Depleted Uranium And
International Law
By Nikhil Shah
23 October, 2004
Countercurrents.org
I. Introduction
The legality of Depleted Uranium (DU) has become a contentious issue in the past decade as the different health and environmental effects of its use have been revealed.[1] Depleted Uranium is by definition a lethal radioactive and toxic weapon, although the extent of its toxicity is disputed.[2] While there are grounds to claim that the use of DU weapons violates international law, a stronger case could be made for it violating the principles of international environmental law as opposed to international humanitarian law.[3] This is due to the lack of conclusive scientific evidence about the effects of DU and the somewhat restrictive interpretation of international humanitarian laws put for by the International Court of Justice (ICJ) in the nuclear weapons case.[4] It would be easier to show that the use of DU violates emerging principles of international environmental law such as the precautionary principle and the principle of intergenerational equity due the lower scientific threshold and greater burden of proof on the party using a lethal substance like DU.[5]
Section II of this article will give some background as to the controversy surrounding the use of DU. Section III of this paper will talk about the humanitarian laws of war as defined by the Hague and Geneva conventions and discuss the dubious legality of DU under this criteria. Section IV will discuss two different principles of international environmental law and how DU use could be seen as a violation of them. Section V will conclude by recapping the dangers of DU use and the need to use the existing legal mechanisms in international law to limit its use and to eventually lead to its prohibition.
II. The Politics of Depleted Uranium
Depleted Uranium is a waste product resulting from the enrichment process of natural uranium and is used for both military and civil purposes.[6] As a metal it is extremely thick and dense and when fired at a speed of 1,200 meters per second it can pierce tank armor or a block of concrete three meters underground.[7] This is because DU burns fiercely and rapidly and carbonizes everything in its way while it is transformed into fine uranium oxide powder.[8] The costs of using it are very minimal as it is a waste product from the nuclear industry and it provides a partial solution of what to do with nuclear waste.[9]
By definition depleted uranium is extremely toxic.[10] Most renowned books on chemistry describe it as toxic both from a chemical and radiological standpoint and state that even a small dosage of exposure to the air can be lethal.[11] When depleted uranium ammunitions hit their targets, they release radioactive particles and dust containing toxic heavy-metal elements.[12] The uranium is liable to spontaneous combustion and produces vapors that burn at very high temperatures.[13] Depleted Uranium weapons were used by the U.S. and U.K. in Iraq and Afghanistan and by NATO countries in Yugoslavia.[14]
The lethal radioactivity of uranium poses risks to both the environment and human beings. DU poses an external radiation hazard if the metal comes in contact with or is close to a human body for a long period of time but it is the most dangerous when it enters the body through the respiratory system or an open wound.[15] While most of the depleted uranium is secreted from the human body after ingestion, significant amounts deposit in the kidney and bone, and to a lesser extent in other tissues including the muscle, lung, brain, lymph nodes, and testes.[16] This internal radiation source has been linked to health problems which include increased rates of cancer, birth defects, brain lesions, depressed immune systems and damage to skin, respiratory and digestive tracts.[17] Many civilians in Iraq and Yugoslavia and US and British veterans have complained of these health effects several years after the war.[18]
While the military authorities have denied the contaminating effects of these weapons both for the environment and the surrounding populations, the US army dossiers from 1990 have warned about dangers from accidents with DU. The dossier from 28 September, 1990 warned that no equipment or materials involved in the accident/incident should be removed until they have been monitored and decontaminated by radiation protection personal.[19] Just prior to the Gulf War, the U.S. Army Armament, Munitions, and Chemical Command released a report which warned that exposures to DU could have “radiological and toxicological effects,” to soldiers in the battlefield and could cause cancer when exposures are internal.[20] Studies by the U.S. Armed Forces Radiobiology Research Institute have also found that rats implanted with DU metal were susceptible to cancer, immune system damage, central nervous system problems, and damage to the male and female reproductive systems.[21] Another study by the Lovelace Respiratory Research Institute in New Mexico (funded my the US Army) found that DU fragments cause cancer when implanted in the muscle of rats.[22] Doug Rokke, ex-director of the Pentagon’s depleted uranium project and former professor of environmental science at Jacksonville University, said that DU weapons were “weapons of mass destruction” and its use a “war crime.”[23]
The Pentagon, however, has continuously tried to downplay the effects of DU. It has created quasi-scientific reports denying that any soldiers and civilians could be sick from DU ignoring the calls of their own military DU researchers for further research and investigation.[24] The Pentagon also claimed that the implication of the studies on rats have remained unclear as to their effects on humans and that further studies are needed in this area.[25] The Pentagon also used reports by RAND, Institute of Medicine (IOM), and the US Department of Veterans Affairs to support their position on denying the negative effects of DU although they ignored the deficiencies of the report.[26]
In 1999, The RAND Corporation released a report stating that it was unlikely that the health of Gulf War veterans had been affected by DU.[27] However, RAND based it conclusions on “incomplete and misleading” exposure data provided by the Pentagon.[28] The reports independence was also undermined by the fact that one of its primary authors simultaneously worked for the Pentagon’s Gulf War illness investigation.[29] The IOM conducted an independent US investigation of DU and found that exposure to very low levels of DU was unlikely to result in the development of lung cancer or kidney problems.[30] However, the committee admitted that it lacked accurate exposure information about Gulf War veterans and civilians to determine whether DU exposure might result in increased rates of lymphatic and bone cancers, nervous system disease, or immune system damage.[31] In 1999 the U.S. Department of Veterans Affairs conducted a study of 51 Gulf War veterans exposed to DU in friendly fire incidents.[32] The study revealed that only one veteran had Hodgkin’s lymphoma and another had a bone tumor.[33] The Pentagon later was forced to acknowledge that that the fifty-one veterans were only a tiny fraction of the thousands of veterans that were potentially exposed to DU contamination.[34]
