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Radiation Warfare: A Review of the Legality of Depleted Uranium Weaponry

Published online by Cambridge University Press:  09 March 2016

Karen Hulme
Karen Hulme*
Affiliation:
Department of Law at the University of Essex, United Kingdom
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Summary

Criticized by many as the new “weapon of mass destruction,” lauded by some as the “weapon of choice in combat,” the use of depleted uranium ammunition in warfare raises many legal questions. Designed as a point weapon to penetrate armoured targets, scientific studies prove that depleted uranium has both chemically and radioactively toxic characteristics. Clearly, every weapon of war will have some affect on human health and the environment, but the laws of armed conflict have evolved to place limits on the level of harm viewed as permissible and legal. Does this “weapon of choice,” therefore, breach the international laws of armed conflict?

Although the subject of media frenzy in the immediate aftermath of the 1999 Kosovo conflict, the use of depleted uranium ammunition in Iraq 2003 raised little media attention. How could the use of such a controversial weapon in 1991 go largely unnoticed just four years later? Does this lack of global condemnation necessarily lead to the conclusion that the “dictates of the public conscience” have evolved in regard to the use of this previously controversial weapon of war? This article seeks to analyze the legality of the use of depleted uranium ammunition — the main question being whether the existing laws of armed conflict are already sufficient to address any human and environmental concerns.

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Articles
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Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 43 , 2006 , pp. 197 - 296
Copyright
Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 2006

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References

1 Security Council Resolution 678, 29 November 1990, (1990) 29 I.L.M. 1565. Depleted uranium metal is also used in the armour of tanks, such as the American Mı Aı Abrams main battle tank, which is protected by steel encased depleted uranium armour and is effective against chemical, biological, and nuclear warfare.

2 Some Facts Concerning the Use of Radioactive Weapons by the Coalition Forces and Their Effects on the Environment and the Population in Iraq, Note Verbale dated 21 May 1996 from the Permanent Mission of Iraq to the United Nations Office at Geneva addressed to the Centre for Human Rights, Doc. E/CN.4/SUD.2/1996/32 (7 June 1996); Post-War Environment in Iraq, Note Verbale dated 27 July 1998 from the Permanent Mission of Iraq to the United Nations Office at Geneva addressed to the Secretariat of the Sub-Commission, Doc. E/CN.4/Sub.2/1998/ 32 (3 August 1998) [Post-WarEnvironment in Iraq].

3 Ibid.

4 Brown, P., “Uranium Risk in War Zone,” The Guardian, 13 April 1999 Google Scholar; Brown, P., “UN to Tackle Deadly Legacy of War,” The Guardian, 17 May 1999 Google Scholar; Gorbachev, M., “Poison in the Air,” The Guardian, 18 June 1999 Google Scholar; and Norton-Taylor, R., “Doctor Blames West for Deformities,” The Guardian, 30 July 1999.Google Scholar

5 Norton-Taylor, R., “Italy Blames Army Deaths on US Shells,” The Guardian, January 2001, at 12 Google Scholar; Evans, M., “France to Test Soldiers for Uranium Link,” The Times, 5 January 2001 Google Scholar; and Owen, R., “Italy Links Leukaemia Deaths to Nato Shells,” The Times, 4 January 2001, at 17.Google Scholar

6 “Royal Navy Phases out DU Ammo,” 13 January 2001, BBC News Online, <http://news.bbc.co.uk/1/hi/uk/1115771.stm> (20 July 2001).

7 See Smith, M., “Army Buys Safer Tank Ammunition,” Daily Telegraph, 10 January 2002, at 12 Google Scholar. According to the Telegraph report, the “Ministry of Defence denied that … the decision was a tacit admission that DU [depleted uranium] might be harmful” and quoted a spokesman who said: “It is not going to replace the DU rounds. We’re not going wholesale into tungsten at the expense of DU. It’s an option. It’s an alternative to DU.”

8 This is part of the eponymous Martens Clause included in the preamble of the 1907 Regulations Respecting the Laws and Customs of War on Land, annexed to the 1907 Convention (IV) Respecting the Laws and Customs of War on Land, 18 October 1907, (1907) U.K.T.S. 9, Cd.5030 (entered into force 26 January 1910) [1907 Hague Convention IV].

9 1925 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, 17 June 1925, (1930) U.K.T.S. 24 (entered into force 8 February’ 1928) [Geneva Gas Protocol].

10 1949 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949, (1950) 75 U.N.T.S. 31–83 (entered into force 21 October 1950) [Geneva Convention I]; 1949 Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of August 12, 1949, (1950) 75 U.N.T.S. 8–-133 (entered into force 2 1 October 1950) [Geneva Convention II]; 1949 Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949, (1950) 75 U.N.T.S. 135–285 (entered into force 21 October 1950) [Geneva Convention III]; and 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949, (1950) 75 U.N.T.S. 287–417 (entered into force 21 October 1950) [Geneva Convention IV].

11 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, (1977) 16 I.L.M. 1391–441 (entered into force 7 December 1978) [Geneva Protocol I]; and Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, (1977) 16 I.L.M. 1442–9 (entered into force 7 December 1978) [Geneva Protocol II].

12 1907 Hague Convention IV, supra note 8.

13 In drafting the Geneva Protocols, the International Committee of the Red Cross (ICRC) specifically omitted applicability of the instruments to nuclear weapons, which is also reflected in a number of statements made upon ratification. See the statements of the United Kingdom, Canada, France, Italy, and the United States (upon signature).

14 In 1995, the ICRC commenced a review of the provisions and principles of the two Geneva Protocols in order to establish which of these principles have evolved into customary international law. The study was completed and published in 2005. See Henkaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Humanitarian Law, volume 1: Rules and volume II: Practice (Parts 1 and 2) (Cambridge: Cambridge University Press, 2005).CrossRefGoogle Scholar

15 Note Geneva Protocol I, supra note 11, Articles 35(3) and 55.

16 1980 United Nations Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, 10 April 1981, (1980) 19 I.L.M. 1523–36 (entered into force 2 December 1983) [Conventional Weapons Convention]. Three protocols were adopted at the same time as, and annexed to, the convention, see Protocol on Non-Detectable Fragments, 10 April 1981, (1980) 19 I.L.M. 1529 (entered into force 2 December 1983) [Protocol I], Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, 10 April 1981, (1980) 19 I.L.M. 1529 (entered into force 2 December 1983) [Protocol II] and Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons, îoApril 1981, (1980) 19 I.L.M. 1534 (entered into force 2 December 1983) [Protocol III]. Others were added later, including the Protocol on Blinding Laser Weapons, 13 October 1995 (1996) 35 I.L.M. 1218 (entered into force 30 July 1998) [Protocol IV]; 1996 Amended Protocol II on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, 3 May 1996, (1996) 35 I.L.M. 1206 (entered into force 3 December 1998) [Amended Protocol II on Mines]; and Protocol on Explosive Remnants of War, 28 November 2003, text available at <http://untreaty.un.org> (21 January 2003) [Protocol V on Explosive Remnants of War].

17 Conventional Weapons Convention, supra note 16, Article 1. More specifically, the provision mirrors the same scope as that of the Geneva Conventions at Common Article 2, which includes “all cases of partial or total occupation of the territory of a High Contracting Party.” See the 1949 Geneva Conventions, supra note 10.

18 Geneva Protocol I, supra note 11.

19 In full. Article 1 (4) states: “The situations referred to in the preceding paragraph include armed conflict in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right to self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.”

20 Details of these additional protocols are given in note 16.

21 In a landmark judgment, the tribunal recognized that weapons prohibited, at customary law, as inhumane in international armed conflict must also be prohibited in situations of internal conflict. According to the tribunal, any other conclusion would be “preposterous.” As a consequence, the prohibition on certain “inhumane” weapons is now absolute. Prosecutor v. Dusko Tadic (1996), Case no. IT-94-1 (International Criminal Tribunal for the Former Yugoslavia), (1996) 35 I.L.M. 32 at para. 119, available at <http://www.un.org/icty/judgement.htm> (3 September 2000).

22 1980 Conventional Weapons Convention, supra note 16, Amendment Article 1 (21 December 2001), available at <http://www.icrc.org> (1 July 2002). The amendment was brought into force on 18 May 2004 following the deposit of the twentieth instrument of ratification. As of December 2005, the 2001 amendment had forty-four ratifications, of the one hundred state parties to the 1980 convention.

23 The 1907 Hague Convention IV, supra note 8; the 1949 Geneva Conventions, supra note 10; and the 1977 Geneva Protocols, supra note 11.

24 “Depleted Uranium,” Global Security, available at <http://www.globalsecurity.org/military/systems/munitions/du.htm> (13 April 2004).

25 Ibid.

26 The US system allows for the sale of depleted uranium anti-tank ammunition to North Atlantic Treaty Organization (NATO) members and to major non-NATO allies, designated as Australia, Egypt, Israel, Japan, South Korea, Argentina, Jordan, Bahrain, Taiwan, New Zealand, Kuwait, Morocco, Pakistan, the Philippines, and Thailand and “any country the President determines that such a sale is in the U.S. national security to do so.” See paras. 2378a and 2378b of Chapter 32, Subchapter III, Part I of the 1961 US Foreign Assistance Act, <http://www.law.cornell.edu/uscode/search/display.html?terms=2378a&;url=/uscode/html/uscode22/usc_sec_22_oooo2378—aooo.html> (11 August 2006) as amended.

27 “Depleted Uranium Information for Clinicians,” Department of Defense Deployment Health Clinical Center, available at <http://www.pdhealth.mil/downloads/Clinicians_Guide_080604.pdf> (9 July 2005).

28 Trace elements of transuranics plutonium-239/240 and uranium-236 were detected in the United Nations Environment Programme’s Kosovo field study. See Depleted Uranium in Kosovo: Post Conflict Environmental Assessment (Switzerland: UNEP, 2001) at 16.

29 Durakovic, A., “Undiagnosed Illness and Radioactive Warfare” (2003) 44(5) Croatian Medical Journal 520 at 522.Google Scholar

30 It is actually 160 per cent more dense than lead, ibid. at 524.

31 There are harder substances available but these have problems that are not found with depleted uranium, either they are not found in sufficient quantities or are difficult to work with. “The Two-Headed Serpent: Depleted Uranium,” Military, com, available at <http://www.military.eom/soldiertech/0,14632,Soldiertech_DU,,00.html> (19 August 2005).

32 Ibid.

33 “APFSDS Ammunition-Armoured Piercing Fin-Stabilised Discarding Sabot,” Army-Technology.com, available at <http://www.army-technology.com/contractors/ammunition/apfsds.htm> (14 July 2005) [“APFSDS Army-Technology”]

34 “Depleted Uranium FAQs,” Jane’s Defense Weekly, 8 January 2001, available at <http://www.janes.com/defence/news/jdw/jdw010108_1_n.shtml> (20 June 2001).

35 “DU Ammunition Types Taken into Service (Non-Exhaustive),” Jane’s Defense Weekly, 11 January 2001, available at <http://www.janes.com/defence/news/jdw/jdw010111_2_n.shtm> (21 September 2001).

