Legal Status in Weapons
In 1996 the International Court of Justice (ICJ) gave an advisory opinion on the "legality of the threat or use of nuclear weapons". This made it clear, in paragraphs 54, 55 and 56, that international law on poisonous weapons—the Second Hague Declaration of 29 July 1899, Hague Convention IV of 18 October 1907 and the Geneva Protocol of 17 June 1925—did not cover nuclear weapons, because their prime or exclusive use was not to poison or asphyxiate. This ICJ opinion was about nuclear weapons, but the sentence "The terms have been understood, in the practice of States, in their ordinary sense as covering weapons whose prime, or even exclusive, effect is to poison or asphyxiate," also removes depleted uranium weaponry from coverage by the same treaties as their primary use is not to poison or asphyxiate, but to destroy materiel and kill soldiers through kinetic energy.
The Sub-Commission on Prevention of Discrimination and Protection of Minorities of the United Nations Human Rights Commission, passed two motions — the first in 1996 and the second in 1997. They listed weapons of mass destruction, or weapons with indiscriminate effect, or of a nature to cause superfluous injury or unnecessary suffering and urged all states to curb the production and the spread of such weapons. Included in the list was weaponry containing depleted uranium. The committee authorized a working paper, in the context of human rights and humanitarian norms, of the weapons.
The requested UN working paper was delivered in 2002 by Y.K.J. Yeung Sik Yuen in accordance with Sub-Commission on the Promotion and Protection of Human Rights resolution 2001/36. He argues that the use of DU in weapons, along with the other weapons listed by the Sub‑Commission, may breach one or more of the following treaties: the Universal Declaration of Human Rights, the Charter of the United Nations, the Genocide Convention, the United Nations Convention Against Torture, the Geneva Conventions including Protocol I, the Convention on Conventional Weapons of 1980, and the Chemical Weapons Convention. Yeung Sik Yuen writes in Paragraph 133 under the title "Legal compliance of weapons containing DU as a new weapon":
Annex II to the Convention on the Physical Protection of Nuclear Material 1980 (which became operative on 8 February 1997) classifies DU as a category II nuclear material. Storage and transport rules are set down for that category which indicates that DU is considered sufficiently "hot" and dangerous to warrant these protections. But since weapons containing DU are relatively new weapons no treaty exists yet to regulate, limit or prohibit its use. The legality or illegality of DU weapons must therefore be tested by recourse to the general rules governing the use of weapons under humanitarian and human rights law which have already been analysed in Part I of this paper, and more particularly at paragraph 35 which states that parties to Protocol I to the Geneva Conventions of 1949 have an obligation to ascertain that new weapons do not violate the laws and customs of war or any other international law. As mentioned, the International Court of Justice considers this rule binding customary humanitarian law.
Louise Arbour, chief prosecutor for the International Criminal Tribunal for the Former Yugoslavia led a committee of staff lawyers to investigate possible treaty prohibitions against the use of DU in weapons. Their findings were that:
There is no specific treaty ban on the use of DU projectiles. There is a developing scientific debate and concern expressed regarding the impact of the use of such projectiles and it is possible that, in future, there will be a consensus view in international legal circles that use of such projectiles violate general principles of the law applicable to use of weapons in armed conflict. No such consensus exists at present.
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