The Pentagon has also frequently cited the 2001 reports from the World Health Organization (WHO) and the United Nations Environment Programme (UNEP) Balkans Task Force in claiming that DU is innocuous.[35] These organizations were compelled to conduct investigations about the effects of DU use due to the outcry that had erupted in Europe about the growing number of unexplained deaths and illnesses among peacekeepers exposed to the hazardous substance, especially after the war on Yugoslavia.[36] The WHO study could not identify any illness among local populations directly related to DU and stated that any radiation was within acceptable levels, but recommended further health monitoring.[37] UNEP’s Balkan Task force determined that localized contamination at impact sites poses little immediate health risk to local population, but it expressed concern about contamination of groundwater and the collection of DU penetrations by civilians (which was documented in Iraq and Kosovo).[38]
The WHO study, however was criticized as being unreliable and at odds with current scientific knowledge.[39] The WHO was accused of not taking a proper epidemiological study, but only an academic desk study.[40] The WHO was also criticized for studying DU in narrow terms due to pressure by the International Atomic Energy Agency.[41] The UNEP study was seen as compromised by many.[42] This was due to the presence of NATO troops that accompanied the researchers and prevented them from any contract with DU unexploded and sub-munitions and even from discovering their existence.[43] The European Commission reported that up to 95 percent of the DU rounds shot by American jets did not hit any targets and were likely to be lying intact on the ground.[44] The UNEP taskforce recommendation that the appropriate authorities undertake the mark-up and clean up of all DU contaminated sites has also not been fulfilled by any parties.[45] The U.S. fears that any such move might force it to concede the dangerous radioactive effects of DU and might set a precedent for cleanups in every country where it has been used.[46]
The Pentagon also ignored or criticized as inadequate other studies that come to different conclusions about the effects of DU. Roger Coghill, a British biologist, predicted the use of DU weapons would generate more than 100,000 fatal cancer cases.[47] Dr. Hari Sharma, of the University of Waterloo in Ontario and Patricia Horn discovered DU in half of the gulf war vets they tested several years after the war.[48] A study of cancer and leukemia in Iraqi soldiers from heavily bombed areas showed extraordinary increases in lymphoma and brain cancer.[49] The Pentagon dismissed many of these studies as they have not been peer reviewed despite the surprising similarities and timing between diseases and deformities in Gulf War veterans, their families and the Iraqi population that these reports found.[50]
While there isn’t unanimous consent about the extent of radioactive effects of DU, its use has been so controversial that the U.S and Britain are the only countries that continue to use it.[51] Most governments, including NATO governments and U.S. allies such as Germany, Canada, the Czech Republic, Norway, and the Netherlands have foresworn the use of DU weapons.[52] Most democratic governments are not willing to accept the health, environmental and the resulting political problems associated with the use of DU.[53] The U.N. Commission on Human Rights in 1996 and again in 2002 seemed to confirm these effects of DU and take a step in the direction of banning these weapons when it categorized DU as a “weapon of indiscriminate effect” and which could violate the international laws of armed conflict.[54] Unfortunately, unlike European countries, there has been relatively little discussion or debate about DU in the U.S. as the Pentagon has continuously refused to acknowledge its dangers despite numerous reports to the contrary.[55]
III. International Humanitarian Laws and Depleted Uranium
A. Introduction
The legality of DU would first be governed by the laws of humanitarian warfare which stipulates the standards for acceptable weapons of warfare. These standards are laid out in the Hague Conventions of 1899 and 1907, the Geneva Conventions of 1925 and 1949 and the additional Protocol I to Geneva added in 1977.[56] Although these principles do apply to DU use due to its radioactive nature and effects, it would be hard to justify a total ban solely on these standards due to inconclusive scientific evidence and the restrictive World Court opinion on nuclear weapons.[57]
B. International Humanitarian Laws of Warfare
General humanitarianism in war has been accepted by many cultures in the world, even though they may not be universally adhered to.[58] As the brutalities of war became apparent at the end of the 18th century, many nations decided that certain acts of warfare were “inhumane” and not necessary for defeating the enemy.[59] What emerged was a body of international law, termed the humanitarian laws of warfare, which prohibit certain acts during warfare while not prohibiting war itself.[60] These principles were accepted by most states, including the U.S. and U.K.[61]
The Hague Conventions of 1899 and 1907 were the earliest binding codification of the laws of warfare to set limits to the means and methods of armed conflict and define the scope of what may be legitimately used.[62] Article 22 of Hague IV (Laws and Customs of War on Land) states that “the right of belligerents to adopt means of injuring the enemy is not unlimited” and Article 3 directs that a state “shall be responsible for all acts committed by its armed forces.” [63] Article 3 has been widely interpreted to mean that if a state violates the laws of armed conflict, they should be held responsible to the injured parties.[64] Article 23 of Hague IV states that it is specially forbidden to:
23(a) To employ poison or poisoned weapons
23(e) To employ arms, projectiles, or material calculated to cause unnecessary suffering
23(g) To destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war.[65]
After the use of gases on a great scale during World War 1 (in violation of the Hague Convention), the ban on poison gas was addressed more effectively in the 1925 Geneva Gas Protocol.[66] The Protocol expanded the prohibition to the use of asphyxiating, poisonous or other gases, and all analogous substances including bacteriological methods of war.[67] This expansion was thought necessary due to the persistence of some chemicals and how they can spread easily across the environment into the food chain.[68]
