Nuclear Age Peace Foundation

Tag: legality

  • Pentagon Brass Suppresses Truth About Toxic Weapons

    Poisonous Uranium Munitions Threaten World

    The use of weapons containing uranium violates existing laws and customs of war and “constitutes a war crime or crime against humanity,” according to a leading U.S. expert on humanitarian law.

    Karen Parker, a San Francisco-based expert in armed conflict law, told American Free Press that the use of radioactive uranium weapons violates the Hague and Geneva Conventions as well as the Conventional Weapons Convention of 1980.

    Although no treaty specifically bans DU weapons, they are illegal “de facto and de jure,” Parker said. However, a class action lawsuit by victims of DU weapons will probably be required for a court to ban their use, she said.

    ‘ILLEGAL FOR ALL COUNTRIES’

    “A weapon made illegal only because there is a specific treaty banning it is only illegal for countries that ratify such a treaty,” Parker wrote in a paper, “The Illegality of DU Weaponry,” presented at the International Uranium Weapons Conference in Hamburg, Germany last October. However, “a weapon that is illegal by operation of existing law is illegal for all countries.”

    Parker, a delegate to the UN Commission on Human Rights since 1982, provides legal advice to the UN on DU weapons and other matters of humanitarian law.

    “DU weaponry cannot possibly be legal in light of existing law,” Parker said.

    “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,” Parker wrote.

    According to humanitarian law, the illegality of DU weapons is based on four criteria:

    The first is the “territorial” test. Weapons may only be used in the legal field of battle. Weapons may not have an adverse effect off the legal field of battle.

    The second is the “temporal” test, meaning that weapons may only be used for the duration of an armed conflict. A weapon that continues to act after the war violates this criterion.

    The territorial and temporal criteria are meant to prevent weapons from being “indiscriminate” in their effect.

    The third rule is that a weapon cannot be unduly inhumane. The Hague Convention of 1907 prohibits “poison or poisoned weapons.” Because DU weapons are radioactive and chemically toxic, as the military knows, they fit the definition of poisonous weapons banned under the Hague Convention.

    WHAT THE MILITARY KNOWS

    The Defense Department is well aware of the toxic effects of DU. In an official presentation by U.S. Army Reserve Col. J. Edgar Wakayama at Fort Belvoir, Va. on Aug. 20, 2002, the dangers of exposure to DU were clearly spelled out:

    “Inhalation exposure has a major effect on the lungs and thoracic lymph nodes,” Wakayama read from a slide. “The alpha particle taken inside the body in large doses is hazardous, producing cell damage and cancer. Lung cancer is well documented,” he noted.

    “Urine samples containing uranium are mutagenic [capable of producing mutation]” and “the cultured human stem bone cell line with DU also transformed the cells to become carcinogenic,” Wakayama read.

    DU deposited in the bone causes DNA damage because of the effects of the alpha particles, Wakayama stressed. One gram of DU emits 12,000 high-energy alpha particles per second.

    The fourth rule for weapons, the “environmental” test, says that weapons cannot have an unduly negative effect on the natural environment.

    Wakayama advised, “Heavily contaminated soil should be removed if the area is to be populated with civilians.”

    Wakayama described the dangers to children playing in contaminated soil and the leaching of DU into local water and food supplies.

    DU FAILS ALL LEGAL CRITERIA

    DU weaponry fails all four tests, Parker says. Because it cannot be contained to the battlefield, it fails the territorial test. Airborne DU particles are carried far from the battlefield affecting distant civilian populations and neighboring countries.

    Because the uranium dispersed on the ground and in the air cannot be “turned off” when the war is over, DU fails the temporal test.

    “The airborne particles have a half-life of billions of years and have the potential to keep killing . . . long after the war is over,” Parker wrote.

    “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,” she concluded.

    DU weapons fail the humaneness test because of how they kill, Parker says, “by cancer, kidney disease etc, long after the hostilities are over.

    “DU is inhumane because it can cause birth defects such as cranial facial anomalies, missing limbs, grossly deformed and non-viable infants and the like, thus affecting children . . . born after the war is over,” Parker said.

    “The teratogenic [interfering with normal embryonic development] 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,” she wrote. “Willfully causing great suffering or serious injury to body or health” of civilians constitutes a grave breach of the fourth Geneva Convention, and this is “exactly what DU weapons do.”

    Finally, because DU weapons cannot be used without unduly damaging the natural environment, they fail the fourth rule for weapons, the environmental test.

    “No available technology can significantly change the chemical and radiological toxicity of DU,” the Army Environmental Policy Institute reported to Congress in 1994. “These are intrinsic properties of uranium.”

