Written and collected by Karen Parker, J.D.

for

Campaign Against Depleted Uranium (CADU) and International Educational Development/Humanitarian Law Project (IED/HLP) with partial support from Association of Humanitarian Lawyers

February 2000

International Educational Development/
Humanitarian Law Project
8124 West Third Street Suite 105
Los Angeles, California 90048
Phone: 310.863.6316 Fax: 310.836.7347
E-mail: ied@igc.org or hlp@igc.org

International Educational Development/Humanitarian Law Project (IED/HLP) is a non-sectarian, non-governmental organization granted consultative status at the United Nations by Dag Hammarskjöld. In 1989 IED, originally founded by Jesuit brothers to assist hospitals and schools in developing countries, merged with Los Angeles-based HLP and the combined organization now advocates and promotes world-wide compliance with humanitarian and human rights law.

WHY WE TOOK DU TO THE UN: EXPLANATION AND STRATEGY
INTRODUCTION

WHY IS DU WEAPONRY ALREADY ILLEGAL?

WHAT ARE THE COMMISSION AND SUB-COMMISSION?
    I. THE UNITED NATIONS COMMISSION ON HUMAN RIGHTS
    II. THE UNITED NATIONS SUB-COMMISSION ON PROMOTION AND PROTECTION OF HUMAN RIGHTS

CHRONOLOGY OF DU AT THE UNITED NATIONS

WHAT CAN THE COMMISSION AND SUB-COMMISSION DO ON THE DU ISSUE (THE "WHY BOTHER" QUESTION)

HOW DOES THE PROCESS AT THE UNITED NATIONS WORK?

WHAT ABOUT THE "TOXICS" ISSUE AT THE COMMISSION?

IS IT GOOD OR BAD THAT THE RAPPORTEUR HAS NOT PRESENTED ANYTHING YET?

WHAT SHOULD THE DU COMMUNITY DO TO FURTHER THE UN WORK?

WHY NOT WORK ON A DU-BANNING TREATY ANYWAY?

UN DOCUMENTS

1. Sub-Commission Resolution 1996/36.
States conviction that the use of the listed weapons is "incompatible" with humanitarian law and human rights. Asks Secretary-General to compile information regarding the listed weapons, including DU weaponry, in light of human rights and humanitarian law.

2. U.N. Doc. E/CN.4/Sub.2/1997/SR.34.
Summary record of the Sub-Commission debate on Resolution 1996/36 (Draft resolution contained in E/CN.4/Sub.2/1996/L.18).

3. U.N. Doc. E/CN.4/Sub.2/1997/27 and Add.1.
The Report of the Secretary-General requested in Sub-Commission Resolution 1996/36. Includes large portion of IED/HLP Memorandum and reply by Int'Indian Treaty Council.

4. Sub-Commission Resolution 1997/36.
Repeats legal language of Resolution 1996/36. Appoints Mme Clemencia Forero Ucros to prepare working paper

5. Commission Resolution 1998/12.
Reappoints the Special Rapporteur on Toxics.

6. U.N. Doc. E/CN.4/Sub.2/1998/23.
Note by Secretariat stating rapporteur unable to prepare working paper.

7. Sub-Commission Decision 1998/111.
Carries over working paper.

IED/HLP DOCUMENTS

1. Oral statement, Commission 1996, Agenda item 20.
(U.N. Doc. E/CN.4/1996/SR.54).

2. Oral statement, Sub-Commission 1996, Agenda item 16(b).
(U.N. Doc. E/CN.4/Sub.2/1996/SR.14).

3. Oral statement, Commission 1997, Agenda item 16.
(U.N. Doc. E/CN.4/1997/SR.23).

4. Written statement, Commission 1997.
(U.N. Doc. E/CN.4/1997/NGO/49).

5. Memorandum on Weapons and the Laws and Customs of War
(by Karen Parker, submitted by IED/HLP 1997; excerpted in U.N. Doc. E/CN.4/Sub.2/1997/27).

6. Oral statement, Sub-Commission 1997, Agenda item 4.
(U.N. Doc. E/CN.4/Sub.2/1997/SR.11).

7. Oral statement, Sub-Commission 1997, Agenda item 7.
(U.N. Doc. E/CN.4/Sub.2/1997/SR.16).

8. Written statement, Sub-Commission 1997.
(U.N. Doc. E/CN.4/Sub.2/1997/NGO/19).

9. Oral statement, Commission 1998, Agenda item 23.
(U.N. Doc. E/CN.4/1998/SR.19).

10. Oral Statement, Sub-Commission 1998, Agenda item 4.
(U.N. Doc. E/CN.4/Sub.2/1998/SR.15).

11. Oral Statement, Sub-Commission 1998, Agenda item 12.
(U.N. Doc. E/CN.4/Sub.2/1998/SR.31).

12. Written statement, Sub-Commission 1998.
(U.N. Doc. E/CN.4/Sub.2/1998/NGO/25).

13. Oral statement, Commission 1999, Agenda item 10.
(U.N. Doc. E/CN.4/1999/SR.24).

14. Written statement, Commission 1999.
(UN Doc. E/CN.4/1999/NGO/119).

15. Oral statement, Sub-Commission 1999, Agenda item 4.
(U.N. Doc. E/CN.4/Sub.2/1999/SR.[ ].

16. Oral statement, Sub-Commission 1999, Agenda item 12. (Joint statement with International Peace Bureau).
(U.N. Doc. E/CN.4/Sub.2/1999/SR.[ ].