In keeping with the scope of articles 23(g) and other core principles of the Hague Conventions, the customary principles of proportionality, discrimination, humanity and necessity were developed to apply to armed conflict. The principle of proportionality prohibits methods of warfare likely to cause injury to civilians in excess of any concrete and direct military advantage.[69] The principle of discrimination requires belligerents to discriminate between military and non-military targets and between combatants and non-combatants.[70] The humanity principle prohibits wanton attacks on civilians, as well as acts or threats if the primary purpose is to terrorize civilians.[71] Finally, principle of military necessity justifies measures not forbidden by international law which are indispensable for securing the prompt submission of the enemy with the least possible loss of economic and human resources.[72]
The Hague Conventions also deal with the laws of neutrality which apply to means of warfare. Article 1 of Hague V: Convention Respecting the Rights and Duties of Neutral Powers in Case of War on Land and Article 1 of Hague XIII: Rights and Duties of Neutral Powers in Naval war states that:
Hague VII (1) The territory of neutral Powers is inviolable
Hague XIII (1) Belligerents are bound to respect the sovereign rights of neutral Powers and to abstain, in neutral territory or neutral waters, from any act which would, if knowingly permitted by any Power, constitute a violation of neutrality.[73]
The ICJ in Paragraph 89 of its famous advisory opinion on the use of nuclear weapons said that these principles of neutrality apply “to all international armed conflict, whatever type of weapons might be used.”[74] Hence, states must respect the laws of neutrality and the sovereign rights of neutral states when it comes to using weapons in warfare.[75]
There was no direct reference to the environment in either the Hague or the Geneva Conventions of 1925 and 1949. The increased awareness of environmental concerns led to the Additional Protocol I to the 1949 Geneva Conventions.[76] Protocol I was the first modern convention specifically protecting the environment in time of war and balanced it with human interests.[77] The relevant provisions that apply to DU use can be found in articles 35 and 55:
Article 35. Basic Rules
2. It is prohibited to employ weapons, projectiles and material and method of warfare of a nature to cause superfluous injury or unnecessary suffering.
3. It is prohibited to employ methods of means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.
Article 55
1. Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby prejudice the health or survival of the population.[78]
The difference between Article 35(3) and 55(1) is that the former prohibits causing damage (with intent) whereas the later imposes a standard of care (human reliance).[79] The conjunctive use of the terms “widespread, long-term, and severe” clearly contemplates a high threshold of damage before the prohibitions are implicated.[80] Most commentators have interpreted this threshold to apply to a military act that causes a major interference with human life or natural resources, which considerably exceeds the battlefield damage and the effects of which lasts for several decades.[81] Some see these provisions as directed only at unconventional means of warfare such as a massive use of herbicides or chemical agents.[82] The later interpretation however, is subject to debate as such unconventional means have been addressed separately and specifically in the Biological and Chemical Weapons Conventions of 1972 and 1993.[83] Once the high threshold of Article 35(3) and 55(1) have been reached however, they can override the traditional principles of necessity and proportionality.[84]
In addition to the environmental provisions, the Additional Protocol formally codifies the customary international law provisions of indiscriminate attack and clearly defines it in the following provisions:
Article 51
4. Indiscriminate attacks are prohibited. Indiscriminate attacks are:
(a) Those which are not directed at a specific military objective;
(b) Those which employ a method or means of combat which cannot be directed at a specific military objective; or
(c) Those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.[85]
Thus, the principle of indiscriminate attacks provides great protection to civilians as it calls for the minimization of collateral damage and incidental injury, especially if they are reasonably foreseen.[86] Most weapons such as biological and chemical weapons that have been incapable of following the discrimination principle have been prohibited through conventional law.[87]
The United States has signed but not ratified the treaty primarily due to reservations about targeting dual use facilities and the ‘national liberation’ provisions and as they pertain to the law on captives.[88] Despite the non-ratification, the Regan administration simultaneously announced its willingness to be bound by those provisions of Geneva Protocol I that enunciate customary international law.[89] The U.S. acknowledged that most of Protocol I is customary law and thus binding on its armed forces.[90] It is unclear however, whether the U.S. views these particular environmental provisions as part of customary international law as it has called them excessively broad and expressed reservations about them.[91]
Another principle found in the Geneva Convention Additional Protocol of 1977 and which is also part of customary international law is the Martens Clause.[92] The Martens Clause confirms that the laws of war apply to weapons and methods of warfare not specifically mentioned in different conventions and those weapons could be prohibited despite the lack of a convention that bans them.[93] The burden of proof was on the state using the new weapon to justify its use under the existing norms of international humanitarian laws.[94] This principle was originally set forth in the preamble of Hague IV of 1907 and shows that even the drafters of the convention then understood that technological advancement could lead to new weapons which could be more destructive and inhumane than weapons that were already banned like expanding bullets or poison.[95] The ICJ used this principle in finding nuclear weapons illegal, despite the absence of a convention prohibiting its use.[96]
C. DU and International Humanitarian Law
The first principle to be analyzed is whether DU is a weapon which causes unnecessary or aggravated devastation or suffering in violation of Hague IV 23(e) and Geneva additional Protocol I 35(2). As mentioned before, DU particles can cause long-lasting health problems when ingested by military personal and civilians (possibly for the rest of their lives).[97] It can remain in the liver, kidney, bones or other tissues, eradicating those tissues for years.[98] Even the Department of Defence (DOD) admits that the shrapnel and gasses released from a DU weapon are radioactive.[99] This is even more concerning as most DU use tends to be around urban areas, where people live, work, draw water and grow food and are thus more likely to suffer its radioactive effects.[100] These radioactive effects could also have an impact on the environment and be covered by Hague IV 23(e) as any human suffering caused by environmental damage would be within the scope of the principle.[101]