36 CHARM is an acronym for “Challenger armament,” as designed and used by the British Challenger tanks.

37 “RO Defence 120 mm Tank Gun Ammunition,” Jane’s Defense Weekly, 8 January 2001, available at <http://www.janes.com/defence/news/jdw/jdw010108_ 4_n.shtml> (17 March 2002).

38 “120mm Tank Gun KE Ammunition,” (2004) 5 Defense Update, available at <http://www.defense-update.com/products/digits/12oke.htm#M829A3> (2 May 2005).

39 Zajic, V. S., “Review of Radioactivity, Military Use, and Health Effects of Depleted Uranium,” July 1999, available at <http://vzajic.tripod.com/3rdchapter.html> (12 May 2005).Google Scholar

40 The original weight was given in tonnes. See Ministry of Defence, What’s New, available at <http://www.mod.uk/issues/depleted_uranium/index.htm> (20 September 2001).

41 van der Keur, H., “Where and How Much Depleted Uranium Has Been Fired?” available at <http://www.laka.org/teksten/Vu/where-how-much-01/main.html> (8 May 2005).Google Scholar

42 “Statement by Dr. Kilpatrick,” conference paper, 6 March 2004, available at <http://www.wise-uranium.Org/dissgw.html#MITKILP> (3 September 2005). The amount was listed as twenty-four short tons.

43 “Global Security information on the Mgig Cartridge 25mm, Armor Piercing, Fin Stabilized, Discarding Sabot, with Tracer (APFSDS-T),” available at <http://www.globalsecurity.org/military/systems/munitions/m919.htm> (1 June 2006).

44 “Global Security Information on the PGU-20-25mm Ammunition,” available at <http://www.globalsecurity.org/military/systems/munitions/pgu-20.htm> (3 July 2005).

45 Ibid.

46 “30 mm Cannon Ammunition,” Global Security, available at <http://www.globalsecurity.org/military/systems/munitions/30mm.htm> (3 July 2005).

47 “Depleted Uranium,” supra note 24.

48 “GAU-8 Avenger,” FAS Military Analysis Network, available at <http://www.fas.org/man/dod-101/sys/ac/equip/gau-8.htm> (7 July 2005).

49 “Depleted Uranium,” supra note 24.

50 See Report of the World Health Organisation Depleted Uranium Mission to Kosovo (Geneva: World Health Organization (WHO), 2001) [WHO Mission to Kosovo].

51 “Statement by Dr. Kilpatrick,” supra note 42.

52 “PGU-20-25mm Ammunition,” supra note 44.

53 For the UK decision to replace the depleted uranium rounds, see Ministry of Defence, supra note 40.

54 See Depleted Uranium in Bosnia and Herzegovina: Post-Conflict Environmental Assessment (Switzerland: UNEP, May 2003), at Appendix N on the Military Use of Depleted Uranium.

55 “Opinion of the Group of Experts Established According to Article 31 of the Euratom Treaty: Depleted Uranium,” 6 March 2001, European Commission, Directorate-General, Environment, Directorate C — Nuclear Protection and Civil Safety, Doc. ENV.C4, Radiation Protection, available at <http://europa.eu.int/comm/environment/radprot/opinion.pdf> (8 March 2001) [“Opinion of the Group of Experts”].

56 This figure was also suggested by UNEP following its field studies in Kosovo 2001, see Depleted Uranium in Kosovo, supra note 28 at 16.

57 “Depleted Uranium Munitions,” U.S. House of Representatives: Committee on Armed Services, Letter to Mr. Leonard A. Dietz, 13 May 1991, at 5, reprinted in Lopez, D. A., “Friendly Fire: The Link between Depleted Uranium Munitions and Human Health Risks,” March 1995, available at <http://www.gulfwarvets.com/du8.html> (3 August 2004) [“Depleted Uranium Munitions”].Google Scholar

58 Depleted Uranium in Bosnia, supra note 54 at 168–9.

59 As the name suggests, UNEP is an organization of the United Nations and works to encourage care for the environment. It achieves this by a number of methods, including scientific assessments and advice on conservation strategies.

60 Depleted Uranium in Kosovo, supra note 28.

61 Depleted Uranium in Serbia and Montengro: Post Conflict Environmental Assessment in the. Federal Republic of Yugoslavia (Switzerland: UNEP, 2002).

62 Depleted Uranium in Bosnia, supra note 54.

63 Depleted Uranium in Kosovo, supra note 28 at 10.

64 Radiological Conditions in Areas of Kuwait loith Residues of Depleted Uranium, Executive Summary (Vienna: International Atomic Energy Agency (IAEA), 2003).

65 For a comprehensive account of health and environmental studies on depleted uranium, see Bishop, D., ed., “Compendium of Uranium and Depleted Uranium Research 1942–2004,” available at <http://www.motherearth.org/du/compendium.pdf> (2 August 2005)Google Scholar. It is important to note that the study was commissioned by the International Coalition to Ban Uranium Weapons and the International Depleted Uranium Study Team, which also has as its objective the banning of depleted uranium weaponry. The compendium is nonetheless extensive in the resources it contains.

66 WHO Mission to Kosovo, supra note 50.

67 “The Health Hazards of Depleted Uranium Munitions,” Royal Society of Biology, May 2001, available at <http://www.royalsoc.ac.uk/document.asp?tip=o&id=1431> (15 July 2001) at 11.

68 “Testing for the Presence of Depleted Uranium in UK Veterans of the Gulf Conflict: The Current Position,” United Kingdom Ministry of Defence, March 1999, available at <http://www.gulfwar.mod.uk> (7 July 2001). Fetter, S. and Von Hippel, F., “After the Dust Settles” (1999) 55(6) Bulletin of Atomic Scientists 42, available at <http://www.thebulletin.org/issues/1999/ndgg/nd99vonhippel.html> (7 February 2001)CrossRefGoogle Scholar. See also “Anti-Armour Ammunition with Depleted Uranium Penetrators,” Memorandum with the Ministry of Defence, March 1979, at para. 3, available at <http://www.mod.uk/linked_files/anti-armour_ammunition.pdf> (20 January 2001) [“Anti-Armour Ammunition”].

69 Radiological Conditions in Areas of Kuwait, supra note 64.

70 See Norton-Taylor, R., “MP’s Press Hoon on Uranium Risk,” The Guardian, 15 January 2001, at 6.Google Scholar

71 U.S. Nuclear Regulatory Commission, Office of Nuclear Material Safety and Safeguards, Division of Waste Management and Environmental Protection, Environmental Impact Statement for the Proposed National Enrichment Facility in Lea County, New Mexico: Draft Report for Comment, Doc. NUREG-1790 (September 2004), available at <http://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr1790/> (2 October 2005) at 2–21.

72 See Article 2(h) of the 1997 IAEA Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management, 29 September 1997, (1997) 36 I.L.M. 6 at 1436 (entered into force 18 June 2001) [IAEA Joint Convention]. Both the United Kingdom and United States are state parties to this treaty. However, during the negotiation of the 1997 convention, states specifically kept off the agenda the issue of the safety of radioactive waste used for “military purposes.” Consequently, Article 3(3) stipulates that “radioactive waste does not include waste within the military or defence programmes.” Depleted uranium is also included within the IAEA statutory definition of “source materials,” which is a material suitable for transformation into a special nuclear material, at Article XX, 1957 Statute of International Atomic Energy Agency, available at <http://www.iaea.or.at/About/statute_text.html> (10 October 2005).

73 Article 1 (3) of the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 22 March 1989, (1989) 28 I.L.M. 657 (entered into force 24 May 1992) [Basel Convention].

74 1972 International Convention on the Prevention of Marine Pollution by the Dumping of Wastes and Other Matter, 29 December 1972, (1972) 1046 U.N.T.S. 120 (entered into force 30 August 1975) [London Dumping Convention]; and Resolution LDC 51(16), List of London Convention Resolutions, Office for the London Convention, International Maritime Organization, available at <http://www.londonconvention.org/documents/lc72/LIST_LC_Resolutions.doc> (13 August 2005).

75 For the sake of completeness, it was also decided in 1990 that the moratorium on sea disposal of radioactive waste includes the sub-seabed disposal of waste. See Resolution LDC 41(13), supra note 74.

76 Makhijiani, A. and Smith, B., “Costs and Risks of Management and Disposal of Depleted Uranium from the National Enrichment Facility Proposed to the Built in Lea County New Mexico by LES,” Institute for Energy and Environmental Research, redacted version, 1 February 2005, available at <http://www.ieer.org/reports/du/LESrptfeb05.pdf> (2 September 2005) at 4–5.Google Scholar Transuranics is the name given to substances with an atomic number greater than 92 (uranium) and are largely man-made radioactive substances that can undergo nuclear fission.

77 See the 1993 Radioactive Substances Act applicable in the United Kingdom, 12 (1993) 1 Law Reports Statutes 467.

78 See WHO, Depleted Uranium, Fact Sheet no. 257, RevisedJanuary 2003, available at <http://www.who.int/mediacentre/factsheets/fs257/en/> (2 May 2004).

79 This independent committee was formed in 1997 and is composed of scientists and risk specialists within Europe.

80 Busby, C., Berteli, R., Schmitz-Feuerhake, I., Scott Cato, M., and Yablokov, A., eds., ECRR 2003 Recommendations of the European Committee on Radiation Risk: The Health Effects of Ionising Radiation Exposure at Low Doses for Radiation Protection Purposes (Brussels: Green Audit, 2003).Google Scholar

81 Ibid.

82 Radiological Conditions in Areas of Kuwait, supra note 64.

83 US Department of Defense, “Exemption — Hazardous Materials — Transportation in Commerce of Munitions of Class 1 (Explosive) Hazard Containing Components Manufactured of Depleted Uranium,” Doc. RSPA-2004-18576-276, 18 May 2005. The issue concerns a DOD HazMat exemption (DOT-E 9649) from marking requirements for depleted uranium weapons. The US Department of Transportation has revoked the exemption on the basis that unmarked radioactive hazards are a risk to fire crews should there be an accident and the appreciable levels of external radiation exposure to transport workers.

84 For example, mercury and cadmium are regulated under the 1976 EC Directive 76/464 Governing Pollution Caused by Certain Dangerous Substances into the Aquatic Environment of the Community, [1976] O.J. L.129/23 at List I of Annex I; and the 1998 Protocol on Heavy Metals to the 1979 Convention on Long Range Transboundary Air Pollution, 24june 1998, (1979) 18I.L.M. 1442,available at <http://www.unece.org/env/lrtap/hm_h1.htm> (10 June 2002) (entered into force 29 December 2003).

85 For more information, see Makhijiani and Smith, supra note 76 at 18–19.

86 Ibid.

87 See Pellmar, T. C., Keyser, D. O., Emery, C., and Hogan, J. B., “Electrophysiological Changes in Hippocampal Slices Isolated from Rats Embedded with Depleted Uranium Fragments” (1999) 20(5) Neurotoxicology 785 at 790.Google ScholarPubMed

88 See “Clearance of Depleted Uranium (DU) from Range Areas,” Royal Army Ordnance Corp Technical Ammunition Bulletin no. 21/2024, 14January 1999, available at <http://www.mod.uk/linked_files/technical_ammunition_ bulletin.pdf> (2 October 2005).

