Although no sole treaty explicitly banning the use of DU is yet in force, it is clear that using DU runs counter to the basic rules and principles enshrined in written and customary International Humanitarian Law.
Arms control law
International Humanitarian Law (IHL)
Main legal arguments
Customary International Humanitarian Law
Resolutions
Domestic developments
The Process
The next logical step
Arms control law
There is still no explicit rule, or treaty, outlawing DU weapons as is the case, for example, with biological and chemical weapons. Furthermore, DU weapons cannot be (easily) subsumed under respective treaties, including the 1925 Geneva Gas Protocol or the Certain Conventional Weapons Convention’s (CCW) legal regime (protocols).
International Humanitarian Law (IHL)
Nevertheless, IHL fully applies to the use of DU weapons and their effects. In such a vein, United Nations General Assembly Resolution 62/30 is guided by “the rules of humanitarian international law” and taking into consideration “the potential harmful effects of the use of armaments and ammunitions containing depleted uranium on human health and the environment”.
Main legal arguments(IHL)
Under existing IHL, these can be derived from:
a) The prohibition of indiscriminate attacks (i.a. of “those which employ a method or means of combat the effects of which cannot be limited as required”, Act. 51 (4) c, Add. Protocol I to the Geneva Conventions)
b) The prohibition to cause superfluous injury or unnecessary suffering
c) The principle of precaution
d) The principle of proportionality.
Customary International Humanitarian Law
The International Committee of the Red Cross (ICRC) identified as one of the rules (no. 44):
“Methods and means of warfare must be employed with due regard to the protection and preservation of the natural environment. In the conduct of military operations, all feasible precautions must be taken to avoid, and in any event to minimize, incidental damage to the environment. Lack of scientific certainty as to the effects on the environment of certain military operations does not absolve a party to the conflict from taking such precautions”.
Resolutions
Although non-binding; resolutions adopted by intergovernmental bodies may hint at the convictions of States and contribute to (customary) law developments. Thus, the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, in two resolutions (1996/16 and 1997/36), concluded that weapons containing depleted uranium may be classed as weapons "with indiscriminate effects" being concerned about "repeated reports of the long-term consequences of the use of such weapons upon human life and health and upon the environment".
In an overall assessment, the European Parliament, in a resolution adopted in May 2008, states that: “the use of depleted uranium in warfare runs counter to the basic rules and principles enshrined in written and customary international, humanitarian and environmental law”.
Domestic developments
Often overlooked, domestic laws are of decisive impact on developing and shaping international law. There is a wide range of up-dating possible: from the Belgian anti-DU legislation, through various compensation cases (as in Italy) to military manuals and regulations, like US Army Regulation 700-48 “Management of Equipment contaminated with depleted Uranium”.
The Process
Based on risks associated with the use of DU weapons, as well as on precautionary obligations, States should refrain from using uranium weapons. During a “moratorium phase” more scientific studies and a treaty process should be launched, leading to a ban on DU weapons. A Draft Convention text can be found at http://www.bandepleteduranium.org/en/i/255.html
The next logical step
ICBUW's DU Draft Convention and the Convention on Cluster Munitions reveal the same basic structure, which is:
Definitions
Prohibition of use, production, stockpiling
Destruction and clearance
Victim assistance
International cooperation.
Arriving at a ban or arms control treaty, would finally mean to clarify all legal and factual uncertainties and – as the next logical step after Cluster Munitions – to get rid of a most inhumane weapon.