Both the U.S. and NATO countries, however, have denied the health and environmental effects of DU and rely on certain international reports to complement their views and reject others that contradict it.[102] It could be argued that the U.S. and NATO’s refusal to even acknowledge some dangers of DU use is extraordinary in light of the proliferation of reports warning about possible harms in the last ten years as well as very lethal nature of the substance.[103] The U.S. and NATO have also relied on inconclusive reports to come to their bold conclusion denying any serious health effects of DU use and have often misled the public, the press and Congress about the matter.[104] Most of their initial studies of the armed forces dealt with the effects of DU on their own personal and not their targets.[105] Despite the flaws in the evidence put forth by the U.S. and NATO, it is unlikely that the effects of DU use can be established for certain.[106] In order to ban the use of DU or to compel nations to stop using it due to unnecessary or aggravated devastation or suffering, more definitive scientific studies are necessary.[107] These studies, however, would need to be conclusive and study the effects on combatants and non-combatants alike.[108]
Another shortcoming of the principle of unnecessary or aggravated devastation or suffering is that DU users may insist that there is no alternative to its use in most situations in order to achieve the military objective.[109] They would argue that there is no useable metal as hard as uranium and therefore any of the suffering that accompanies DU use is necessary.[110] The only alterative is the use of tungsten which is not as effective and needs to be imported as opposed to DU which is a waste product from the nuclear industry (and costs nothing.)[111]
The prohibition against indiscriminate harm as a basis of customary international law and as stipulated in Geneva Additional Protocol I 51(4) is more applicable to DU as it cannot be derogated by military necessity.[112] DU shells spread over vast areas and can remain lethal for thousands of years or longer. [113] The U.S. Army’s Environmental Policy Institute stated in 1995 that radioactivity only begins to diminish after 4,500 million years.[114]
Although the impact of a DU weapons can be contained within the targeted area, its spread after impact cannot.[115] Upon contact, the uranium metal partially burns producing uranium oxide which can be spread by the wind to great distances.[116] When released in the air, it can be internalized by breathing smoke containing DU particles, ingestion of food or water contaminated by DU, inhalation or ingestion of resuspended particles or contamination of wounds by DU dust.[117] Scientists in Greece reported that radiation levels there increased by twenty-five percent when winds would blow in from Kosovo and similar concerns have been voiced about Kuwait.[118] In addition, there are numerous DU projectiles in Iraq that have been left on the ground after the war and since been covered with sand.[119] As rain falls in these desert regions, the toxic substances permeate the ground water and enter the food chain.[120] Most doctors and scientists agree that even mild radiation is dangerous and can increase the risk of illnesses like cancer.[121] These factors show that protected civilians would be threatened even if they were a long distance from the target.[122] Such incidents have occurred as cancers have been found among Iraqi refugees in Iran who were near areas that came under allied fire close to the border of Kuwait.[123]
DU’s use would also affect the offspring of military personal and civilians that might have come in contact with and ingested it.[124] It is estimated that sixty-seven percent of children born to U.S. Gulf War veterans had severe illness or birth defects.[125] Also, studies by Iraqi doctors have found that DU is responsible for an increase in stillbirth and birth defects such as babies born with no eyes, brains, limbs, genitalia, internal organs on the outside and grotesquely deformed little heads and bodies.[126] Despite the fact that these reports are not fully conclusive, any indiscriminate harm that DU would cause these offspring would be contrary to humanitarian principles as they are non-combatants.[127]
The problem that arises with this argument is that all states accept the fact that a certain amount of collateral damage will occur to civilians when military facilities and personal are targeted.[128] To ban DU weapons with the indiscriminate harm argument it would need to be proven that disproportionate damage to civilians actually occurred in relation to the military purpose.[129] However, it is the duty of the party using DU weapons to minimize collateral damage and incidental injury as much as possible even if that requires those conducting military operations to forgo causing that which could be reasonably avoided.[130] If the consequences of DU radioactive particles to non-combatants were more apparent and internationally recognized, the decision to use these weapons would be considered excessive and hence illegal.[131]
The laws of neutrality could also be violated by the fact that the effects of DU cannot be contained in all instances and it could spread through wind and water systems and thus be unable respect the territorial integrity of a neutral state.[132] DU users would however claim that the spill over effect to neutral states is unintentional and therefore not prohibited.[133] The provisions of the Hague conventions dealing with neutrality do not address unintentional violations of neutrality but neither do they specifically state that violations of neutrality must be intentional.[134]
Christopher Weeramanty, a judge on the ICJ for the nuclear weapons case said that if the consequences of an action are known beforehand, one cannot claim nor avoid responsibility for them.[135] In his dissenting opinion he stated that:
It is not to point that such results are not directly intended, but are ‘by-products’ or ‘collateral damage.’ The author of the act causing these consequences cannot in any coherent legal system avoid legal responsibility for causing them any more than a man careering in a motor vehicle at a hundred and fifty kilometers per hour through a crowded market street can avoid responsibility for the resulting deaths on the grounds that he did not intend to kill the particular persons who died.[136]
The ICJ, however, did not conclude that transborder damage from nuclear weapons would be sufficient in every circumstance to ban its use.[137] So even though DU weapons may be deemed illegal due to transborder damage in some cases, it is unclear if this would apply in every situation.[138] Therefore, it would be difficult to call for a general prohibition of DU weapons on this principle.[139]
