STATEMENT OF KAREN PARKER
INTERNATIONAL CONFERENCE
CAMPAIGN AGAINST DEPLETED URANIUM
MANCHESTER, UK
4-5 NOVEMBER 2000
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This statement is to set out why DU weaponry is already illegal
and to
provide information regarding the DU initiative at the United
Nations.
The DU initiative at the United Nations began in 1996 when
my
organization, International Educational Development/Humanitarian
Law
Project, first heard of DU weaponry and I began to incorporate
the issue
of DU in my speeches and lobbying efforts. From the beginning
of our
work we have had two main positions: (1) that DU weaponry is already
illegal under existing human rights and humanitarian (armed conflict)
law; and (2) the United Nations human rights forums are appropriate
places to address this illegality. The fact that the UN took up
this
issue as soon as we presented it supports our positions.
Our first presentations at the UN Commission on Human Rights
(the
Commission) in Spring 1996 focused on the use of DU weaponry in
the Gulf
War. We continued this emphasis 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 Promotion
and Protection of Human Rights (the Sub-Commission). At that session,
members of the Sub-Commission were highly moved by our presentation
on
DU weaponry and as a result passed a resolution in which the
Sub-Commission found DU weaponry "incompatible" with
existing
humanitarian and human rights law. The Sub-Commission also set
up a
procedure to address DU weaponry (and other "bad" weapons)
in light of
these existing norms. This is exactly what we wanted. In 1997
the
Sub-Commission adopted another resolution in which it repeated
its
finding that DU weaponry is "incompatible" with existing
humanitarian
and human rights law.
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WHY IS DU WEAPONRY ALREADY ILLEGAL?
A full explanation of why DU weaponry is illegal is included
in my
Memorandum on Weapons and the Laws and Customs of War (1997) that
I
submitted to the UN Secretary-General as part of the UN initiative.
The
full Memorandum as well as excerpts published in various UN documents
are included in my report DU at the UN, published and available
from
CADU. I herein provide a brief summary.
A 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.
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.
In other
words, in evaluating whether a particular weapon is legal or illegal
when there is not a specific treaty, the whole of humanitarian
law must
be consulted.
There 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 criteria. (The "temporal" test).
(3) Weapons may not be unduly inhumane. (The "humaneness" test).
(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. (2) It continues
to act after hostilities are over and thus fails the temporal
test. (3)
It is inhumane and thus fails the humaneness test. DU is inhumane
because of how it can kill -- by cancer, kidney disease, etc.
long after
the hostilities are over. DU is inhumane because it causes birth
(genetic) defects thus effecting children (who may never be a
military
target) and who are born after the war is over. The use of DU
weapons
may be characterized as genocidal by burdening gene pools of future
generations. (4) DU cannot be used without unduly damaging the
natural
environment and thus fails the environment test.
WHAT CAN THE COMMISSION AND SUB-COMMISSION DO ON THE DU ISSUE
(THE "WHY
BOTHER" QUESTION)
We took this issue to the Commission and Sub-Commission because
in our
view these bodies are the places best suited to advance our position
that DU is already illegal and cannot be used in military operations
without violating existing humanitarian and human rights law.
The fact
that the Sub-Commission agrees and has formally taken up these
weapons
indicates its understanding that weapons may be banned by operation
of
existing law and that DU is one of those weapons. The Sub-Commission
also acknowledges that this is an appropriate subject for the
UN human
rights bodies. In this sense, we have already won. What remains
is to
fill in the details.
Existing customary humanitarian law is "found" by
a legal test that the
United States Supreme Court, as early as the nineteenth century,
called
long-existing. The statutes of both the Permanent International
Court of
Justice (League of Nations) and the current International Court
of
Justice (United Nations) contain the same legal test. According
to this
legal formula customary law is "found" by consulting
similar treaties on
the subject (i.e. other weapons-banning treaties); international,
regional or local laws(i.e. humanitarian and human rights law);
declarations or decisions on the subject (i.e. the Sub-Commission
resolution); judicial (court) opinions (i.e. the ICJ's Nuclear
decision); fundamental legal principles; and as an auxiliary means,
the
opinions of "experts" (i.e. the NGOs, governments, Sub-Commission
members who address the issue at the UN bodies).
We want others to consult not only all relevant treaties of
humanitarian law (many ratified by the US) but also the other
sources of
humanitarian law when evaluating DU. We are convinced that such
a
consultation of these sources yields same conclusion reached by
the
international experts that comprise the Sub-Commission -- DU is
already
banned.
Besides other useful provisions of treaty-based humanitarian
law, there
is a particularly relevant one: 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." We wanted to invoke "the
dictates"
in showing the huge anti-DU network. Thus the existence of the
anti-DU
network is legally relevant to the finding that DU is illegal.