Reports circulated at the sessions by other groups working with IED/HLP.

1. International Commission of Inquiry on Economic Sanctions, report to 1996 Sub-Commission prepared by Dr. Beatrice Boctor.
2. D. Robicheau and P. Winkler, "Uranium Shelling Linked to Explosion of Child Cancer in Iraq, Cancer Deaths of UK Veterans," report to 1998 Commission.
3. Alaska Community Action on Toxics, Press release of March 17, 1998, submitted to 1998 Commission.
3. International Peace Bureau, "Written Report: Depleted Uranium Weapons", report to the 1999 Sub-Commission prepared by Catherine Euler.
4. Flyer from 1999 NGO forum.

NOTE: There has also been brief mention of DU in statements of the government of Iraq and several other countries. DU has also been part of the debates at the Sub-Commission and I have only included the debate relating to the first resolution in 1996. The summary records of both the Commission and Sub-Commission are available on microfiche at UN repository libraries and most university and law school libraries. The summary records of the Commission are available on the website of the United Nations High Commissioner for Human Rights. Additionally, several other NGOs have made short statements. These statements reflect growing concern about DU but do not add anything new to the information or law so they have not been included here. Several of my copies of these statements are in languages other than English, and in any case would need translation. Finally, the various groups that have come under the auspices of IED/HLP or the International Peace Bureau have circulated other documents that have not been included here as these documents already circulate widely in the DU community. Many of them have been submitted by IED/HLP to the UN Secretariat and to Mme Forero.

INTRODUCTION

This document as a whole is a compilation of materials on the depleted uranium (DU) initiative at the United Nations human rights forums and an explanation and strategy analysis of this initiative. This first part is the "why we did it" part.

The DU initiative at the United Nations began in 1996 when my organization, International Educational Development/Humanitarian Law Project, first heard of DU and then first presented DU there. From the beginning of our work we have had two main positions: (1) that DU weaponry is already illegal under existing human rights and humanitarian (armed conflict) law; and (2) the United Nations human rights forums are appropriate places to address this illegality. The fact that the UN has taken up this issue, and as soon as we presented it, supports our positions.

Our first presentations on DU were at the March/April 1996 session of the United Nations Commission on Human Rights (the Commission) and focused on the use of DU weaponry in the Gulf War. We continued this emphasis at the August 1996 session of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, now renamed the United Nations Sub-Commission on Promotion and Protection of Human Rights (the Sub-Commission). At that session, members of the Sub-Commission were highly moved by our presentation on DU weaponry and as a result a member introduced a resolution setting up a procedure to address DU weaponry (and other "bad" weapons) in light of existing norms -- exactly what we wanted. Note that the issue at the Sub-Commission is limited to weaponry and is not a general DU mandate.

Since that time, this initiative has gone forward at the Sub-Commission -- although with some delays as will be explained later in this document. At the same time the Commission has an existing procedure on toxics. We have also utilized that procedure to address DU -- and not only in the context of weapons.

Prior to the 1996 Commission session our organization had not been involved with any of the many organizations that form what some call the DU network -- we didn't know them and they didn't know us. In fact, we did not even know about depleted uranium until 1996 in the course of our work with organizations concerned about the effects of sanctions on Iraqi civilians. However, as soon as we did find out about DU weaponry use in the Gulf War from the groups in the UK we immediately incorporated it into our work because of our focus on humanitarian law.

After our success at the 1996 session of the Sub-Commission we assumed that the broader DU community would want to support this initiative. However, we discovered during the first year (an indeed into the second year) of the Sub-Commission's work that many DU groups did not know about it or had incomplete or in some cases inaccurate understanding of what it was all about. In spite of attempts to rectify that problem, by the summer of 1999 it was clear that there continued to be incomplete and inaccurate information as well as an overwhelming quantity of requests for the materials. I have simply been unable to keep up with that demand due to the total lack of budget. After discussions with Catherine Euler of CADU (she attended the Sub-Commission's 1999 session), and CADU's understanding of the inherent value of the UN initiatives, CADU urged me to prepare a report containing copies of all relevant documents on the UN initiatives as well as a detailed "explanation and strategy" analysis of the IED/HLP DU-UN initiative. CADU agreed to print and disseminate this report throughout the DU community. After efforts throughout Fall 1999 failed to generate the necessary funding to prepare the proposed report, funds finally came in December from an anonymous donor to whom I am very grateful.