89 This was recognized by the IAEA. See Radiological Conditions in Areas of Kuwait, supra note 64.

90 For an in-depth study of these various pathways, see “Opinion of the Group of Experts,” supra note 55.

91 “The Use and Hazards of Depleted Uranium Munitions,” Doc. LAND/Med/ 5072, 4 March 1997, available at <http://www.mod.uk/linked__files/ use_and_hazards_of_du.pdf> (20 January 2001).

92 “Review of the Hazards of Depleted Uranium: The Aftermath of the Gulf War,” draft paper, December 1993, at para. 37, available at <http://www.mod.uk/linked_files/aftermath_of_gulf_war_part1.pdf> (20 January 2001) [“Review of the Hazards”].

93 Durakoviae, A., Horan, P., Dietz, L. A., and Zimmerman, I., “Estimate of the Time Zero Lung Burden of Depleted Uranium in Persian Gulf War Veterans by the 24-hour Urinary Excretion and Exponential Decay Analysis” (2003) 168 Military Medicine 600.Google Scholar

94 Bishop, ed., supra note 65 at 11.

95 “Review of the Hazards,” supra note 92.

96 “Persons Affected from Depleted Uranium Weapons,” in “Radiation Exposure from Depleted Uranium Weapons,” World Information Service on Energy: Uranium Project, available at <http://www.antenna.nl/wise/uranium/#MILDU> (3 October 2005).

97 “Review of the Hazards,” supra note 92. Unlike much of this UK Ministry of Defence document, this was not denied by the subsequent paper entitled “The Use and Hazards of Depleted Uranium Munitions,” supra note 91.

98 “Review of the Hazards,” supra note 92.

99 [Emphasis added]. See WHO Mission to Kosovo, supra note 50 at 10.

100 This is according to an internal US army document, drawn up by the US army surgeon-general’s office in 1993 and seen by The Guardian newspaper. See Norton-Taylor, R., “Cancer Risk Hard to Avoid in Battle,” The Guardian, 13 January 2001, at 9.Google Scholar

101 Beeston, R. and Owen, R., “Deaths Threaten Unity of NATO,” The Times, 6 January 2001, at 14.Google Scholar

102 Miller, A. C., Stewart, M., Brooks, K., Shi, L., and Page, N., “Depleted Uranium-Catalyzed Oxidative DNA Damage: Absence of Significant Alpha Particle Decay” (2002) 91 J. Inorganic Biochemistry 246 at 251.CrossRefGoogle ScholarPubMed

103 Miller, A. C. et al., “Urinary and Serum Mutagenicity Studies with Rats Implanted with Depleted Uranium or Tantalum Pellets” (1998) 13(6) Mutagenesis 643 at 646–47.CrossRefGoogle ScholarPubMed

104 See McDiarmid, M. A. et al., “Health Effects of Depleted Uranium on Exposed Gulf War Veterans: A 10-Year Follow Up” (2004) 67 J. Toxicology and Environmental Health, 277 at Part ACrossRefGoogle ScholarPubMed. For the (anadian assessments, for example, carried out in 2002, see Ough, E. A. et al., “An Examination of Uranium Levels in Canadian Forces Personnel Who Served in the Gulf War and Kosovo” (2002) 82 Health Physics 527.CrossRefGoogle ScholarPubMed

105 Miller, A. C., Xu, J., Stewart, M., Prasanna, P. G. S., and Page, N., “Potential Late Health Effects of Depleted Uranium and Tungsten Used in Armor-Piercing Munitions: Comparison of Neoplastic Transformation and Genotoxicity with the Known Carcinogen Nickel” (2002) 167 Military Medicine 120 at 121–22, Supplement 1.Google ScholarPubMed

106 McDiarmid, M. A. et al., “Health Effects of Depleted Uranium on Exposed Gulf War Veteran,” (2000) 82(2) Environmental Research 168 CrossRefGoogle Scholar. The research tested the semen of a sample of Baltimore soldiers returning from the first Gulf conflict.

107 Domingo, J. L., “Reproductive and Developmental Toxicity of Natural and Depleted Uranium: A Review” (2001) 15 Reproductive Toxicology 603 at 603.CrossRefGoogle ScholarPubMed

108 McClain, D. E. et al., “Biological Effects of Embedded Depleted Uranium (DU): Summary of Armed Forces Radiobiology Research Institute Research” (2001) 274 Science of the Total Environment 115.CrossRefGoogle ScholarPubMed

109 See WHO, Department of Protection of the Human Environment, “Depleted Uranium: Sources, Exposure and Health Effects,” Doc. WHO/SDE/PHE/01.1 (Geneva: WHO, April 2001) available at <http://www.who.int/ionizing_ radiation/pub_meet/ir_pub/en/> (20 June 2002) and “Health Hazards of Depleted Uranium Munitions,” Part II, Royal Society, March 2002, available at <http://www.royaIsoc.ac.uk/displaypagedoc.asp?id=9825> (5 June 2002).

110 See Zajic, supra note 39, quoting “Guidelines for Safe Response to Handling, Storage, and Transportation Accidents Involving Army Tank Munitions and Armor Which Contain Depleted Uranium,” Doc. TB g-1300-278 (September 1990), at Appendix F, available at <http://www.members.tripod.com/vzajic/9thchapter.html> (3 September 2004).

111 See the working paper submitted by Y.K.f. Yeung Sik Yuen to the Sub-Commission on the Promotion and Protection of Human Rights, UN ESCOR, Human Rights and Weapons of Mass Destruction, or with Indiscriminate Effect, or of a Nature to Cause Superfluous Injury or Unnecessary Suffering, UN Doc. E/CN.4/Sub.2/2002/38 (27 June 2002) at paras. 144(c) (d).

112 Ibid. at para. 144(g). See also McHugh, J., “Sick Guard Members Blame Depleted Uranium,” Army Times, 9 April 2004.Google Scholar

113 [Emphasis added]. See “Opinion of the Group of Experts,” supra note 55.

114 Department of Defence, Environmental Exposure Report, Depleted Uranium in the Gulf (II), 13 December 2000, available at <http://www.deploymentlink.osd.mil/du_library/du_ii/index.htm#tabp> (10 August 2001).

115 Ibid.

116 See Hahn, Flecther F., Guilmette, Raymond A., and Hoover, Mark D., “Implanted Depleted Uranium Fragments Cause Soft Tissue Sarcomas in the Muscles of Rats,” Respiratory Research Institute, New Mexico, (2002) 110(1) Environmental Health Perspectives 51.Google Scholar

117 See McDiarmid et al., supra nole 104.

118 Ibid. at 289.

119 Ibid. at 287–88.

120 Ibid. at 291.

121 Depleted Uranium in Serbia, supra note 61 at 27.

122 Zajic, supra note 39.

123 See the Questions on the Violation oj Human Rights and Fundamental Freedoms in Any Part of the World, Iraq Note Verbale dated 3 Feburary 2000 to the United Nations High Commissioner for Human Rights, Doc. E/CN.4/2000/121 (16 February 2000) at 3.

124 “United Nations Environment Programme Recommends Precautionary Action Regarding Depleted Uranium in Kosovo,” UNEP News Release 01/36, available at <http://www.unep.org/Documents.Multilingual/Default.aspPDocumentID=193&ArticleID=2789&l=en> (3 April 2001) [“UNEP Recommends Precautionary Action”].

125 Ibid.

126 Depleted Uranium in Serbia, supra note 61 at 33; and Depleted Uranium in Kosovo, supra note 28 at 34.

127 Ibid.; and Depleted Uranium in Serbia, supra note 61 at 34.

128 See Ad Hoc Committee on Depleted Uranium, Statement by the United Kingdom Minister for the Armed Forces on Depleted Uranium, 10 January 2001, available at <http://www.nato.int/du/docu/do10110a.htm> (10 September 2001).

129 Ad Hoc Committee on Depleted Uranium, Actions Taken by Switzerland Concerning Depleted Uranium, 25 January 2001, available at <http://www.nato.int/du/docu/do10125a.htm> (27 August 2001).

130 Statement by the Secretary General on the Use of Depleted Uranium Munitions in the Balkans, Doc. NATO 10/« 1 /01, available at <http://www.nato.int/docu/pr/2001/p01-002e.htm> (4 March 2001).

131 “No DU Weapons Risk, Say Experts,” 6 March 2001, Newsnight, available at <http://news.bbc.co.Uk/1/hi/world/europe/1205632.stm> (21 March 2001).

132 Ibid.

133 “DU Test Shell Firing Resumes,” BBC News Online, 21 February 2001, reporting comments of Defence Minister Dr Lewis Mooney; and Shukman, D., “Scots Fear 111 Wind,” BBC Nexos Online, 20 February 2001.Google Scholar

134 See Hanson, W. C. and Miera, F. R., “Further Studies of Long-Term Ecological Effects of Exposure to Uranium,” Los Alamos Scientific Laboratory, University of California, July 1978.Google Scholar

135 Ibid., Chapter 7.

136 Depleted Uranium in Bosnia, supra note 54 at 30.

137 Ibid.

138 Ibid. at 32.

139 Hanson and Miera, supra note 134, Chapter 7.

140 Depleted Uranium in Serbia, supra note 61 at 30–31 and 140–51.

141 Depleted Uranium in Kosovo, supra note 28 at 75.

142 Ad Hoc Committee on Depleted Uranium, “Health Aspects of the Balkans-DU Crisis: The Italian Experience,” 1 February 2001, available at <http://www.nato.int/du/docu/do10201a.htm> (6 March 2001).

143 Depleted Uranium in Kosovo, supra note 28 at 27; and Depleted Uranium in Saina, supra note 61 at 24.

144 Depleted Uranium in Kosovo, supra note 28 at 50, 56, 65, and 90. At one site in Bellobrade/Belobrod, more than one thousand rounds were fired and not one depleted uranium penetrator was found (at 91).

145 “House of Lords: Lord Parry’s ‘Starred’ Question on 8 December on Depicted Uranium Shells,” Doc. C.585/1/3/HDRPS (1 December 1993) at para. 40, available at <http://www.mod.uk/linked_fiIes/lord_parry_brief.pdf.> (20 January 2001) [“Lord Parry’s ‘Starred’ Question”].

146 Depleted Uranium in Bosnia, supra note 54 at 30.

147 Depleted Uranium in Serbia, supra note 61 at 30.

148 Depleted Uranium in Bosnia, supra note 54 at 36.

149 For the European Parliament, see “Unexploded Ordnance and Depleted Uranium Ammunition,” Verbatim Report of Proceedings, 12 February 2003, available at <http://www.europarl.eu.int/cre/cre?FILE=20030212r&LANGUE=EN&LEVEL=DOC&NUMINT=3-224&LEG=L5> (3January 2004); see also Scott, K., “Moratorium Sought on DU Shell Testing,” The Guardian, 21 February 2001.Google Scholar

150 Depleted Uranium in Serbia, supra note 61 at 9–10.

151 Depleted Uranium in Kosovo, supra note 28 at 35. Here none of the cow’s milk tested showed depleted uranium contamination.

