want any of the Sub-
Commission resolutions or reports on DU to circulate beyond a few UN NGO representatives. At all junctures in
this work, the US has, in the words of several members of the Sub-Commission, “played dirty.”
4
session. In retaliation, the US and UK orchestrated a maneuver at the 2003 session of the
Commission on Human Rights to deny the Sub-Commission the authority to ask a former
member to continue work on a topic already begun as a “working paper.” In spite of this, it was
too late to take away the Sub-Commission’s prior approval of an “updated” report, and Justice
Sik Yuen showed that he could not be “embarrassed” away from the work. He prepared and
submitted the updated paper to Sub-Commission at its 2003 session. (U.N. Doc.
E/CN.4/Sub.2/2003/35).
Predictably, Ms. Hampson of the UK was highly critical of this paper, and in completely
unfair ways. For example, she criticized the lack of reference to the International Committee of
the Red Cross (ICRC) when the ICRC had not made any statements about DU and there was
nothing to report. Further, she questioned his lack of analysis under human rights law, when that
issue was addressed in his earlier report. Certain DU activists emailed me comments about the
report, which they felt did not have enough about possible radiological weapons use in
Afghanistan, but when I replied with my explanation they indicated satisfaction with the report.
8Because of the Commission decision to forbid assignments to former members the Sub-
Commission could not ask Sik Yuen to do any more. However, we decided that what needed to
be said regarding the legal arguments about DU weaponry had already been set out in his two
reports, votes and comments of the Sub-Commission members, in my Memorandum and
numerous NGO written statements, statements and written statements of other UN NGO’s, and
other sources. Ms. Hampson, meanwhile, was trying to be assigned a further DU paper but the
other members rejected this -- in part because she was from the UK and would likely try to
undermine the legal status of DU weapons, in part because they saw through her unfair critique
and in part because she had been assigned other work that she did not do. So the reports stand
with Sub-Commission approval, and are, of course, part of the UN record and the work of both
the Sub-Commission and the Commission. Governments are considered to be “on notice” of the
illegality of DU.
In his first report, Justice Sik Yuen, sets out all the basic instruments of human rights and
humanitarian law relevant to analysis of weaponry, sets out his formula for the weapons tests,
and evaluates each of the listed weapons. While his analysis of this body of law and his formula
of the “test” for weapons is worded a bit differently than mine, it largely parallels mine and leads
to the same, obvious conclusion that DU weaponry is illegal. His “updated report” summarizes
the first report and the Sub-Commission debate on it and provides new information regarding
DU (such as its use in Iraq), some of the other weapons, and introduces “directed energy
weapons” or “DEW’s.
8
Both Dai Williams and Piotr Bein felt more should have been done about Afghanistan. However, I responded withthe information that the UN would not publish a paper longer than 20 pages, and at least the possibility of some type
of uranium weaponry use in Afghanistan was mentioned. The 2002 Sik Yuen report was over the 20-page limit, so
only the executive summary was printed in all the official UN languages. To ensure that the 2003 report would be
published in all the UN languages, he met the page limit, which was very fortunate as reports more than a few pages
over the much were not published at all in 2003, or only circulated as a “session” document in the original language.
Of course, I used my right to submit a written statement to augment the Afghanistan information and other concerns,
and this statement should be read in conjunction with the Sik Yuen paper. My written statement is U.N. Doc.
E/CN.4/Sub.2/2003/NGO/16.
5
Why is DU weaponry already illegal?
9A weapon is made illegal two ways: (1) by adoption of a specific treaty banning it; and
(2) because it may not be used without violating the existing law and customs of war. A weapon
made illegal only because there is a specific treaty banning it is only illegal for countries that
ratify such a treaty. A weapon that is illegal by operation of existing law is illegal for all
countries. This is true even if there is also a treaty on this weapon and a country has not ratified
that treaty. As there is no specific treaty banning depleted uranium weapons, its illegality must
be established the second way.
The laws and customs of war (humanitarian law) includes all treaties governing military
operations, weapons and protection of victims of war as well as all customary international law
on these subjects.
10 In other words, in evaluating whether a particular weapon is legal or illegalwhen there is not a specific treaty, the whole of humanitarian law must be consulted.
11There are four rules derived from the whole of humanitarian law regarding weapons:
(1) Weapons may only be used in the legal field of battle, defined as legal military
targets of the enemy in the war. Weapons may not have an adverse effect off the
legal field of battle. (The "territorial" test).
(2) Weapons can only be used for the duration of an armed conflict. A weapon
that is used or continues to act after the war is over violates this criterion. (The
"temporal" test).