It might appear that the prohibition against the use of poison or poisoned weapons in war would apply to DU due to the potential of radioactive poisoning which can be more devastating to human health that the other prohibited poisons.[140] Some theorists expanded on this interpretation when they stated that Iraq’s release of oil, and burning of oil to produce fumes fell under this definition as did the use of chemical defoliants on forests and agricultural lands by the U.S. in Vietnam and Laos.[141] The ICJ, however interpreted poisoned weapons to only include “weapons whose prime, or even exclusive, effect is to poison or asphyxiate.”[142] The prime purpose of DU is not to poison but to penetrate hard armor.[143]
Although the court had a restrictive interpretation of the use of poison and poisoned weapons, their interpretations were opposed in the dissenting opinions of judges Weeramanty and Koroma.[144] They reinforced the concept that the poisonous radiation effects of nuclear weapons in almost all cases would be more harmful than those poisons that are prohibited.[145] Justice Weeramanty noted that radiation poisoning is more insidious than poison gas as its effects “include the transmission to genetic disorders for generations.” [146] The Justice also noted that even though radiation is a by-product of nuclear weapons, its poisonous effects couldn’t be unintended as it is well known that radiation is a major consequence of the bomb.[147] It is possible that these interpretations by Kormoa and Weeramantry will eventually become the norm for poisoned weapons and apply to DU as the threats posed by it parallel the larger threats of gas and nuclear weapons.[148]
Finally, it could be argued that DU’s use does cause widespread, long-term and severe damage to the environment despite the dubiousness of the this principle as it applies to the U.S.[149] Although international humanitarian law has yet to limit the use of a weapon because of its environmental consequences, it provides de facto protection to the environment through setting standards for prohibiting certain weapons that harm it.[150] As discussed before, the effects of DU lasts more than several decades and spreads over wide areas.[151] While there is no conclusive definition as to the exact meaning of “long-term or widespread,” it is hard to deny that the radiological effects of DU would not transcend battlefield damage.[152] The World Court has itself stated that the effects of radiation for the environment can be catastrophic as it would effect agriculture, natural resources, and demography over a wide area.[153] The Court also stated that radiation had the potential to damage the future environment, food and marine ecosystem, and to cause genetic defects and illness in future generations.[154]
The ICJ, however, also determined that environmental damage must be considered with relation to military necessity and proportionality.[155] The court stated that when looking at these principles holistically, they could condemn every use of nuclear weapons on environmental protection outright.[156] It would be difficult to claim that the use of DU would have a greater environmental effect than that of nuclear weapons.[157] The only possible basis for counterargument would be that DU weapons are used widely, whereas nuclear weapons are not. It is estimated that U.S. armed forces used more than 14,000 rounds in Iraq during the first Gulf war and 31,000 rounds in Yugoslavia.[158] However, it would still be hard to measure how much of the environmental damage resulted from DU use as opposed to the environmental policies of the governments of the country under attack.[159]
IV. International Environmental Law Principles and Depleted Uranium
A. Introduction
While the legality of DU use according to the principles of international humanitarian law are dubious, a stronger case can be made for it violating the emerging principles of international environmental law such as the precautionary principle and intergenerational equity.[160] These principles apply to DU use as they lack a requirement of conclusive scientific certainty and expose the U.S. and NATO for failing to take any measures to prevent or remedy the harm caused to other nations or future generations by the use of this toxic weapon.[161] Unfortunately, the status of these principles as part of customary international law have not been established for them to be binding.[162]
B. The Precautionary Principle and Intergenerational Equity
The precautionary principle provides that when there is reason to believe that a particular practice would generate trans border environmental damage, the practicing party has to take preventive measures to prove its safety even if there is a lack of conclusive scientific evidence about its effects.[163] Such preventive measures could include planning, alternatives assessment, and anticipatory action to avoid environmental damage.[164] The principle emerged from the recognition that scientific certainty comes too late to design effective legal and policy responses for preventing environmental threats.[165] The principle shifts the burden of scientific proof necessary for triggering policy responses from those whose support prohibiting a harmful activity to those who want to continue the activity.[166]
The question of when the obligation arises for the offending state is answered in the Trail Smelter arbitration concerning Canadian transboundary pollution that caused damaged to the U.S. and the Crofu Channel case involving British Navy Ships damaged due to mines in Albania’s territorial sea.[167] The Trail Smelter cases suggests that the obligation arises on the state for transboundary damage if there is an actual and serious harm that is likely to recur as a result of their actions and the injury is established by clear and convincing evidence.[168] The Corfu Channel cases stated that the responsibility is triggered when there is a known risk to other states.[169]
The precautionary principle was inspired by its use in Swedish and German environmental law and policy and first employed internationally in the North Sea Conference in 1984.[170] It was later affirmed by the EC governments in the 1990 Bergen Ministerial Declaration on Sustainable Development and secured global endorsement in Principle 15 of the 1992 Rio Declaration on Environment and Development.[171]
The extent that this principle has been applied internationally to form an opinio juris of customary international law is unclear.[172] It has been accepted as a principle of international law by the EU, Canada, the Supreme Courts of India and Pakistan, and many other nations, and has been used as a policy in numerous legally binding treaties.[173] But the U.S. has denied that it is part of customary international law and the WTO appellate body in the Beef Hormones case found its legal status uncertain.[174] There also have been uncertainties pertaining to its meaning, application and implications which work against it being recognized as a concrete principle of customary international law.[175] Despite these uncertainties, its use by national and international courts, by international organizations, and in treaties shows that this principle is a legally important concept. [176]
