Cathy Garger
Cont'd - Why We Do NOT Need A "Ban" On DU
Tue May 29, 2007 17:24

Cathy Garger

The panelist focused on the issue of proportionality - an important principle of humanitarian law. This proportionality analysis (and the related "military necessary" analysis) would only come into play if DU weaponry was legal but was alleged to have been used in a way that violates either proportionality or military necessity. As I agree with the UN Sub-Commission that DU is illegal, then these two doctrines are not invoked regarding military use of DU.

1 It is important to set out that the DU work at the UN has focused on DU weaponry, although other DU issues have been presented. For example, the Commission has an existing procedure on toxics that we have utilized to address DU in general as well as in the context of weaponry.

2. Customary international law, which includes: The Hague law (governing military operations); and Geneva law (governing protected parties in time of war) is binding on all countries. The United States Supreme Court has consistently upheld the binding nature of customary law, including customary humanitarian law. All of international law, including the UN Charter and Statute of the International Court of Justice, reflects the binding nature of customary law.

3. In 1996 the International Court of Justice, in the Nuclear case, finds that all weapons must be evaluated under the criteria of humanitarian law but does not set out what that criteria is. I wrote my Memorandum to describe that criteria.

4. In my view this is the key point of divergence from the other presenter on the topic of DU and the law at the CADU conference. I view that the "science" of DU, as presented by, inter alia, Dr. Horst Gunther and Dr. Rosalie Bertel, is sufficient to show the "illegality" of DU under existing norms. The other presenter does not.

5. The United States tries to argue that weapons may only be discussed in the "disarmament" forums - where, of course there is much less direct NGO participation. Thus the US tries to keep the focus on "treaty-drafting" rather than on confirmation that existing law may condemn a weapon.

6. The Hague Convention of 1907, 8th preambl. para. The "Martens" clause and is repeated in the Geneva Conventions of 1949 and the Protocols Additional to the Geneva Conventions of 1977. The US is a party to the Hague Conventions and the Geneva Conventions of 1949. The United States Supreme Court, in a 1942 case (Ex Parte Quirin), ruled that this clause is US law. This principle only applies to humanitarian (armed conflict) law, not the law of human rights although the law of human rights is evolving in this direction.

7. Note also a feature of customary international law: the doctrine of the "persistent objection". If a provision is not yet customary law but is still evolving into customary law, a State may object to that law. However, the objection must be persistent, which means that at every relevant time that the issue is raised (and UN sessions on the subject are clearly "relevant times") the State MUST SPEAK UP. Silence is presumed to be acquiescence to the norm. Thus, if I make a speech about both the weapons "test" I derived and the inherent illegality of DU, the absence of a counter statement reinforces the view that I am correct.

And of course I consider that the issue is jus cogens so it is too late to object. No State, including the US, has taken the floor to challenge either the Sub-Commission or the NGOs on the existing illegality of DU weaponry. Note carefully the language of Sub-Commission resolution 1996/16 and the governments' replies in U.N. Doc. E/CN.4/Sub.2/1997/27 and Add.1. The responding governments clearly support aspects of the four part test as well as the application of that test to the listed weapons. While small in number, these states represent wide geographical and political diversity, thus supporting our view. The more we bring it up, the more chance for other governments to support our view. And more are speaking up in the "oral" debates.

8. The Secretary-General has incorporated much of my Memorandum in his report (U.N. Doc. E/CN.4/Sub.2/1997/27 and Adds. 1 & 2) included in these materials. Other parts of my Memorandum are published by the UN as well (for example U.N. Doc.
E/CN.4/Sub.2/1997/NGO/19). No one has risen to challenge this test or to propose a different one. Comments by governments, Sub-Commission members, other NGOs and the like can be viewed in conformity with this test. Once again, note the language of the two Resolutions with wording such as "unnecessary suffering" (the "humaneness" test); "consequential and cumulative effects" (the "temporal" and "environmental" tests); "indiscriminate" (the "geographical" test).

9 Note that the Sub-Commission resolution also addresses cluster bombs.

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Cathy Garger



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