12(3) Weapons may not be unduly inhumane. (The "humaneness" test). The Hague
Conventions of 1899 and 1907 use the terms “unnecessary suffering” and
”superfluous injury” for this concept.
139
This brief summary draws on my own Memorandum and the Sik Yuen reports. I use my own formulation of theweapons test.
10
Customary international law, which includes: The Hague law (governing military operations); and Geneva law(governing protected parties in time of war) is binding on all countries. The United States Supreme Court has
consistently upheld the binding nature of customary law, including customary humanitarian law. All of international law,
including the UN Charter and Statute of the International Court of Justice, reflects the binding nature of customary law.
11
In 1996 the International Court of Justice, in its Nuclear case, finds that all weapons must be evaluated under thecriteria of humanitarian law but does not set out what that criteria is. I wrote my Memorandum because the criteria had
not yet been fully extracted from humanitarian law.
12
The first two tests (“territorial” and “temporal”) together make up the rule that weapons should not be“indiscriminate.” This is how Justice Sik Yuen presents the test. I prefer to separate the concept of indiscriminate
into its two parts.
13
Article 23 of The Hague Convention of 1907, Regulations. This article also forbids “poison or poisonedweapons.” Some might argue that DU weapons are necessarily poisonous, and therefore directly forbidden by
6
(4) Weapons may not have an unduly negative effect on the natural environment.
(The "environmental" test).
DU weaponry fails all four tests. (1) It cannot be "contained" to legal fields of battle and
thus fails the territorial test. Instead the DU is air-born far a-field of legal targets to illegal
(civilian) targets: hospitals, schools, civilian dwellings and even neighboring countries with
which the user is not at war. (2) It cannot be “turned off” when the war is over. Instead, DU
weaponry continues to act after hostilities are over and thus fail the temporal test. Even with
rigorous clean-up of war zones, the air-born particles have a half life of billions of years and
have potential to keep killing and injuring former combatants and non-combatants long after the
war is over. (3) It is inhumane and thus fails the humaneness test. DU weaponry is inhumane
because of how it can kill -- by cancer, kidney disease, etc. -- and long after the hostilities are
over when the killing must stop. DU is inhumane because it can cause birth (genetic) defects
such as cranial facial anomalies, missing limbs, grossly deformed and non-viable infants and the
like, thus effecting children who may never be a military target and who are born after the war is
over. The tetragenic nature of DU weapons and the possible burdening of the gene pool of future
generations raise the possibility that the use of DU weaponry is genocide. (4) It cannot be used
without unduly damaging the natural environment and thus fails the environment test. Damage to
the natural environment includes contamination of water and agricultural land necessary for the
subsistence of the civilian population far beyond the lifetime of that population. Clean up is an
inexact science and, in any case, extremely expensive -- far beyond the ability of a poor country
to pay for.
One of the more useful provisions of treaty-based humanitarian law is the "Martens
Clause" to the Hague Convention of 1907 that is repeated in subsequent humanitarian law
treaties. The Marten's Clause provides that in situations where there is not a specific treaty
provision (which is the case with DU), the international community is nonetheless 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."
14 Thereis a huge anti-DU international effort from a wide array of groups representing every facet of
civil society. The existence of the anti-DU network is legally relevant to the finding that DU is
illegal, and buttresses arguments that use of DU weaponry is a war crime or crime against
humanity and may play a decisive role in stopping proliferation of these weapons.
15Article 23.
14
The Hague Convention of 1907, 8th preambl. para. The "Martens" clause (named for the Russian scholar whoformulated it) is repeated in the Geneva Conventions of 1949 and the Protocols Additional to the Geneva Conventions of
1977. The US is a party to the Hague Conventions and the Geneva Conventions of 1949. The United States Supreme
Court, in a 1942 case (Ex Parte Quirin), ruled that this clause is US law. This principle only applies to humanitarian
(armed conflict) law, not the law of human rights although the law of human rights is evolving in this direction. For
example, the International Court of Justice, in Corfu Channel found that “elementary considerations of humanity [are]
even more exacting in peace than in war.” (1949 International Court of Justice Reports, p. 22).
15
Justice Sik Yuen points out the application of the Martens clause and the role of civil society in relation to DU inboth of his papers.
7
How bad is DU weaponry?
There is a certain amount of controversy among scientists/medical researchers and
developers and users of DU weaponry about exactly what DU does and how bad is it.
Predictably, the users of DU claim DU weapons have no “bad” effects that would ban them,
while scientific/medical researchers present a wide array of consequences that alone and together
ban DU weapons from military use.