The principle of Intergenerational equity states that it is the responsibility of each generation to use and develop its natural and cultural heritage in a manner that it can be passed on to future generations in no worse a condition than it was received.[177] Central to this idea is that subsequent generations should not be threatened by current practice that may disrupt the use or quality of resources, including that of the natural environment.[178] This rule is referred to in Principle 3 or the 1992 Rio Declaration and Article 3(1) of the 1992 Convention on Climate Change.[179]
Although these international declarations indicate the importance of this policy, it is difficult to translate this concept into a formal body of law or into rights for ‘indeterminate’ generations.[180] While the Philippines Supreme Court allowed the plaintiffs standing to sue on behalf of themselves and future generations in a case challenging the grant of timer licenses, the Bangladesh Supreme Court did not follow this precedent.[181] The theory has also been criticized for resting on some questionable assumptions pertaining to the nature of economic equity, despite being well defined.[182]
C. DU and the Principles of International Environmental Law
The use of DU would violate the precautionary principle. U.S. and NATO countries have failed to prove the safety of DU before using it in the battlefield, knowing that it would cause transboundry damage due to its radioactive nature and the spreading of uranium oxide over great distances.[183] They have not taken any preventive measures to avoid the radioactive effects of DU, have refused to cooperate with many environmental impact studies, and have refused to clean up contaminated sites.[184] They have falsely relied on politicized and inconclusive reports on the supposed ‘safety’ of DU and failed to even follow their own conclusions pertaining to further investigations or clean up.[185] In addition, the U.S and NATO have completely dismissed all reports which have warned of the dangers of DU’s use, despite warning their own military and humanitarian personal to stay away from areas that were contaminated and putting warning signs outside the sites themselves.[186] These factors can only lead to the conclusion that the U.S. acted more callously than the defendants in the Trail Smelter and Crofu Channel cases.[187]
But in order for this principle to apply effectively, some concrete transborder environmental damage has to be claimed by another nation state which they would be able to prove.[188] Sporadic claims or speculation would not be sufficient. While formal concerns have been raised by Bulgarian and Romanian officials about toxic chemical effects of bombed chemical facilities in Yugoslavia, no such effects have been claimed about DU yet.[189]
The use of DU would also violate the principle of intergenerational equity in light of the fact that radiation released by it would effect subsequent generations both in terms of genetic damage and offspring.[190] Also, uranium would remain radioactive over an extremely long period of time causing widespread environmental damage and endangering the resources of future generations.[191] The U.S. and NATO countries have refused to even consider these harms before deciding to use DU ammunitions and ignored studies documenting birth defects to offspring of their own military personal exposed to this toxic substance.[192]
The only problem with the precautionary principle and intergenerational equity is their dubious legal status as they are new emerging concepts in international environmental law.[193] Despite the fact that they may not be binding, they do provide an important framework to analyze the recklessness of parties who choose to use destructive weapons with catastrophic effects. These principles are already considered important legal concepts and it is likely that they will be more binding in the future.[194]
V. Conclusion
While the current situation surrounding DU use might not be sufficient to have the illegality affirmed by the UN or the ICJ, efforts should continue to strengthen such law until these weapons are universally banned like expanding bullets and poisonous gases.[195] This is because DU remains a very lethal substance and nations are unlikely to apply unilateral prescriptions against its use due to their own self-interest.[196] The latter can be seen in the bizarre and irresponsible actions of the U.S. which has done everything in its power to avoid drawing negative attention to DU and to avoid liability for its consequences.[197]
Public pressure should also continue to force the U.S. and NATO countries to clean up the contaminated sites that they are responsible for.[198] In addition, legal action should be brought in specific cases for negligence in order to get some redress from the negative health effects of DU.[199] These local judicial decisions can be utilized as a subsidiary means to determine the rules of international law according to article 38(1)(d) of the Statute of the ICJ.[200] To help better define the legality of DU, pressure should also mount to get more conclusive and objective studies about its effects on combatants and non-combatants and to stop parties like the U.S. from compromising studies put forth by UN and the WHO.[201] Such pressure has been successful in the past with the anti-nuclear weapons campaign leading to the World Court opinion against the use of nuclear weapons.[202]
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[1] See Dan Fahey, The Final Word on Depleted Uranium, 25 Fletcher F. World Aff. 189 (2001).
[2] See Section II.
[3] Alyn Ware, Depleted Uranium Weapons and International Law in Metal of Dishonor: How the Pentagon Radiates Soldiers and Civilians with DU weapons 201 (John Catalinotto and Sara Flounders eds., New York: International Action Center, 1999).
[4] See Section III.
[5] See Section IV.
[6] Christine Abdelkrim-Delanne, “Not such conventional weapons,” Le Monde Diplomatique, June 1999.
[7] Id.
[8] Robert James Parsons, “America’s big dirty secret,” Le Monde Diplomatique, March 2002.
[9] See supra note 6.
[10] Jacques Brillot, “The chemical effects of DU,” Le Monde Diplomatique, February 2001.
[11] Id.
[12] See supra note 6.
[13] Id.
[14] See supra note 8.
[15] See supra note 1 at 191.
[16] Id.
[17] Bukowski, G.D. Lopez, and F. McGehee, “Uranium Battlefields Home and Abroad,” Citizen Alert, March 1993, p. 43-54; Olivera Medecina, Protocol I and Operation Allied Force: Did NATO abide by Principles of Proportionality?, 23 Loy. L.A. Int’l & Comp. L. Rev. 329, 400 (2001).
[18] Id.
[19] “Guidelines for safe response to handling, storage and transportation accidents involving army tank munitions or armor which contain depleted uranium,” US Department of the Army, Technical Bulletin, TB 9-1300-278.
[20] M.E. Danesi, Kinetic Energy Penetrator Long Term Strategy Study (Picatinny Arsenal, NJ: U.S. Army Armament, Munitions, and Chemical Command: 1990), Appendix D: Vol 1, 4-5; Vol. 1, 2-2; Vol. 2, 3-4.
[21] Supra note 1 at 191.
[22] Id.
[23] Neil Mackay, “US forces use of Depleted Uranium weapons is illegal,” Sunday Herald, 30 March 2003.