    “Regarding environmental damages, users of these weapons are obligated to carry out an effective cleanup,” Parker wrote. “The cost of legal claims and environmental cleanup for the gulf wars alone could be staggering.”

    “Use of DU weaponry necessarily violates the ‘grave breach’ provision of the Geneva Conventions, and hence its use constitutes a war crime or crime against humanity,” Parker concluded.

    Questions regarding the legality of DU weapons were sent in writing to the Pentagon’s appointed spokesman on DU matters, James Turner.

    Turner told AFP that he was “not qualified” to answer such questions.

    By press time the Pentagon had not responded to repeated requests for information.

  • Support for Wall Mocks International Law

    What is most remarkable about the International Court of Justice decision on Israel’s ”security barrier” in the West Bank is the strength of the consensus behind it. By a vote of 14-1, the 15 distinguished jurists who make up the highest judicial body on the planet found that the barrier is illegal under international law and that Israel must dismantle it, as well as compensate Palestinians for damage to their property resulting from the barrier’s construction.

    The International Court of Justice has very rarely reached this degree of unanimity in big cases. The July 9 decision was even supported by the generally conservative British judge Rosalyn Higgins, whose intellectual force is widely admired in the United States.

    One might expect the government of Ariel Sharon to wave off this notable consensus as an ”immoral and dangerous opinion.” But one might expect the United States — even as it backed its ally Israel — at least to take account of the court’s reasoning in its criticisms. Instead, both the Bush administration and leading Democrats, including Senators John Kerry and Hillary Clinton, mindlessly rejected the decision.

    Even the American justice in The Hague, Thomas Buergenthal, was careful in his lone dissent. He argued that the court did not fully explore Israel’s contention that the wall-and-fence complex is necessary for its security before arriving at its sweeping legal conclusions. But Judge Buergenthal also indicated that Israel was bound to adhere to international humanitarian law, that the Palestinians were entitled to exercise their right of self-determination and, insofar as the wall was built to protect Israeli settlements in the West Bank and East Jerusalem, that he had “serious doubt that the wall would. . .satisfy the proportionality requirement to qualify as legitimate self-defense.”

    The nuance in Buergenthal’s narrow dissent contrasts sharply with, for instance, Kerry’s categorical statement that Israel’s barrier “is not a matter for the ICJ.”

    To the contrary, Israel’s construction of the wall in the West Bank has flagrantly violated clear standards in international law. The clarity of the violations accounts for the willingness of the U.N. General Assembly to request an advisory opinion on the wall from the court, a right it has never previously exercised in relation to the Israeli-Palestinian conflict. The clarity also helps to explain Israel’s refusal to participate in the ICJ proceedings — not even to present its claim that the barrier under construction has already reduced the incidence of suicide bombing by as much as 90 percent.

    Significantly, the court confirms that Israel is entitled to build a wall to defend itself from threats emanating from the Palestinian territories if it builds the barrier on its own territory. The justices based their objection to the wall on its location within occupied Palestinian territories, as well as the consequent suffering visited upon affected Palestinians.

    If Israel had erected the wall on its side of the boundary of Israel prior to the 1967 war, then it would not have encroached on Palestinian legal rights. The court’s logic assumes the unconditional applicability of international humanitarian law, including the Fourth Geneva Convention, to Israel’s administration of the West Bank and Gaza (a principle affirmed by Judge Buergenthal). That body of law obliges Israel to respect the property rights of Palestinians without qualification, and to avoid altering the character of the territory, including by population transfer.

    The decision creates a clear mandate. The ICJ decision, by a vote of 13-2, imposes upon all states an obligation not to recognize ”the illegal situation” created by the construction of the wall. This is supplemented by a 14-1 vote urging the General Assembly and Security Council to “consider what further action is required to bring an end to the illegal situation.”

    Such a plain-spoken ruling from the characteristically cautious International Court of Justice will test the respect accorded international law, including U.S. willingness to support international law despite a ruling against its ally. The invasion of Iraq and the continuing scandals have already tarnished the reputation of the United States as a law-abiding member of the international community. When U.S. officials dismiss the nearly unanimous ICJ decision without even bothering to engage its arguments, America’s reputation suffers further. In fact, elsewhere in the world, U.S. repudiation of this decision can only entrench existing views of America as an international outlaw.

    Richard Falk is a Distinguished Visiting Professor at the University of California at Santa Barbara, Albert G. Milbank Professor Emeritus of International Law and Practice at Princeton University, and is chair of the Nuclear Age Peace Foundation.