152 Lotus Case (France v. Turkey) (1927), P.C.I.J. (Ser. A) No. 10 at 239.

153 Vaghts, D. F., “The Hague Peace Conferences: The Hague Conventions and Arms Control” (2000) 94 Am. J. Int’l L. 31.CrossRefGoogle Scholar

154 1868 St. Petersburg Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight, 11 December 1868, (1907) 1 Am. J. Int’l L. 95 at Supplement (entered into force 11 December 1868) [St. Petersburg Declaration]. See also Schindler, D. and Toman, J., The Laws of Armed Conflicts: A Collection of Conventions, Resolutions and Other Documents (Leiden: Martinus Nijhoff, 2004) at 91 Google Scholar. Invented by the Russian military, the bullet would explode and shatter on contact with a soft target.

155 1863 Lieber Code, reprinted in Shelly Hartigan, R., Lieher’s Code, and the Laxo of War (Chicago: Precedent Press, 1983).Google Scholar

156 1874 Project of an International Declaration Concerning the Laws and Customs of War, adopted by the Conference of Brussels, 27 August 1874, (1907) 1 Am. J. Int’l L. 1 at Supplement (not yet entered into force) [1874 Brussels Declaration]. The declaration was not ratified in binding form, but the Institute of International Law later adopted the text as the 1880 Oxford Manual of the Laws and Customs of War: The Leaos of War on Land (No. 3), which was adopted by the Institute of International Law, Oxford, 9 September 1880; originally written in French, an English translation is available at <http://www.icrc.org/ihl.nsf> (3 April 2004) (No. 3). Both instruments would form the basis of a new convention in 1899.

157 1899 Hague Convention (II) with Respect to the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land, 29 July 1899, 26 Martens Nouveau Recueil (Ser. 2) 949 (entered into force 4 September 1900) [1899 Hague Convention II].

158 1907 Hague Convention IV, supra note 8.

159 Geneva Conventions I-IV, supra note 10.

l60 Geneva Protocol I and Geneva Protocol II, supra note 11.

161 Hague Declaration (IV, 2) Concerning Asphyxiating Gases, 29 July 1899, (1907) 1 Am, J. Int’l L. 157 at Supplement (entered into force 4 September 1900).

162 Hague Declaration (IV, 3) Concerning Expanding Bullets, 29 July 1899, (1907) U.K.T.S. 32, Cd. 3751 (entered into force 4 September 1900) [Hague Declaration IV]. The bullet was manufactured by the British in Calcutta to face a very specific target — the toughened fighters of Afghanistan. See Carnahan, B. M., “Unnecessary Suffering: The Red Cross and Tactical Laser Weapons” (1996) 18 Loy. L.A. Int’l & Comp. L.J. 705 at 718–21.Google Scholar

163 1874 Brussels Declaration, supra note 156.

164 1899 Hague Convention II, supra note 157. See also Article 22 of 1907 Hague Convention IV, supra note 8.

165 1946 Judgment of the International Military Tribunal at Nuremberg, Trial of the Major War Criminals before the International Military Tribunal, vol. XXII (Nuremberg: International Military Tribunal Secretariat, 1948) at 497.

166 Geneva Protocol I, supra note 11.

167 por a detailed analysis of military self-interest as it evolved from early Greek warfare to Napoleonic times and the twentieth century, see Howard, M., Andreopoulos, G. J., and Shulman, M. R., The Laws of War: Constraints on Warfare in the Western World (London: Yale University Press, 1994) at 13 Google Scholar. Also worthy is Turner Johnson, J., Just War Tradition and the Restraint of War (Guildford: Princeton University Press, 1981) at 297.Google Scholar

168 See the philosophy of Hugo Grotius, in Bull, H., Kingsbury, B., and Roberts, A., Hugo Grotius and International Relations (Oxford: Clarendon Press, 1992)CrossRefGoogle Scholar; and the Martens Clause in the 1899 Hague Convention II, supra note 157.

169 1925 Geneva Gas Protocol, supra note 9.

170 1977 United Nations Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, 18 May 1977, (1977) 16 I.L.M. 88-94 (entered into force 5 October 1978) [Environmental Modification Convention].

171 1980 Conventional Weapons Convention, supra note 16.

172 LaCroix, W. L., War and the International Ethics: Tradition and Today (Lanham: University Press of America, 1988) at 69 Google Scholar; and Johnson, supra note 167 at 133–9.

173 The principle of proportionality is a customary rule, first being incorporated in the 1863 Lieber Code, supra note 155, which stipulates that “[m]ilitary necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests of war” [emphasis added]. The latest treaty provision is included in Article 51 (5) (b) of Geneva Protocol I, supra note 11.

174 Articles 35(3) and 55 of Geneva Protocol I, ibid. For a similar statement regarding the assessment of legality for nuclear weapons, see the Case Concerning the Legality of the Threat or Use of Nuclear Weapons, 8 July 1996, (1996) 35 I.L.M. 809 at para. 105(2)(D) [Nuclear Weapons].

175 See General Assembly Resolution 1653 (XVI), 24 November 1961, at para, i (d), reproduced in Resolutions Adopted by the General Assembly during its Sixteenth Session, Volume 1, 19 September 1961–23 February 1962, General Assembly Official Records: Sixteenth Session, Supplement no. 17 (A/5100) (New York: United Nations, 1962) at 4. The resolution was adopted by fifty-five votes to twenty, with twenty-six abstentions.

176 See General Assembly Resolution 2936 (XXVII), 29 November 1972, at para. 1, reproduced in Resolutions Adopted by the General Assembly during its Twenty-seventh Session, 19 September-19 December 1972, General Assembly Official Records: Twenty-Seventh Session, Supplement No. 30 (A/8730) (New York: United Nations, 1973) at 5. The resolution was adopted by seventy-three votes to four, with forty-six abstentions.

177 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, 13 January 1993, (1993) 32 I.L.M. 800 (entered into force 29 April 1997) [Chemical Weapons Convention]; and 1972 Convention on the Prohibition and Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and Their Destruction, 10 April 1971, (1972) 11 I.L.M. 309 (entered into force 28 March 1975).

178 1968 Treaty on the Non-Proliferation of Nuclear Weapons, i July 1968, 729 U.N.T.S. 161 (entered into force 5 March 1970). Despite the twenty-five-year clause in the original treaty, state parties met in 1995 and voted to extend the applicability of the treaty indefinitely.

179 1996 Comprehensive Test Ban Treaty, 24 September 1996, (1996) 35 I.L.M. 1443 (not yet entered into force). The treaty has some 135 ratifications in 2006, but will not enter into force until all of the states listed in Annex II to the treaty have ratified. The following states are missing from the list, the United States and China, and nuclear weapon states Pakistan, North Korea, and India, plus Colombia, Egypt, Indonesia, Iran, and Israel.

180 Letter dated 21 April 1995 from the Head of the Delegation of the United Kingdom of Great Britain and Northern Ireland Addressed to the Secretary-General of the 1995 Review and Extension Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, New York, Doc. NPT/ CONE 1995/24 (21 April 1995). The court in the Nuclear Weapons advisory opinion highlighted the fact that the nuclear weapons states had, in these declarations, reserved the right to use nuclear weapons in certain circumstances without objection by other states. Thus, the court concluded that there was no customary or treaty law prohibiting nuclear weapons. See Nuclear Weapons, supra note 174 at para. 62.

181 Letter dated 25 April 1995 from the Permanent Representative of the People’s Republic of China to the United Nations and Deputy Head of the Chinese Delegation Addressed to the Secretary-General of the 1995 Review and Extension Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, New York, Doc. NPT/CONF.1995/26 (27 April 1995).

182 1963 Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space and Under Water, 5 August 1963, (1963) 480 U.N.T.S. 43 (entered into force 10 October 1963) [Partial Test Ban Treaty].

183 Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean, 14 February 1967, (1967) 6 I.L.M. 521 (entered into force 22 April 1968) [Latin American Nuclear-Free Zone Treaty].

184 Additional Protocol II to the Treaty for the Prohibition of Nuclear Weapons in Latin America, in ibid.

185 The signatory states are Antigua and Barbuda, Argentina, Bahamas, Barbados, Belize, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Dominica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Guyana, Haiti, Honduras,Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, St. Kitts and Nevis, St. Lucia, St. Vincent/Grenadines, Suriname, Trinidad and Tobago, Uruguay, and Venezuela.

186 See Proclamation by President Nixon on Ratification of Additional Protocol II to the Treaty for the Prohibition of Nuclear Weapons in Latin America, 11 June 1971, available at <http://www.state.gov/t/ac/trt/4796.htm> (12 September 2005) at para. I.

187 1985 South Pacific Nuclear Free Zone Treaty, 6 August 1985, (1988) 24 I.L.M. 142 (entered into force 11 December 1986) [South Pacific Nuclear-Free Zone Treaty]; 1996 African Nuclear Weapon-Free Zone Treaty, 11 September 1996, (1996) 35 I.L.M. 698 (not yet entered into force) (so far the treaty has only eighteen out of the twenty-eight ratifications needed) [African Nuclear Weapon-Free Zone Treaty]: and 1996 Treaty on Southeast Asia Nuclear Weapon-Free Zone, 15 December 1995, ( 1996) 35 I.L.M. 698 (entered into force 27 March 1997) [Southeast Asia Nuclear Weapon-Free Zone].

188 Latin American Nuclear-Free Zone Treaty, supra note 183, Article 5.

189 See UNGA Resolutions, 1653 (XVI), 24 November 1961, Doc. 33/71 B of 14 December 1978, Doc. 34/83 G of 11 December 1979, Doc. 35/152 D of 12 December 1980, Doc. 36/92 1 of 9 December 1981, Doc. 45/59 B of 4 December 1990, and Doc. 46/37 D of 6 December 1991.

190 Nuclear Weapons, Advisory Opinion, supra note 174. The conclusion reached by the court and its lack of application of legal norms in a logically coherent way have attracted considerable criticism. For example, see Schmitt, M. N., “The International Court of Justice and the Use of Nuclear Weapons” (1996/7) 7 USAFA J. Leg. Stud. 57.Google Scholar

191 Ibid. at para. 105(2)B.

192 Partial Test Ban Treaty, supra note 182.

193 South Pacific Nuclear-Free Zone Treaty, supra note 187; African Nuclear Weapon-Free Zone Treaty, supra note 187; and Southeast Asia Nuclear Weapon-Free Zone, supra note 187.

194 Apparently the 1988 Yugoslavian military manual contains a provision allowing for the poisoning of drinking water and food if it is announced or marked. See Henkaerts and Doswald-Beck, supra note 14 at volume I, chapter 23, p. 253 and Volume II, Chapter 21, para. 52.