[24] Supra note 1 at 196.
[25] Id. at 191.
[26] Id. at 196.
[27] Id.
[28] Id.
[29] Id.
[30] Id.
[31] Id.
[32] Id. at 197.
[33] Id.
[34] Id.
[35] Robert James Parsons, “America’s big dirty secret,” Le Monde Diplomatique, March 2002.
[36] Robert James Parsons, “Deafening silence on depleted uranium,” Le Monde Diplomatique, February 2001.
[37] Id.
[38] Supra note 1 at 189, 198.
[39] Supra note 36.
[40] See supra note 35.
[41] Id.
[42] Id.
[43] Id.
[44] European Commission, Directorate General, Environment (EURATOM), “Opinion of the Group of Experts Established According to Article 31 of the Euratom Treaty, Depleted Uranium,” (Luxembourg, March 6, 2001), 15.
[45] See supra note 1 at 198.
[46] Id.
[47] Jeremy T Burton, Depleted Morality: Yugoslavia v. Ten NATO members and Depleted Uranium, 19 Wis. Int’l L.J. 17, 31 (2000).
[48] Id.
[49] See Medecina supra note 17 at 402.
[50] Id.
[51] Id. at 200.
[52] Id.
[53] Id.
[54] See supra note 23; Philippa Winkler, UN sub-commission on human rights votes ban on DU, in Metal of Dishonor: How the Pentagon Radiates Soldiers and Civilians with DU weapons 191-93 (John Catalinotto and Sara Flounders eds., New York: International Action Center, 1999).
[55] See supra note 47 at 32.
[56] Nicholas G. Alexander, Air strikes and Environmental Damage: Can the United States Be Held Liable for Operation Allied Force? 11 Colo. J. Int’l. Envtl. L. & Pol’y 471, 475-81.
[57] Supra note 3 at 198-201.
[58] Id. at 196.
[59] Id. at 195.
[60] Id.
[61] Id. at 197.
[62] Supra note 56 at 475-76.
[63] Convention Respecting the Laws and Customs of War on Land, Oct 18, 1907, art. 3 and 22 {Hereinafter Hague IV} available at http://www.yale.edu/lawweb/avalon/lawofwar/hague04.htm (last visited May 5 2004.)
[64] See supra note 56 at 476.
[65] Hague IV, supra note 64, art. 23 available at http://www.yale.edu/lawweb/avalon/lawofwar/hague04.htm (last visited May 5, 2004)
[66] Michael N. Schmitt, Humanitarian Law and the Environment, 28 Denv. J. Int’l L. & Pol’y 265, 285 (2000).
[67] Id.
[68] Id.
[69] Richard A. Falk, Environmental Warfare and Ecocide, in 4 THE VIETNAM WAR AND INTERNATIONAL LAW 287, 289 (Richard A. Falk ed., 1976).
[70] Id.
[71] Id. The humanity principle can be violated with respect to the environment in many ways, such as poisoning water supplies, dispersing chemical or biological agencies to infect a human population or contaminate its crops or livestock, or destroying a population’s food source directly, or by a blockade.
[72] Id.
[73] Convention Respecting the Rights and Duties of Neutral Powers in Case of War on Land, October 18, 1907, Art. 1, {hereinafter Hague V Convention} available at http://www.yale.edu/lawweb/avalon/lawofwar/hague04.htm; Convention respecting the Rights and Duties of Neutral Powers in Naval Wars, October 18 1907, Art. 1 {hereinafter Hague XIII} available at http://www.yale.edu/lawweb/avalon/lawofwar/hague13.htm (last visited 5/5/03.)
[74] Advisory Opinion on the Legality of the Threat or use of Nuclear Weapons, 1996 I.C.J. 226, paragraph 89.
[75] Francis Boyle, The Criminality of Nuclear Deterrence, 190 (Atlanta, GA: Clarity Press, 2002).
[76] Aaron Schwabach, Environmental Damage Resulting from the NATO Military Action Against Yugoslavia, 25 Colum. J. Envtl. L. 117, 126 (2000).
[77] John Alan Cohen, Modes of Warfare and Evolving Standards of Environmental Protection Under the International Law of War, 15 Fla. J. Int’l L. 481, 501 (2003).
[78] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of International Armed Conflicts, 8 June , 1977, Art. 35 and 55 {hereinafter Protocol 1} available at http://www.unhchr.ch/html/menu3/b/93.htm (last visited May 5, 2004.)
[79] Supra note 66 at 276-77.
[80] Supra note 77 at 502.
[81] Id. at 502-03.
[82] Id. at 504-05.
[83] Id. at 505.
[84] Id.
[85] Protocol I supra note 78, Art. 51.
[86] See supra note 66 at 311-12. In addition to distinguishing between civilian and military objectives.
[87] Id. at 311.
[88] Supra note 76 at 126.
[89] Supra note 75 at 179.
[90] Michael Schmitt, Green War: An Assessment of the Environmental Law of International Armed Conflict, 22 YJIL 1, 69 (1997).
[91] Id.; See supra note 66 at 278.
[92] See supra note 3 at 197-98.
[93] Id. at 198.
[94] See supra note 75 at 103.
[95] See supra note 3 at 198.
[96] Id.
[97] See supra notes 15-23 and accompanying text.
[98] See supra note 17 at 400.
[99] See supra note 47 at 35.
[100] Environment in Iraq: UNEP Progress report, Geneva, Nairobi, Kenya: United Nations Environmental Programme, pg. 21 (2003).
[101] See supra note 66 at 296.
[102] See supra notes 26, 47-50.
[103] See supra note 17 at 403.
[104] See supra notes 47-50 and note 1 at 199.
[105] See supra note 47 at 39.