16 However, “what it does” and “how bad is it” are scientificissues, not legal ones. Even so, the members of the UN Sub-Commission as well as other
international law specialists that have looked into what is known about DU consider that even
under outdated risk analysis and using the most conservative of possible negative consequences
DU weapons are bad enough to be considered banned.
A complete understanding of the effects of DU on the human body or the natural
environment will probably never be reached. Even so, efforts by independent and impartial
scientists/medical researchers should be made in this area as the more is known about DU
weapons and their effects, the better one can treat victims and assess legal “damages.” In any
case, the issue of the effects of DU weaponry is an issue for scientists and medical researchers
and should be “debated” among them. Their studies and reports can then be used to better
fashion medical remedies, environmental clean-up efforts, and, of course, to present in legal
proceedings by which victims seek compensation.
17 And while it would be impossible to provethat a particular case of cancer, or a particular birth defect was caused by DU, pre-DU base-line
statistics, coupled with the likelihood of DU being a causal factor, can facilitate damage
awards.
18It is not surprising that disagreements about “how bad is bad” (with many “opinions” of
persons who are not scientists/medical researchers entering the fray) are used to draw attention
from or even seemingly undermine the fact that DU weaponry cannot possibly be legal in light of
existing law.
19 The controversies seem to also have affected the dissemination of the UnitedNations materials on DU weaponry, as a number of prominent “anti-DU” groups do not raise the
16
Justice Sik Yuen refers to the “cavalier disregard, if not deception” by the users and developers of DU weapons oftheir effects. U.N. Doc. E/CN.4/Sub.2/2003/35 at para. 52.
17
There is a similar debate regarding what weapons-delivery mechanisms use DU weapons and where have DUweapons been used. These are also extremely important questions. However, the “controversy” about what systems
use DU weapons has no bearing on the illegality of DU weapons, and is best left to those with expertise in military
ordnance questions. Controversy about where DU weapons have been used also has no legal bearing on the illegality
of DU weaponry: wherever it has been used is an instance of the use of illegal weaponry. Knowing where DU
weaponry is used, however, is essential to carry out remedial measures.
18
Trying to prove which of possible multiple causes is the operative one can be difficult. However, there is a famouscase in which two persons shot at a man and the man was killed. It could not be proved affirmatively who killed the
man, so each defendant had to try to prove he didn’t kill the man. As that could not be done both were determined
guilty. There are many ways that attorneys in DU cases would be able to show sufficient causation.
19
The controversies about weapons-delivery and where DU has been used have, intentionally or inadvertently, alsoseemingly draws undue attention from or undermines information about the illegality of DU weaponry.
8
illegality of DU in their materials and do not have any references to the UN resolutions or the
reports of Justice Sik Yuen. While it is certainly important to have as accurate an understanding
of DU weaponry from all aspects (deleterious effects, weapons delivery, and location of all use),
resolving these questions will not change the fact that DU weapons are illegal or make DU
“more” illegal. DU is bad enough to be banned, and that is what should be as widely and quickly
disseminated as possible.
Is DU weaponry “nuclear” or “conventional?”
There is also conflicting opinion from scientists as to whether DU weapons should be
considered “nuclear” and thus also governed by the treaties dealing with nuclear weapons or
conventional (i.e. non-nuclear).
20 DU is also referred to as a “radiological”, or “poison”substance. While potentially important from a scientific perspective, the status of DU as
nuclear, radiological, poison or conventional does not change its illegality: when the weapons
test is applied to DU weaponry, it fails. Even if DU weapons are considered “conventional” they
are subject to the same weapons test set out here. Further, they would also be subject to the
Conventional Weapons Convention of 1980. That Convention itself incorporates most of the
elements of the weapons test set out here: civilians must be protected from the effects of
hostilities (Preamble, paragraph 3); “weapons, projectiles and materials and methods of warfare”
may not cause unnecessary suffering or superfluous injury (Preamble, paragraph 4); weapons
may not severely damage the natural environment (Preamble, paragraph 5). Paragraph 6 of the
Preamble sets out the Martens clause. The inclusion of these rules in this convention reinforces
the fact that these tests are universal and legally binding.
Consequences of use of DU weaponry in military operations
Under international law, there are a number of requirements to remedy breaches of the
Geneva Conventions and other rules forming the laws and customs of war. A minimum
requirement of the duty to remedy from use of illegal weaponry is compensation for victims.
21This can include, for example, military and civilian victims from wars and depleted uranium
weaponry use at military ranges. Part of the minimum remedy is the duty to disclose fully all
facts about the weapons and their development and deployment.