195 Green, L. C., “What One May Do in Combat: Then and Now,” in Delissen, A. and Tanja, G., eds., Humanitarian Law of Armed Conflict: Challenges Ahead, Essays in Honour of Frits Kalshoven (London: Martinus Nijhoff, 1991) at 269.Google Scholar

196 Lieber’s Code and the Law of War, supra note 155. A similar provision was then included within the 1874 Brussels Declaration, supra note 156, which influenced the text of the 1899 Hague Convention II, supra note 157. Consequently, Article 13(a) prohibited the employment of poison or poisoned weapons.

197 1899 Hague Convention II, supra note 157. See also Vaghts, supra note 153.

198 1899 Hague Convention II, supra note 157.

199 1899 Declaration (iv, 2) Concerning Asphyxiating Gases, supra note 161.

200 [Emphasis added]. Ibid.

201 Hague Convention IV, supra note 8. The convention is generally taken to be customary law. See 1946 Judgment of the International Military Tribunal at Nuremberg, supra note 165 at 497.

202 Smolowe, J., “Return of the Silent Killer,” Time, 22 August 1988, at 26.Google Scholar

203 1919 Treaty of Versailles, 28 June 1919, available at <http://history.acusd.edu/gen/text/versaillestreaty/vercontents.html> (10 June 2002), Article 171.

204 Geneva Gas Protocol, supra note 9.

205 Ibid. Here, both the English text is referred to — “other” — and the French text — “similaires.” Both texts are authoritative. Many reservations were attached to the treaty to ensure that it applied only between states. See, for example, the reservation of Iraq.

206 There are 139 state parties to the treaty in 2005, which has been widely adopted in the instruments of the Security Council and General Assembly. See, for example, General Assembly Resolution 3465 (XXX), Chemical and Bacteriological Weapons, 11 December 1975, 2437th Plenary Meeting, where the UN General Assembly “reaffirms the necessity of strict observance by all states of the princi-ples and objectives of that Protocol.”

207 Nuclear Weapons, supra note 174.

208 Ibid. at paras. 54–56. See also the dissenting opinion of Judge Koroma at 933.

209 Advisory Proceedings on the legality of the Threat or Use of Nuclear Weapons (Question Posed by the General Assembly): Written Observations on the Request by the General Assembly for an Advisory Opinion Government of the United Kingdom, 16 June 1995, available at <http://www.icj-cij.org/icjwww/icases/iunan/iunanframe.htm> (10 September 2002) at para. 3.59–3.60 [Advisory Proceeding on Nuclear Weapons].

210 Chemical Weapons Convention, supra note 177.

211 Ibid., Article I(1)).

212 Ibid., Article I(1)(b).

213 Ibid., Article I(1)(a).

214 Ibid., Article I(1)(d).

215 Ibid., Article IX.

216 Not including the Holy See.

217 Chemical Weapons Convention, supra note 177, Article 11(2) [emphasis added]. See also the Annex on Chemicals for the guidelines on including chemicals in the schedules.

218 See “Question of Chemical and Bacteriological Weapons,” UN General Assembly Resolution 2603A (XXIV), 16 December 1969, 1836th Plenary Meeting, reprinted in Resolutions Adopted by the. General Assembly during its Twenty-Fourth Session, 16 September — 17 December 1969. General Assembly Official Records: Twenty-fourth Session Supplement No. 30 (A/7630) (New York: United Na-tions, 1970); and the 1925 Geneva Gas Protocol, supra note 9.

219 [Emphasis added]. UN General Assembly Resolution 2603A, reprinted in Resolutions Adopted by the General Assembly during its Twenty-Fourth Session, supra note 218 at 16.

220 Nuclear Weapons, supra note 174.

221 [Emphasis added]. Ibid. at para. 55.

222 [Emphasis added]. See Krutzsch, W. and Trapp, R., A Commentary on the Chemical Weapons Convention (London: Martinus Nijhoff, 1994) at 25.Google Scholar

223 1868 St. Petersburg Declaration, supra note 154.

224 Vaghts, supra note 153 at 35.

225 1868 St. Petersburg Declaration, supra note 154.

226 1899 Hague Declaration (IV), supra note 162.

227 Lieber’s Code and the Law of War, supra note 155.

228 1868 St. Petersburg Declaration, supra note 154.

229 1899 Hague Convention II, supra note 157. See also 1907 Hague Convention IV, supra note 8, Article 23(e).

230 Henkaerts and Doswald-Beck, supra note 14 at volume I, chapter 20, pp. 23744, and Volume II, Chapter 20, Section A, at paras. 1–126. There is no similar provision in Geneva Protocol II, supra note 11.

231 Despite earlier inclusion, the draft article containing the provision (Draft Article 20(2)) was dropped as part of the package to adopt a simplified text. As recognized in the International Commission of the Red Cross (ICRC) study, there was no objection to inclusion by states to situations of internal armed conflict at that time, see Henkaerts and Doswald-Beck, supra note 14 at volume I, chapter 20, p. 239.

232 1977 Geneva Protocol I, supra note 11. The principle can also be found in Article 8(a)(b)(xx) of the 1998 Rome Statute of the International Criminal Court, 17 July 1998, (1998) 37 I.L.M. 999 (entered into force 1 July 2002) [Rome Statute].

233 Two English translations (“superfluous injury” and “unnecessary sufferings”) were provided for the original French expression “maux superflus” found in the 1874 Brussels Declaration, supra note 156. While the 1899 Hague Convention II, supra note 157, preferred the translation of “superfluous injury,” the 1907 Hague Convention IV, supra note 8, text refers to “unnecessary suffering.” To avoid doubt, English treaty texts routinely refer to both.

234 1980 Conventional Weapons Convention, supra note 16.

235 Carnahan, supra note 162 at 712–13.

236 As expressed by the United States delegation to the 1974 Conference of Government Experts on Weapons Which May Cause Unnecessary Suffering or Have Indiscriminate Effects ( 1974 Lucerne Conference), in “Resort to War and Armed Force” (1974) Digest 1 at 707 [“Resort to War”].

237 In trying to establish universal measuring tools for the principle, the ICRC has created criteria for “unnecessary suffering.” Criteria recognized by the authors as breaching the principle include specific disease, specific abnormal physiological state, specific and permanent disability or specific disfigurement. The criteria are not binding however, and have been the subject of heavy criticism. See Coupland, R. M., “The SIrUS Project: Towards a Determination of Which Weapons Cause ‘Superfluous Injury or Unnecessary Suffering’,” in Durham, H. and McCormack, T. L. H., eds., The Changing Face of Conflict and the Efficacy of International Humanitarian Law (London: Martinus Nijhoff, 1999), 99.Google Scholar

238 See the early prohibition on poison and poisoned arrows in the Hindu Laws of Manu, c. 200 BC, in Green, supra note 195 at 269.

239 1868 St. Petersburg Declaration, supra note 154.

240 1899 Hague Declaration (IV, 3), supra note 162.

241 MajorVerchio, D. M., “Just Say NO! The SlrUS Project: Well-intentioned, But Unnecessary and Superfluous” (2001) 51 Air Force L. Rev. 183.Google Scholar

242 Protocol I to the CCW on Non-Detectable Fragments, supra note 16; and Protocol IV on Blinding Laser Weapons, supra note 16.

243 China developed the ZM-87 anti-optic laser in 1995 and began marketing the product abroad. Unlike other laser systems under development, the product appeared to be marketed with the emphasis on its potential for blinding the enemy. See McCall, J. H., “Blinded by the Light: International Law and the Legality of Anti-Optic Laser Weapons” (1997) 30 Cornell Int’l L.J. 1 at 9–11.Google Scholar

244 See 1874 Brussels Declaration, supra note 156, Article 13(e); and 1907 Hague Convention IV, supra note 8, Article 23(e).

245 For an account of a similar debate at the drafting sessions of the 1998 Rome Statute, supra note 232, establishing the International Criminal Court, see Clark, R. S., “Methods of Warfare That Cause Unnecessary Suffering or Are Inherently Indiscriminate: A Memorial Tribute to Howard Berman” (1998) 28 Cal. W. Int’l L.J. 379.Google Scholar

246 United Kingdom Ministry of Defence, Manual of the Law of Armed Conflict (Oxford: Oxford University Press, 2004) at 103, quoting Bothe, M., Partech, K. J., and Solf, W. A., New Rules for the Victims of Armed Conflicts: Commentary on the Two 1977 Additional Protocols to the Geneva Conventions of 1949 (The Hague: Martinus Nijhoff, 1982) at 196.Google Scholar

247 United Kingdom Ministry of Defence, supra note 246.

248 Ibid. at 102.

249 Ibid.

250 Reproduced in CaptainRobblee, P. A. Jr., “The Legitimacy of Modern Conventional Weaponry” (1976) 71 Military L. Rev. 95 at 119.Google Scholar

251 Ibid.

252 Ibid.

253 Ibid. See also Carnahan, supra note 162 at 714.

254 This factor is also recognized by the United Kingdom. See United Kingdom Ministry of Defence, supra note 246 at 102.

255 Robblee, Jr., supra note 250 at 119; see also “Resort to War,” supra note 236 at 708.

256 Carnahan, supra note 162 at 726.

257 Parks, H., “Joint Service Combat Shotgun Program” (1997) Army L. 16 at 19.Google Scholar

258 Geneva Protocol I, supra note 11, Article 35(2).

259 Ibid., Article 36.

260 Verchio, supra note 241 at 195 and 225.

261 This is the current version dated 12 May 2003. The original provision in 1977 was the Department of Defence Instruction 5500.15 (16 October 1974). Article 36 is not binding as treaty law on the United States.

262 Henkaerts and Doswald-Beck, supra note 14 at volume 1, chapter 20, pp. 242–43.

263 United Kingdom Ministry of Defence, supra note 246 at 103.

264 The ICRC has traditionally performed a very important role in overseeing the implementation of the laws of armed conflict on the battlefield and is often viewed as the guardian of Geneva law. In trying to establish a purely medical test for weapons that cause unnecessary suffering, however, the ICRC, and one of its authors, Robin Coupland, in particular, has faced fierce criticism from military figures. See Durham and McCormack, eds., supra note 237; and Verchio, supra note 241.

265 Nuclar Weapons, supra note 174.

266 See Henkaerts and Doswald-Beck, supra note 14, at volume 1, chapter 20, p. 243. The oral pleadings and written statements of fourteen states are then listed in evidence, including those of the United Kingdom and the United States.

267 Ibid. The Samoan statement (at Volume 2, Chapter 20, Section A, at para. 175) is interesting in that it declares its belief that the prohibition on the use or threat of use of nuclear weapons has already been achieved under international law and then goes on to quote a number of treaties, including the St. Petersburg Declaration, supra note 154, and the 1907 Hague Convention IV, supra note 8. In its statement, Samoa does not specifically mention the principle prohibiting unnecessary suffering, but it is implicit by its quoting of these particular treaties.