[106] Id.
[107] Id.
[108] Id.
[109] See supra note 3 at 198.
[110] Id.
[111] See supra note 6.
[112] See Medecina supra note 17 at 401.
[113] See supra note 3 at 198.
[114] See Medecina supra note 17 at 404.
[115] See supra note 3 at 198.
[116] See supra note 12 and 13 and accompanying text.
[117] See Medecina supra note 17 at 400.
[118] See supra note 47 at 31; Scott Peterson, “DU’s global spread spurs debate over effect on humans,” Christian Science Monitor, April 29, 1999.
[119] Dr. Siegwart-Horst Guenther, How DU Shell Residues Poison Iraq, Kuwait and Saudi Arabia, in Metal of Dishonor: How the Pentagon Radiates Soldiers and Civilians with DU weapons 168 (John Catalinotto and Sara Flounders eds., New York: International Action Center, 1999).
[120] Id.
[121] Eric Hoskins, Depleted Uranium Shells make the Desert Glow in Metal of Dishonor: How the Pentagon Radiates Soldiers and Civilians with DU weapons 165 (John Catalinotto and Sara Flounders eds., New York: International Action Center, 1999).
[122] See supra note 3 at 199.
[123] Robert Fisk, “The Truth About Depleted Uranium,” The Independent, 8 January 2001.
[124] Id.
[125] See Medecina supra note 17 at 402.
[126] Id. at 403.
[127] See supra note 3 at 199.
[128] Id.
[129] Id.
[130] See supra note 67 at 311.
[131] See Medecina supra note 17 at 402.
[132] Supra note 3 at 199.
[133] Id.
[134] Id.
[135] Advisory Opinion on the Legality of the Threat or use of Nuclear Weapons, 1996 I.C.J. 226, Dissenting Opinion of Judge Weeramanty.
[136] Id.
[137] Supra note 3 at 200.
[138] Id.
[139] Id.
[140] Id.
[141] See supra note 76 at 124.
[142]Advisory Opinion on the Legality of the Threat or use of Nuclear Weapons, 1996 I.C.J. 226, paragraph 55.
[143] See supra note 3 at 200.
[144] Supra note 135; Advisory Opinion on the Legality of the Threat or use of Nuclear Weapons, 1996 I.C.J. 226, Dissenting opinion of Judge Koroma.
[145] Supra note 135.
[146] Id.
[147] Id.
[148].See supra note 47 at 37.
[149] See supra note 3 at 200.
[150] See supra note 67 at 285.
[151] See notes 113-123 and accompanying text.
[152] See supra note 78 at 502.
[153] Advisory Opinion paragraph 35.
[154] Id.
[155] See supra note 75 at paragraph 32.
[156] Id. at paragraph 33.
[157] See supra note 3 at 200.
[158] See supra note 1 at 194 and note 17 at 402.
[159] Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia (2000).
[160] See section III C.
[161] Id.
[162] See supra notes 173-76, 180-82 and accompanying text.
[163] Rachel Morello-Frosch, Manuel Pastor Jr., and James Sadd, Epidemiology and Science: Integrating Environmental Justice and the Precautionary Principle in Research and Policy Making, 584 Annals 47, 50 (2002).
[164] Id.
[165] Patricia Birnie and Alan Boyle, International Law & The Environment 117 (New York: Oxford University Press, 2002).
[166] Id.
[167] Justin Mellor, The Negative effects of Chernobyl on International Environmental Law, 17 Wis. Int’l L.J. 65, 75 (1999).
[168] Id.; Elizabeth A. Ellis, Bordering on Disaster: A new attempt to control the Trasnsboundary effects of Maquiladora Pollution, 30 Val. U.L. Rev, 621, 635-36 (1996); Martin G. Gelfand, Practical Application of International Environmental Law: Does it work at all?. 29 Case W. Res. J. Int’l L, 73, 77-78 (1997).
[169] Id. Albania was found negligent of this responsibility and had to pay Britain reparations for the damages to its ships.
[170] See supra note 165 at 118.
[171] Id.
[172] Id.
[173] Id.
[174] Id. at 118-19.
[175] Id.
[176] Id. at 120.
[177] Id. at 89.
[178] Id.
[179] Id. at 90.
[180] Id.
[181] Id. at 91.
[182] Id.
[183] See notes 113-21.
[184] See supra notes 45-47 and accompanying text; “NATO hindered Kosovo inquiry,” Financial Times, October 15, 1999.
[185] See supra notes 28-47 and accompanying text.
[186] See supra note 1 at 194 and notes 47-50 with accompanying text; Robert Fisk, “NATO Obstructs and Inquiry Into Depleted Uranium,” The Independent, October 16, 1999.
[187] See supra notes 167-69 and accompanying text.
[188] See supra note 168 and accompanying text.
[189] Ida L. Bostian, The Environmental Consequences of the Kosovo Conflict and the NATO Bombing of Serbia, 1999 Colo. J. Int’l Envtl L & Pol’y 230, 234-35 (2000).
[190] See supra note 3 at 201 and notes 124-27.
[191] Id.; See supra notes 153-54 and accompanying text.
[192] See supra note 1 at 193-94.
[193] See supra notes 173-176, 180-82 and accompanying text.
[194] See supra note 165 at 180.
[195] See supra note 3 at 197, 201.
[196] Id. at 202.
[197] See supra note 1 at 194.
[198] See supra note 1 at 199-200.
[199] See supra note 3 at 201;
[200] Statue of the International Court of Justice, art. 38(1)(d), reprinted in Basic Documents of the United Nations 228 (L. Sohn Ed. 1968).
[201] See supra note 47 at 39-40.
[202] See supra note 3 at 201.
