4-5 NOVEMBER 2000


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.



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.


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

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.


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

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.


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

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.


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.


Back to Irish CND page on depleted uranium