268 Advisory Proceeding on Nuclear Weapons, supra note 209 at 50.

269 Verchio, supra note 241 at 194.

270 Depleted uranium may also have been used inside the nosecone of cruise missiles, but this has not been confirmed. Some Russian anti-tank cartridges also measure up to 125 mm.

271 Because of the lengthier periods of exposure, soldiers firing depleted uranium ammunition are expected to have a much higher dosage of depleted uranium contamination. Tests indicate that the gamma radiation these soldiers receive after 1,000 hours is equivalent to the average annual external dose from natural background radiation. See Harley, N. H., Foulkes, E. C., Hilborne, L. H., Hudson, A., and Anthony, C. R., “A Review of the Scientific Literature as It Pertains to Gulf War Illnesses,” 1999, Depleted Uranium, RAND Corporation National Defense Research Institute, no. 7, Washington, DC, available at <http://www.gulflink.osd.mil/library/randrep/du/> (10 July 2005).Google Scholar

272 See earlier section regarding health effects.

273 See “Opinion of the Group of Experts,” supra note 55 at 5.

274 McHugh, supra note 112.

275 Dr.Berteli, Rosalie, “Gulf War Veterans and Depleted Uranium,” Depleted Uranium: A Post-War Disaster for Environment and Health, Part 3, Laka Foundation, May 1999, available at <http://www.laka.org/teksten/Vu/hap-99/3.html> (7 May 2001).Google Scholar

276 “Depleted Uranium May Cause Higher Risk of Lung Cancer for Some Soldiers,” Royal Society of Biology, 22 May 2001, available at <http://www.royalsoc.ac.uk/news.asp?id=2526> (2 July 2002).

277 His levels in 1994 were reported as 2,000 times the norm, in Yeung Sik Yuen, supra note 111 at para. 155.

278 Ibid.

279 See the letter of 15 September 2000, entitled “Facts on Consequences of the Use of Depleted Uranium in the NATO Aggression against the Federal Republic of Yugoslavia in 1999,” Doc. A/55/398-S/2000/883 (20 September 2000) at para. 8 [“Yugoslavia Letter 2000”].

280 For weapon specifications, see Global Security, available at <http://www.globalsecurity.org> (10 May 2005).

281 Cf., in a letter submitted to the secretary-general of the United Nations, Yugoslavia reported that for the 30,000-50,000 depleted uranium weapons dropped only twelve tanks had been destroyed. See the ‘Yugoslavia Letter 2000,” supra note 279 at para. 8.

282 Picatinny Products, available at <http://www.pica.army.mil/PicatinnyPublic/products_services/products12.asp> (20 September 2005).

283 “Depleted Uranium FAQs,” supra note 34.

284 “T-9os Main Battle Tank, Russia,” Army-Technology, available at <http://www.army-technology.com/projects/t90/> (21 September 2005).

285 “M829E3 120-mm APFSDS-T Cartridge,” Global Security, available at <http://www.globalsecurity.org/military/library/budget/172001/dot-e/army/o1m829e3.html> (21 September 2005).

286 Carnahan, supra note 162 at 726. See also Kalshoven, F., “Conventional Weaponry: The Law from St. Petersburg to Lucerne and Beyond,” in Meyer, M. A., ed., Armed Conflict and the New Law (London: British Institute of International and Comparative Law, 1989), 251 at 254–62.Google Scholar

287 Advisory Proceeding on Nuclear Weapons, supra note 209 at 28–9.

288 The actual range achieved in combat was 5.1 kilometres (km) apparently by a British Challenger 2 tank firing 120 mm APFSDS CHARM rounds. See “APFSDS Army-Technology,” supra note 33.

289 Ibid.

290 Hambling, D., “Why Deadly Depleted Uranium Is the Tank Buster’s Weapon of Choice,” The Guardian, 18 May 2000 Google Scholar. Tantalum is used in a new generation of anti-armour weaponry, the Sadarm (seek and destroy armour), which in missile form, appears to have a range of up to 100 km combined with infrared sensors to seek out their target. It can also come in a manually emplaced form (see discussion of the US Mg3 Hornet, “M93 Hornet,” Global Security, available at <http://www.globalsecurity.org/military/systems/munitions/m93.htm> (22 September 2005). Still in the experimental stages of development, the environmental and human effects of tantalum, however, are not yet fully known, but it is highly toxic.

291 “Anti-Armoui Ammunition,” supra note 68 at para. 1.

292 The 20 per cent figure was emoted in Brown, P., “Cheap and Lethal Nuclear Byproduct,” The Guardian, 12 January 2001, at 8 Google Scholar; and see “Depleted Uranium FAQs,” supra note 34.

293 See Gsponer, A., “Depleted Uranium Weapons, The Whys and Wherefores,” 2003, Independent Scientific Research Institute, Switzerland, available at <http://arxiv.org/PS_cache/physics/pdf/0301/0301059.pdf> (21 July 2004) at 10.Google Scholar

294 “Depleted Uranium Munitions,” supra note 57 at 5.

295 Gsponer, supra note 293 at 14.

296 Ibid. at 13.

297 Ibid.

298 Ibid.

299 “Depleted Uranium FAQs,” supra note 34.

300 por the German view, see Gsponer, supra note 293 at 4; and for the Australian government’s view, see Official Hansard of the Commonwealth of Australia, Senate, No. 3, 2003, 20 March 2003, at 9873.

301 Official Hansard of the Commonwealth of Australia, supra note 300 at 9873

302 “120mm Advanced Tungsten Cartridge KEW-A1 APFSDS-T” and “ 120mm KEW-A2 APFSDS-T,” Direct Tank Fire Ammunition, General Dynamics Ordnance and Tactical Systems, available at <http://www.gd-ots.com/sitepages/dirfire. html#KEW> (25 September 2005).

303 Ibid.

304 “120mm Tank Gun KE Ammunition” (2004) 5 Defense Update, available at <http://wwiv.defense-update.com/products/digits/12oke.htm> ( 26 September 2005).

305 Smith, M., “Army Buys Safer Tank Ammunition,” Daily Telegraph, 10 January 2002, at 12.Google Scholar

306 Ibid.

307 Miller, A. et al., “Potential Late Health Effects of Depleted Uranium and Tungsten used in Armor-Piercing Munitions: Comparison of Neoplastic Transformation and Genotoxicity with the Known Carcinogen Nickel” (2002) 167(2 Supplement) Military Medicine 120 Google ScholarPubMed. Miller et al. work for the Applied Cellular Radiobiology Department in the Armed Forces Radiobiology Research Institute, Bethesda.

308 Hays Parks, W., “Memorandum for Office of the Project Manager, Tank and Medium Caliber Armament System, Picatinny Arsenal, NJ 07806-5000: Subject – Cartridge 25mm, Armour-Piercing, Fin-Stabilized Discarding Sabot with Tracer (APFSDS-T), M919, Legal Review,” Doc. DAJA-IO (27-1a) (16 March 2001) at 2 Google Scholar [hard copy on file with author] [“Memorandum for Office of the Project Manager, M919”]. This is the US Judge Advocate General of the army’s final legal review of the 25 mm M919 APFSDS-T.

309 This view is held by the United States and others, see Hays Parks, W., “Memorandum for Office of the Project Manager, Tank and Medium Caliber Armament Systems (SFAE-GCSS-TMA), Picatinny Arsenal, New Jersey 07806-5000: Subject – M829E3 Cartridge, 120mm Armour-Piercing, Fin-Stabilized Discarding Sabot with Tracer, Final Legal Review,” Doc. DAJA-IO (27-1a) (4 October 2001)Google Scholar [hard copy on file with author]. This is the US Judge Advocate General of the army’s final legal review of the M829E3 cartridge 120 mm armour-piercing fin-stabilized discarding sabot with tracer.

310 See “Depleted Uranium (DU),” United Kingdom Ministry of Defence, available at <http://www.mod.uk/DefenceInternet/AboutDefence/WhatWeDo/ HealthandSafety/Depleted+Uranium/> (15 August 2006).

311 “GAU-8,” Military Analysis Network, available at <http://www.fas.org/man/dod-ioi/sys/ac/equip/gau-8.htm> (26 September 2005).

312 Carnahan, supra note 162 at 717.

313 Ibid. As Carnahan recognizes, however, this is not a universally held view. He quotes Hughes-Morgan, D., “Legal Criteria for the Prohibition or Restriction of Use of Categories of Conventional Weapons,” in Meyer, , ed., supra note 286 at 259 Google Scholar

314 “Memorandum for Office of the Project Manager, M919,” supra note 308 at 3.

315 Gsponer, supra note 293 at 14.

316 Briefing by Mr. Mark Laity, NATO acting spokesman, Lt. Col. Scott Bethel, Dr. Michael Kilpatrick, and Col. Eric Daxon, 10 January 2001, available at <http://www.nato.int/docu/speech/2001/s010110b.htm> (3 February 2001). Although soldiers also reported that the range was so long that they were not always able to positively record a direct hit. See Health and Environmental Consequences of Depleted Uranium Use in the U.S. Army: Technical Report, US Army Environmental Policy Institute Report, June 1995, available at <http://www.fas.org/man/dod-iot/sys/land/docs/techreport.html> (10 january 2001 ) at Chapter 4.1.

317 Peterson, Scott, “Depleted Uranium Concerns Boost Non-Radioactive Bullet,” Christian Science Monitor, 18 January 2001.Google Scholar

318 The 20 mm rounds remain in the arsenal of these states and may be owned by other states, therefore, the legality of the rounds needs to be assessed. According to one journalist, following its naval forces, the US air force announced in 2003 that in the future its anti-tank weaponry will not employ depleted uranium weaponry. See Fialka, J., “Weighing Claims about Depleted Uranium,” Wall Street Journal, 2 January 2003, at A4Google Scholar. This does not appear to have been reported elsewhere, particularly by the US airforce.

319 Norton-Taylor, R., “Ministry with a Vested Interest,” The Guardian, 16 January 2001, at 22.Google Scholar

320 Even the manufacturer has commented that it ceased production “amid safety fears,” quoted from the “Royal Navy Phases out DU Ammo,” supra note 6.

321 Ibid.

322 “Depleted Uranium,” supra note 310.

323 Gsponer, supra note 293 at 15.

324 St. Petersburg Declaration, supra note 154.

323 Ibid, at para. 3 [emphasis added].

326 Henkaerts and Doswald-Beck, supra note 14 at volume I, chapter 3, p. 37, recognizes the customary status of the prohibition of indiscriminate attacks for both international and internal armed conflict. This is included as Rule 11.

327 Geneva Protocol I, supra note 11.

328 Ibid., Article 50(1).

329 Geneva Convention III, supra note 10.

330 Geneva Protocol I, supra note 11, Article 52(2).

331 Geneva Protocol II, supra note 11, Article 4(1). See also Article 13 in Additional Protocol II, which directs in more basic terms only that civilians shall not be the object of attack. The concept can also be discerned from Common Article 3 of the 1949 Geneva Conventions, supra note 10. The principle has also been more recently included in treaty law applicable in internal armed conflicts, namely Article 3(8) of Amended Protocol II to the 1980 Conventional Weapons Convention, supra note 16.