22 Regarding environmentaldamages, users of these weapons are obligated to carry out an effective clean up. When lands and
water resources cannot be effectively cleaned up, the State causing the damage must pay
damages equal to the loss of those lands and waters from the national patrimony. In US dollars,
the cost of legal claims and environmental cleanup for the Gulf Wars alone could be staggering.
In addition to liability for damages to victims or the environment, users of DU weapons
should face penal sanctions under existing humanitarian law provisions. For example, the
20
The United States tries to foster the idea that as DU weaponry is “conventional” it is not banned -- giving theerroneous impression that conventional weapons are not subject to the weapons test.
21
The Hague Convention of 1907, Article 3.22
The Corfu Channel case underscores the duty to disclose.9
Geneva Conventions of 1949 require that signatory States have domestic legal mechanisms for
trying persons alleged to have committed serious violations of humanitarian law.
23 Article 146further states that all signatory states have a duty to search for alleged violators and to bring them
to its own tribunals, regardless of their nationality. Article 148 prohibits any State from
absolving itself or any other State from liability for serious violations.
Because of these provisions in the Geneva Convention, the “agreements” sought and
obtained by the United States under which other States agreed to not bring actions against United
States military personnel for a number of years must be considered null and void to the degree
those agreements violate provisions of Geneva Conventions. While the United States might be
able to obtain anticipatory agreement to not bring US military personnel before the International
Criminal Court to which the United States is not a party, the United States cannot abrogate these
Geneva Conventions rules or require that other States abrogate Geneva Convention rules.
Grounds for considering DU weaponry use in military operations a war crime and crime
against humanity
Some argue that use of DU weaponry, while in violation of existing norms, would not
constitute a war crime or crime against humanity.
24 I disagree. War crimes and crimes againsthumanity are defined in the Nuremberg Charter, in the “grave breach” articles of the Geneva
Conventions and Protocols Additional to the Geneva Conventions, and in other sources as set out
in international treaties on war crimes and crimes against humanity.
25 In the 4th GenevaConvention (protection of civilians), for example, grave breaches include “willful killing . . . or
inhumane treatment, . . . willfully causing great suffering or serious injury to body or health” of
civilians -- which is exactly what DU weapons do.
26 Article 85 of Protocol Additional I addsindiscriminate attacks affecting civilians and other acts that necessarily occur with the use of DU
weaponry to the enumeration of “grave breaches.” The genocidal effects on people long after
hostilities cease is another ground for consideration of DU weapons use as a crime against
23
Geneva Convention IV, Article 146. This provision is an all four conventions. For convenience, I cite to the articlenumbers from Geneva Convention IV (civilians).
24
Some have argued that DU weapons are not weapons of mass destruction, therefore their use would notnecessarily constitute a war crime. In my many statements and papers I have never urged that DU weapons are
weapons of mass destruction. I merely set out the four- part test for weapons and showed why DU violates all four
elements of the test. Use of a weapon that fails the test is, as I have set out, necessarily a war crime. The term
“weapons of mass destruction” is currently in wide use in the international arena, and I find the term used much
more politically than legally. I avoid that term, and keep my focus on the test. If a weapon violates even one element
of the four- part test it is illegal, so the added “baggage” of weapon of mass destruction is not needed. That said, I
think that if there would be specific criteria for weapons of mass destruction, DU weaponry would meet that criteria,
especially because of its continuing damage for many years after military use.
25
See, esp., Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes AgainstHumanity, 754 UNTS 73. This treaty identifies genocide and as crimes against humanity. The elements of war
crimes and crimes against humanity set out by the International Criminal Court are also instructive on these points.
26
Note that the same article exists in the other three Geneva Conventions of 1949 so it is equally illegal to killcombatants with DU. A fundamental rule of armed conflict law is that combatants may only be targeted with
weaponry when they are “in combat” -- meaning “on duty” and not sick, wounded or a POW.
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humanity.
Conclusion
In the course of armed conflicts (wars), weapons may only be used against legal military
targets and for the duration of the war. Weapons may not cause undue suffering or cause
superfluous injury. Weapons may not use or employ “poison.” Weapons may not severely
damage the environment. DU weaponry cannot be used in military operations without violating
these rules, and therefore must be considered illegal. Use of illegal weapons constitutes a
violation of humanitarian law and subjects the violators to legal liability for their effects on
victims and the environment as well as criminal liability. In my view, use of DU weaponry
necessarily violates the grave breach provisions of the Geneva Conventions, and hence its use
constitutes a war crime or crime against humanity.