The UN
forums do not need to have the whole DU community present, but
the more
the international community is aware of that community, the more
evidence we show that DU is banned by the dictates of the public
conscience alone
The United Nations forums are ideal places to give the international
community opportunities to comment (as "experts") on
the illegality of
DU, thus making it much more difficult if not impossible to argue
to the
contrary. Our own statements are accepted as "expert"
opinion, so we
are advancing our own case to bring it up in the UN forums. We
also get
other governments, members of the Sub-Commission, members of the
Secretariat (including the Secretary-General) and NGOs (other
"experts")
to support our findings -- as they have done with statements,
resolutions, submissions for the Secretary-General's report and
at
sessions every year. Thus we are reinforcing the law by constant
"padding" of the record.
While I wrote the Memorandum to circulate at the UN to further
the
application of customary international law to DU and to enhance
the
"dictates" argument, I also wrote it because legal criteria
for weapons
was not set out in any one place. Circulating my "4-point
test" (which
of course I derive from existing humanitarian law) also gives
the
international community an opportunity to verify and validate
this test.
At this point, there seems to be clear acceptance in the international
legal community at the UN that my test is "the test."
As that is so,
then DU is illegal because it so clearly fails the test -- as
is any
other weapon that fails.
There is a great value in stressing that DU is already illegal.
Of
course the first goal is to enhance the likelihood that victims
of this
illegal weaponry will obtain treatment and compensation. If DU
is
already illegal (and it is) then it makes possible legal actions
in
domestic courts for adverse effects of DU weaponry in combat.
Further,
groups seeking better benefits and programs for veterans can be
more
effective. A major secondary goal in establishing that DU is already
illegal is to prevent its future use and proliferation.
WHAT SHOULD THE DU COMMUNITY DO TO FURTHER THE UN WORK?
Organizations that wish to help this UN initiative can best
help us by
collecting information (documentation, including new developments
in the
"science") and continuing the publicity and community
organizing they
are now doing but with an added dimension of disseminating the
UN work
-- especially regarding the finding of DU's illegality by the
UN
Sub-Commission.
There are other useful ways to buttress the Sub-Commission's
opinion.
For example, the International Committee of the Red Cross (ICRC)
recently urged a moratorium on cluster bombs because of their
inherent
incompatibility with existing humanitarian law norms. Efforts
could be
made to convince the ICRC to issue a similar statement regarding
DU.
Geneva-based UN specialized agencies (the World Health Organization,
UNICEF, UNHCR) could also be urged to issue statements on the
illegality
of DU.
WHY NOT WORK ON A DU-BANNING TREATY?
Our organization and an increasing number of other human rights
organizations are leery of efforts to have new treaties. Part
of this
reluctance is the huge financial outlays given the length of time
it
takes -- the treaty process can take years, the meetings can take
place
anywhere, any time. Furthermore, only governments ratify treaties
and
ultimately decide on their contents. Although human rights lawyers
(myself included) have drafted substantial portions of international
instruments, it is ultimately governments that decide. Thus, NGOs
have
far less impact on treaties then we have on UN declarations, resolutions
and the like. In many circumstances, NGOs are not part of the
process at
all.
The new "trick" of the US (and a few other governments)
is to use
treaty processes to try to weaken existing customary law. The
United
States tries to assert that if there is a treaty on a subject,
then any
pre-existing customary international law on the subject is terminated.
Thus in terms of DU, even beginning the process to draft a treaty
would
be used by the US to argue that any ban on DU in light of existing
customary law is terminated. This would be devastating in the
US because
Courts in the US are likely to be persuaded on this point even
though
the International Court of Justice categorically rejects this
line of
reasoning in the Nicaragua case. (Note the US also "declined
jurisdiction" of the Court in the Nicaragua case although
the US is not
legally allowed to do so. Neither the US Congress nor its Courts
took up
this matter.)
The US would almost certainly not ratify a treaty on DU regardless
of
the language of the treaty -- which for sure the US would control.
However, the US would still argue that the existence of the treaty
subsumes the customary international law banning DU. We lawyers
would be
at a tremendous if not fatal disadvantage trying to win compensation
claims for DU victims in US (and possible UK) courts. It also
would
clearly be more difficult for Gulf War veterans to take their
issues
directly to the Veteran's Administration as the VA would be taking
the
position that no illegality was involved.
REBUTTAL TO THE OTHER PANELIST
The other panelist began her statement by disagreeing with
me on
whether DU weapons are weapons of mass destruction. In my statement
I
never said DU weapons are weapons of mass destruction, but merely
set
out the four part test for weapons and showed why DU violates
all four
elements of the test. The term "weapons of mass destruction"
is being
widely thrown around these days 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.
The panelist also disagreed that use of DU weaponry would constitute
a
war crime or crime against humanity. Although once again I did
not raise
this point in my presentation (others had in theirs) I would like
to
respond here. War crimes and crimes against humanity 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 the international treaty on war crimes
and
crimes against humanity. In my view, use of an illegal weapon
would
necessarily violate the grave breach provisions of the Geneva
Conventions, and hence that use would constitute as war crime
or crime
against humanity.
The panelist focused on the issue of proportionality - an important
principle of humanitarian law. This proportionality analysis (and
the
related "military necessary" analysis) would only come
into play if DU
weaponry was legal but was alleged to have been used in a way
that
violates either proportionality or military necessity. As I agree
with
the UN Sub-Commission that DU is illegal, then these two doctrines
are
not invoked regarding military use of DU.
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