332 This is known as the rule of proportionality in attack and can be found at Article 51 (5) (b) of Geneva Protocol I, supra note 11.

333 The first definition, according to Bothe, Partsch, and Solf, supra note 246 at 305.

334 As of August 2006.

333 See Protocol II of the 1980 Conventional Weapons Convention, supra note 16, Article 3(3)(c); and Amended Protocol II to the 1980 Convention Weapons Convention, supra note 16, Article 3(8) (c).

336 A similar provision is included in Geneva Protocol II, supra note 11, at Article 15.

337 In its recently completed study, of the customary law status of the provisions of humanitarian law including those contained in Geneva Protocols I and II, the ICRC concludes that this provision is indeed a norm of international law but only in so far as those limits imposed are “required by international humanitarian law” and not simply by Geneva Protocol I. The ICRC customary study includes at Rule 12 the provisions set forth in Article 51 (4). See Henkaerts and Doswald-Beck, supra note 14, at volume I, chapter 3, p. 41.

338 See Jordan, and United States, “International Law Providing Protection to the Environment in Times of Armed Conflict, annexed to Letter dated 28 September 1992 to the Chairman of the Sixth Committee of the UN General Assembly,” UN Doc.A/C.6/47/3 (28 September 1992), para. 1 (g).Google Scholar

339 See Shipman, T., “British Victory in Basra Tank Battle,” Sandy Times, No. 29, 1 April 2003, at 6.Google Scholar

340 See Norton-Taylor, R. and McCarthy, R., “Scots Guards Destroy Fourteen Iraqi Tanks in Confrontation,” The Guardian, 28 March 2003, at 6.Google Scholar

341 “Depleted Uranium Munitions,” supra note 57.

342 United Nations Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, “International Peace and Security as an Essential Condition for the Enjoyment of Human Rights, Above All, the Right to Life,” Res. 1996/16, 1996, UNCHR OR, 34th Mtg, UN Doc. E/ CN.4/Sub.2/1996/L. 11/Add.3 (29 August 1996). The sub-commission also includes within this designation nuclear weapons, chemical weapons, fuel-air bombs, napalm, biological weaponry, and cluster bombs.

343 Post-War Environment in Iraq, supra note 2.

344 General Assembly Official Records, First Committee, 56th session, Doc. A/C. 1/56/PV.23 (5 November 2001).

345 General Assembly Official Records, First Committee, 57th session, Doc. A/C. 1/57/PV.21 (25 October 2002).

346 Iraq reported to the UN General Assembly meeting of 2002 that recently the Standing Committee on Human Rights of the League of Arab States had adopted a decision entitled “Human Rights and Weapons of Mass Destruction, Including Depleted Uranium.” See General Assembly Official Records, First Committee, 57th session, Doc. A/C.1/57/PV. 16 (18 October 2002).

347 Both in 2002 and 2003, see “Unexploded Ordnance and Depleted Uranium Ammunition,” supra note 149; and “No DU Weapons Risk, Say Experts,” Newsnight, 6 March 2001.

348 “Facts on Consequences of the Use of Depleted Uranium in the NATO Aggression Against the Federal Republic of Yugoslavia,” letter dated 15 September 2000 from the chargé d’affaires of the Permanent Mission of Yugoslavia to the United Nations Addressed to the Secretary-General, Doc. A/55/398-S/2000/ 883 (20 September 2000).

349 In its case before the International Court of Justice (ICJ), Yugoslavia attempted to argue that the NATO bombing of 1999 breached numerous international legal obligations, particularly citing the use of depleted uranium weapons and international law designed to protect the environment, prohibit use of certain weapons, and protect against the physical destruction of a national group (genocide). See Legality of the Use of Force, (Yugoslavia v. Belgium), (Yugoslavia v. Canada), (Yugoslaviav. France), (Yugoslaviav. Germany), (Yugoslaviav. Italy), (Yugoslavia v. Netherlands), (Yugoslavia v. Portugal), (Yugoslavia v. United Kingdom), (Yugoslavia v. Spain), (Yugoslavia v. United Slates of America), 1999, nos. 104–14, (1999) 38 I.L.M. 950, available at <http://www.icj-cij.org/icjwww/idecisions.htm> (19 December 2004). The cases against the United States and Spain were dismissed earlier due to lack of jurisdiction. In December 2004, the remaining cases were unanimously dismissed due to lack of jurisdiction. See the judgment of 15 December 2004. See also Burton, J., “Depleted Morality: Yugoslavia v. Ten NATO Members and Depleted Uranium” (2000) 19 Wis. Int’l L.J. 17.Google Scholar

350 Germany considered the provisions an “important new contribution to the protection of the natural environment in times of international armed conflict” and joined in the consensus on this basis. See “Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts,” Geneva, 1974–7, Doc. CDDH/SR.39 (25 May 1977), O.R. vol. 6, at 115 [emphasis added] [“International Humanitarian Law Applicable in Armed Conflicts”]. Similarly, other states considered the purpose of the provisions to be “to fill a gap in international humanitarian law.” See N. van Huong, Democratic Republic of Viet-Nam, Official Records of the Diplomatic Conference, Doc. CDDH/III/SR.26 (27 February 1975), vol.14, at 238, para. 15; and, as a consequence, the Third (drafting) Committee concluded that it was “the first occasion on which an attempt has been made to provide in express terms for the protection of the environment in time of war.” See Report to Committee III on the Work of the Working Group Submitted by the Rapporteur, Official Records of the Diplomatic Conference, Doc. CDDH/III/275 3 February-18 April 1975, vol. XV at 358 [emphasis added].

351 Henkaerts and Doswald-Beck, supra note 14 at volume I, chapter 14, p. 147, recognizes the customary status of the very basic notion that methods and means of warfare must be employed with due regard to the protection and preservation of the environment. This is included as Rule 44.

352 See generally Westing, A. H., Ecological Consequences of the Second Indochina War (Stockholm: Almqvist and Wiskell International, 1976).Google Scholar

353 Although similar provisions to those in Geneva Protocol I were envisaged for inclusion within Geneva Protocol II, these were included within the "Pakistan proposal" to reduce the protocol with the aim of ensuring that acceptance of the final text was as broad as possible. See Bothe, Partsch, and Solf, supra note 246 at 606.

354 For an in-depth analysis, see Hulme, K., War Torn Environment: Interpreting the Legal Threshold (Leiden: Martinus Nijhoff, 2005).Google Scholar

355 At Rule 45, the ICRC in its customary law study proposes that the principle established in Article 35(3) is a norm of customary international law, applicable in both international and internal armed conflict. See Henkaerts and Doswald-Beck, supra note 14 at volume I, chapter 14, p. 151. The ICRC also suggests that the United States may be a persistent objector to this rule. For the concept of persistent objector, see Anglo-Norwegian Fisheries Case (UK v. Norway), (1951) I.C.J. Rep. 139, and Asylum Case. (Colombia v. Peru), (1950) I.C.J. Rep. 266.

356 Some delegates at the negotiating conference saw no need for two separate provisions. Note the opinion of Mr. Eaton, the UK delegate, in “International Humanitarian Law Applicable in Armed Conflicts,” supra note 350 at vol. 14 at para. 46.

357 Geneva Protocol I, supra note 11, Article 35(2), states the basic and customary prohibition on the infliction of unnecessary suffering and superfluous injury.

358 This distinction was drawn in committee discussions. See “Biotope,” Report to the Chairman of the Group Official Records of the Diplomatic Conference, Doc. CDDH/III/GT/35 (11 March 1975) at para. 11.

359 In relation to the aspects of military advantage, many delegates made reference to this definition, for the comments by Australia and New Zealand, see Henkaerts and Doswald-Beck, supra note 14 at volume II, chapter 4, section C, para. 161.

360 “International Humanitarian Law Applicable in Armed Conflicts,” Comments by the German delegate, Plenary Meeting, Doc. CDDH/SR.39 (25 May 1977), at vol. 6, 113, annex.

361 Environmental Modification Convention, supra note 170.

362 See generally Fauteux, P., “The Gulf War, The ENMOD Convention and the Review Conference” (1992) 18 UNID IR Newsletter 6.Google Scholar

363 To give some indication of scale, Greater London is 1,620 square kilometres.

364 “Several” for the scale of harm generally indicates more than two but is not a precise quantity.

365 “International Humanitarian Law Applicable in Armed Conflicts,” supra note 350 at para. 27.

366 See International and Operational Law Department, Army, U. S., Operational Law Handbook (1995),Google Scholar reproduced in part in Schmitt, M. N., “Green War: An Assessment of the Environmental Law of International Armed Conflict” (1997) 22 Yale J. Int’l L. 1 at 71.Google Scholar

367 Other states have also adopted the terminology of the provision in their military manuals, domestic legislation, and other statements, including Belgium, the United Kingdom, Azerbaijan, and Kenya, at a date before becoming a party to the treaty. In its report to the ICRC on its practice, the non-party Israel also refers to the threshold of harm established in Geneva Protocol I. See Henkaerts and Doswald-Beck, supra note 14 at volume II, chapter 14, section C. paras. 166, 175, 184, 191, and 241.

368 [Emphasis added]. “International Humanitarian Law Applicable in Armed Conflicts,” supra note 350 at para. 27.

369 The committee’s reference here to the “civilian” population is too narrow. See Sandoz, Y., Swinarski, C., and Zimmermann, B., eds., International Committee of the Red Cross Commentary on the Additional Protocols of 8 June, 19 77, to the Geneva Conventions of 12 August, 1949: In Collaboration with Jean Pictet (Geneva: Martinus Nijhoff, 1987) at 663–64.Google Scholar

370 por example, air pollution is defined as “deleterious effects as to endanger human health, harm living resources and ecosystems and material property and impair or interfere with amenities and other legitimate uses of the environment,” see Article 1 (a) of the 1979 Convention on Long-Range Transboundary Air Pollution, 13 November 1979, (1979) 18 I.L.M. 1442 (entered into force 16 March 1983) [emphasis added]. Arguably, this is still the most common approach to environmental protection taken today.

371 The United States has not ratified the Geneva Protocols. However, it includes reference to the provision in its army handbook. See International and Operational Law Department, Army, US, Operational Law Handbook (1995),Google Scholar reproduced in part in Schmitt, supra note 366 at 71.

372 Note the environmental law principle of inter-generational equity. Principle 3 of the 1992 Rio Declaration on Environment and Development, 13 June 1992, (1992) 31 I.L.M. 874 (1992) [Rio Declaration], accordingly directs that the right to development is to be fulfilled “so as to equitably meet developmental and environmental needs of present and future generations.” The notion has also been recognized in Article 3(1) of the 1992 United Nations Framework Convention on Climate Change, (1992) 31 I.L.M. 849 (opened for signature g May igg2, in force 24 March igg4) [UNFCCC].

373 Report of Committee III, Second Session, in “International Humanitarian Law Applicable in Armed Conflicts,” supra note 350 at para. 82.