SELECTED BIBLIOGRAPHY
27The Hague Conventions of 1899 and 1907 (and Regulations).
The Geneva Conventions of 1949 (I-IV).
Protocols Additional I and II to the Geneva Conventions (1977).
The Convention on the Prevention and Punishment of the Crime of Genocide (1949).
The Statute of the International Criminal Court, and the “Elements of Crimes” set out by the
Preparatory Commission.
The Law of Armed Conflict at the Operational and Tactical Level, Government of Canada,
Office of the Judge Advocate General, Document B-GG-005-027/AF-020, Ottawa, 1999.
Available at the website of the Judge Advocate General. I consider this one of the best national
manuals of armed conflict law for use by military personnel.
United Nations. Sub-Commission on the Promotion and Protection of Human Rights resolution
1996/16.
27
This bibliography is limited to major texts regarding humanitarian law, the best national military manual of thelaws and customs of war (the Canadian manual), the major UN documents on the illegality of DU, and some of my
written submissions to the UN regarding DU weaponry. It does not contain references to UN summary records of
my oral statements or any of the general debates. Reference to certain summary records are made in the text and
they and any “posted” summary record can be accessed at the website of the Office of the High Commissioner for
Human Rights.
11
United Nations. Sub-Commission on the Promotion and Protection of Human Rights resolution
1997/36.
United Nations. Report of the Secretary-General. U.N. Doc. E/CN.4/Sub.2/1997/27 and Adds.
Human rights and weapons of mass destruction, or with indiscriminate effect, or of a nature to
cause superfluous injury or unnecessary suffering, Working paper submitted by Y.K.J. Yeung
Sik Yuen, U.N. Doc. E/CN.4/Sub.2/2002/38.
Human rights and weapons of mass destruction, or with indiscriminate effect, or of a nature to
cause superfluous injury or unnecessary suffering, Working paper submitted by Y.K.J. Yeung
Sik Yuen, U.N. Doc. E/CN.4/Sub.2/2003/35.
Parker, Karen, Depleted Uranium at the United Nations: A Compilation of Documents and
Explanation and Strategy Analysis, Campaign Against Depleted Uranium, Manchester, 2000.
Parker, Karen, “Depleted uranium and the Gulf War”, written statement on behalf of IED/HLP,
U.N. Doc. E/CN.4/1997/NGO/49.
Parker, Karen, [Weaponry and Humanitarian Law], written statement on behalf of IED/HLP,
U.N. Doc. E/CN.4/Sub.2/1997/NGO/19.
Parker, Karen, “Weapons, Human Rights and Humanitarian Law,” written statement on behalf of
IED/HLP, U.N. Doc. E/CN.4/Sub.2/1998/NGO/25.
Parker, Karen, [Sanctions Against Iraq: Human Rights and Humanitarian Law Considerations],
written statement on behalf of IED/HLP, U.N. Doc. E/CN.4/1999/NGO/199.
Parker, Karen, [Weapons and humanitarian law], written statement on behalf of IED/HLP, U.N.
Doc. E/CN.4/Sub.2/2003/16.
Note: The Hague Conventions are found at www.cicr.org. Choose language. Go to “treaties and
documents”, scroll to “Convention (IV) respecting the laws and customs of war on land and its
annex, 18 October 1907. Click on small symbol at the end of the title for the text. Use the same
general instructions for The Hague Convention of 1899. This website of the International
Committee of the Red Cross also contains a number of interesting articles on the application
humanitarian law.
All the other Conventions are found on the website of the Office of the United Nations High
Commissioner for Human Rights, www.ohchr.org. From list on left, click on “Treaties’. Scroll
down to “War Crimes and Crimes Against Humanity” and “Humanitarian Law” at end of list.
For UN documents, the easiest way is to retrieve by document number. Start at www.ohchr.org,
from list at left, select “documents.” At next screen, select “Charter-based.” When a list of
documents appears, click “symbol number” at top. The next screen will have a small box. Type
12
in the document number. Do not type in “U.N. Doc.”, but only the “E” number. Example:
E/CN/4/Sub.2/2001/SR.24. (This is the summary record of part of the debate on DU at the 2001
session).
For resolutions and decisions of the Sub-Commission, start at www.ohchr.org, from list at left
select “By body”. At next screen, select “Sub-Commission”, at next screen select year, and then
“decisions and resolutions.”
For the Statute of the International Criminal Court, go to www.un.org/law/icc. For the “Elements
of Crimes” start at ICC home page, go to “Preparatory Commission for the ICC, then to
“Elements of Crimes.”