374 Sandoz, Swinarski, and Zimmermann, eds., supra note 369 at 663.

375 Depleted Uranium in Kosovo, supra note 28 at 34.

376 Depkted Uranium in Bosnia, supra note 54 at 186.

377 Ibid, at 186-7 and 31.

378 This involved a tank repair facility. Ibid, at 36 and 71.

379 Ibid, at 36.

380 Ibid.

381 Ibid, at 35.

382 Ibid, at 186 and 280.

383 Ibid, at 186.

384 See the “Facts on Consequences of the Use of Depleted Uranium,” supra note 348 at para. 8.

385 Ibid.

386 “Lord Parry’s ’Starred’ Question,” supra note 145 at para. 40.

387 Depleted Uranium in Bosnia, supra note 54 at 30.

388 Depleted Uranium in Serbia, supra note 61 at 30.

389 Ibid, at 36.

390 Ibid.

391 Depleted Uranium in Bosnia, supra note 54 at 34. Note that the European Committee on Radiation Risk (ECRR) has recently criticized this “safe” level of 1 mSv and has suggested a preferred level of 0.1 mSv per year. Busby et al., eds., supra note 80.

392 “UNEP Recommends Precautionary Action,” supra note 124.

393 Depleted Uranium in Bosnia, supra note 54 at 30.

394 Ibid, at 32.

395 See Pellmar, T. C., Keyser, D. O., Emery, C., and Hogan, J. B., “Electrophysiological Changes in Hippocampal Slices Isolated from Rats Embedded with Depleted Uranium Fragments” (1999) 20(5) Neurotoxicology 785 at 790.Google ScholarPubMed

396 Miller, A. C., Stewart, M., Brooks, K., Shi, L. , and Page, N., “Depleted Uranium-Catalyzed Oxidative DNA Damage: Absence of Significant Alpha Particle Decay” (2002) 91 J. Inorganic Biochemistry 246 at 251.CrossRefGoogle ScholarPubMed

397 “Review of the Hazards,” supra note 92.

398 See McDiarmid et al., supra note 104.

399 Ibid, at 289.

400 Ibid, at 287-88.

401 Ibid. at 291.

402 Domingo, J. L., “Reproductive and Developmental Toxicity of Natural and Depleted Uranium: A Review” (2001) 15 Reproductive Toxicology 603 at 603.CrossRefGoogle ScholarPubMed

403 See WHO, Department of Protection of the Human Environment, Depleted Uranium: Sources, Exposure and Health Effects, Doc. WHO/SDE/PHE/01.1 (Geneva: WHO, April 2001), available at <http://www.who.int/ionizing_radiation/pub_meet/ir_pubs/en/> (3 July 2001)); and “Health Hazards of Depleted Uranium Munitions,” supra note 109.

404 See generally Schmitt, supra note 366.

405 Lieber’s Code and the Law of War, supra note 155 [emphasis added].

406 Parks, W. Hays, “Air War and the Law of War” (1990) 32 A.F.L. Rev. 1.Google Scholar

407 Geneva Protocol I, supra note 11 [emphasis added]. See Bothe, Partsch, and Solf, supra note 246 at 309, where Article 51 (5) (b) is viewed as a “concrete codification of the principle of proportionality.” The United States view that the original ICRC provision regarding proportionality was a codification of existing international law, in Fenrick, W. J., “The Rule of Proportionality and Protocol I in Conventional Warfare” 98 (1982) Mil. L. Rev. 91 at 104.Google Scholar See also Article 57 (2) (a) (iii) and (b) of Geneva Protocol I; and Henkaerts and Doswald-Beck, supra note 14 at volume I, chapter 4, p. 46, where the ICRC concludes that state practice establishes the rule of proportionality (Rule 14) as a customary norm applicable in international and non-international armed conflict.

408 An indiscriminate attack launched with the knowledge of disproportionate effects is also classified as a grave breach of the Geneva Conventions by Article 85(3) (b) of Geneva Protocol I, supra note 11.

409 See the statements made on ratification by Algeria, Australia, Austria, Belgium, Canada, Egypt, Germany, Ireland, Italy, the Netherlands, New Zealand, Spain, and the United Kingdom, restated in the ICRC customary study, Henkaerts and Doswald-Beck, supra note 14 at volume II, chapter 4, paras. 193–205.

410 Fleck, D., ed., The Handbook of Humanitarian Taw in Armed Conflicts (Oxford: Oxford University Press, 1995) at para. 456.Google Scholar

411 Schmitt, M., “The Principle of Discrimination in Twenty-First Century Warfare” 2 (1999) Yale H.R. & Dev.L.J. 143 at 151.Google Scholar See also Fenrick, W., “The Rule of Proportionality and Protocol I in Conventional Warfare” 98 (1982) Mil. L. Rev. 91 at 95.Google Scholar

412 International Criminal Tribunal for the Former Yugoslavia (ICTY), “Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia,” 8 June 2000, (2000) 39 I.L.M. 1 257 at para. 50.

413 Schmitt, supra note 411 at 157.

414 Ibid. at 158.

415 Fenrick, supra note 411 at 111.

416 ICTY, supra note 412 at para. 22.

417 Sandoz, Swinarski, and Zimmermann, eds., supra note 369 at 326 and 637; and Bothe, Partsch, and Solf, supra note 246 at 365.

418 Fleck refers to the “wider military campaign of which the attack forms part.” Fleck, ed., supra note 410 at para. 456, which is based on statements made by a number of states during the diplomatic conference. In their instruments of ratification, Belgium, Canada, France, Germany, Italy, the Netherlands, Spain, and the United Kingdom refer to the “military advantage that can be expected from the attack as a whole and not only of isolated or specific parts of the attack.” See Henkaerts and Doswald-Beck, supra note 14 at volume II, chapter 4, para. 161.

419 Schmitt, supra note 411 at 157.

420 Ibid. at 170.

421 Ibid.

422 Fenrick, for example, addresses the issue of the scale on which the military advantage is to be weighed — both temporally and geographically. He suggests that these are unclear. See Fenrick, supra note 411 at 126.

425 “What is the standard of measurement in time or space?” This question was among those raised but left unanswered in the report of the ICTY, supra note 412 at para. 49.

424 C. Greenwood, “Legal Issues Regarding Explosive Remnants of War,” Group of Government Experts of States Parties to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, Doc. CCW/GGE/I/WP.10 (23 May 2002) at 8.

425 Ibid.

426 The United Kingdom, among others, included such a declaration with its instrument of ratification of Geneva Protocol I, see the United Kingdom Ministry of Defence, supra note 246 at 87.

427 ICRC, “Existing Principles and Rules of International Humanitarian Law Applicable to Munitions that may become Explosive Remnants of War,” Group of Government Experts of States Parties to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, Doc. CCW/GGE/XI/WG.1/WP.7 (28 July 2005) at 4.

428 Bothe, Partsch, and Solf, supra note 246 at 308.

429 Henkaerts and Doswald-Beck, supra note 14 at volume I, chapter 3, p. 43.

430 Ibid. at 43 [emphasis added].

431 The draft rules were a result of ICRC efforts on texts designed to “protect civilian populations efficiently from the dangers of atomic, chemical and bacteriological warfare.” The draft rules were submitted to governments but made little progress, although many of the draft rules were later adopted in the 1977 Geneva Protocols. “1956 ICRC New Delhi Draft Rules for the Limitation of the Dangers incurred by the Civilian Population in Time of War,” available at <http://www.icrc.org/ihl.nsf/WebList?ReadForm&id=420&t=art> (10 October 2005).

432 Ibid. [emphasis added].

433 de Mulinen, F., Handbook on the Law of War for Armed Forces (Geneva: ICRC, 1987) at 199,Google Scholar para. 912(c), reprinted in Henkaerts and Doswald-Beck, supra note 14 at volume II, chapter 3, section B, para. 279 [emphasis added].

434 US, Air Force Pamphlet (1976), para. 6–3 (c), reprinted in Henkaerts and Doswald-Beck, supra note 14, at volume II, chapter 3, section B, para. 258.

435 Ibid. [emphasis added]. See also the dissenting opinion of Judge Higgins in Nuclear Weapons, supra note 174 at para. 18.

436 Geneva Protocol I, supra note 11.

437 “Depleted Uranium Munitions,” supra note 57 at 5.

438 Clearly barrage fire directed at an area of mixed military and civilian persons and objects would breach Article 51(4) (a) of Geneva Protocol I, supra note 11, as recognized by Fleck, ed., supra note 410 at para. 455.

439 See Bothe, Partsch, and Solf, supra note 246 at 310, where the authors suggest that since the two sides of the equation cannot easily be quantified, only an obvious imbalance will be considered “disproportionate” or “excessive.”

440 For example, see Principle 15 of the 1992 Rio Declaration, supra note 372; Article 3(3) and the preamble to the 1992 UNFCCC, supranote 372; and Article 2(2) (a) of the 1992 Paris Convention for the Protection of the Marine Environment of the North-East Atlantic, 22 September 1992, (1993) 32 I.L.M. 1068 (entered into force 25 March 1998).

441 Hulme, supra note 354 at Chapter 4.

442 Geneva Protocol I, supra note 11.

443 See Protocol III to the 1980 Conventional Weapons Convention, supra note 16, Article 2(2).

444 Ibid., Article 2(3).

445 Hulme, K., “Of Questionable Legality: The Military Use of Cluster Bombs in Iraq, 2003” (2004) 42 Can. Y.B. Int’l L. 143 Google Scholar

446 Human Rights Watch, Off Target: The Conduct of the War and Civilian Casualties in Iraq (New York: Human Rights Watch, 2003) at 94.

447 “Depleted Uranium and the Environment,” United Kingdom Ministry of Defence, available at <http://www.mod.uk/DefenceInternet/AboutDefence/WhatWeDo/HealthandSafety/Depleted+Uranium/DepletedUraniumAnd TheEnvironment.htm> (15 August 2006).

448 Amended Protocol II on Mines to the 1980 Conventional Weapons Convention, supra note 16, Articles 10 and 11; see also Articles 5 and 6 of the 1997 Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, 3 December 1997, (1997) 36 I.L.M. 1507 (entered into force 1 March 1999).

449 Hulme, supra note 354 at Case 6, pp. 274–75.

450 Protocol V on Explosive Remnants of War, supra note 16. In August 2006, the protocol had only twenty-three state parties — a list that does not include the United Kingdom, the United States, France, Russia, or China.

451 “Depleted Uranium and the Environment,” supra note 447. Serbia has also recently announced that it is carrying out clean up of depeted uranium remnants following the 1999 use by NATO in Kosovo. According to local news reports, “nuclear experts and clean-up teams removed 3,468 cubic meters of contaminated soil from the Borovac site, 280 kilometers south of Belgrade, where 44 depleted uranium shells exploded.” See “Serbia Cleans Up Depleted Uranian From 1999 NATO Bombing,” Serbianna.com, 12 December 2005, available at <http://www.serbianna.com/news/2005/02239.html> (14 December 2004).