WHY IS DU WEAPONRY ALREADY ILLEGAL?

In 1997 I wrote Memorandum on Weapons and the Laws and Customs of War as part of the UN initiative. The full Memorandum as well as excerpts published in various UN documents are included in these materials. However, so many people have asked for a short version that I include here this brief summary.

A weapon is made illegal two ways: (1) by adoption of a specific treaty banning it; and (2) because it may not be used without violating the existing law and customs of war. A weapon made illegal only because there is a specific treaty banning it is only illegal for countries that ratify such a treaty. A weapon that is illegal by operation of existing law is illegal for all countries. This is true even if there is also a treaty on this weapon and a country has not ratified that treaty.

The laws and customs of war include all treaties governing military operations, weapons and protection of victims as well as all customary international law on these subjects.1 In other words, in evaluating whether a particular weapon is legal or illegal when there is not a specific treaty, the whole of humanitarian law must be consulted.2

There are four rules derived from the whole of humanitarian law regarding weapons:

(1) Weapons may only be used in the legal field of battle, defined as legal military targets of the enemy in the war. Weapons may not have an adverse effect off the legal field of battle. (The "territorial" test).

(2) Weapons can only be used for the duration of an armed conflict. A weapon that is used or continues to act after the war is over violates this criteria. (The "temporal" test).

(3) Weapons may not be unduly inhumane. (The "humaneness" test).

(4) Weapons may not have an unduly negative effect on the natural environment. (The "environmental" test).

DU weaponry fails all four tests. (1) It cannot be "contained" to legal fields of battle and thus fails the territorial test. (2) It continues to act after hostilities are over and thus fails the temporal test. (3) It is inhumane and thus fails the humaneness test. DU is inhumane because of how it can kill -- by cancer, kidney disease, etc. long after the hostilities are over. DU is inhumane because it causes birth (genetic) defects thus effecting children (who may never be a military target) and who are born after the war is over. The use of DU weapons may be characterized as genocidal by burdening gene pools of future generations. (4) DU cannot be used without unduly damaging the natural environment and thus fails the environment test.

WHAT ARE THE COMMISSION AND SUB-COMMISSION?

Before setting out the "explanation and strategy" of our DU work at the Commission and Sub-Commission it is important to understand what these two bodies are.3 Administratively, both bodies fall under the Office of the United Nations High Commissioner for Human Rights. The High Commissioner and her staff handle the documentation, provide staff assistance to both bodies and provide the technical services for the sessions. Requests to the Secretary-General by the Commission or Sub-Commission are addressed through the High Commissioner. Information and documentation sent by any interested parties are addressed to the Office, which is located at the UN Office at Geneva, Palais des Nations, CH 1211 Geneva 10, Switzerland.

I. THE UNITED NATIONS COMMISSION ON HUMAN RIGHTS

The Commission is an organ of the Economic and Social Council, itself an organ of the General Assembly. The members of the Commission are 53 governments that sit in their capacity as governments, chosen by the Economic and Social Council based on the usual pattern of geographic allotments of the following geographic blocs: Western Europe and others (the US, Canada, Australia and New Zealand are the "others"); Eastern Europe; Africa; Latin America and Asia.

The Commission meets in Geneva for one 6-week annual plenary session in March and April. Smaller sub-bodies of the Commission called "working groups" may meet during the session (called "sessional working groups") or before the session (called "pre-sessional working groups"). Some working groups (for example the working group drafting a Declaration on the Rights of Indigenous Peoples) have as members, member governments of the Commission. Others (for example the Working Group on Disappearances and the Working Group on Detention) have as members persons nominated and chosen by the Commission who serve in their individual capacity. The Commission also chooses "rapporteurs" ("investigators" but used in the French) also chosen in their individual capacity who report to the Commission on their work. At the present time, the Commission has rapporteurs investigating a wide range of human rights issues such as torture, arbitrary execution, economic rights, and, of special interest to those interested in DU, toxic dumping.

At the sessions (either plenary or working groups) oral statements are made by member governments, observer governments (any other UN member not then a member of the Commission), UN specialized agencies (UNICEF, WHO, the World Bank, the ILO and the others), regional governmental bodies, and last (but certainly not least) non-governmental organizations (NGOs) credentialed by the Economic and Social Council or by the Secretary-General. NGOs have a right to speak once under each agenda item and for the same length of time as non-member governments. The making of the statements is called "the debates". The speeches are called "oral statements" or "interventions." Speeches must relate to the agenda item being addressed.

The "product" of the Commission includes its resolutions, decisions, the reports of its working groups and rapporteurs, the summary record of all the speeches (oral statements or interventions), written statements submitted by NGOs, and written communications from governments (called "notes verbal" in the French). The UN publishes all of these documents. The report of each year's session is submitted to the Economic and Social Council. Commission documents are cited E/CN.4/[year]/. . ..

The Commission may address issues by taking direct actions (condemnations) against violators and may document these violations. Both rapporteurs and working groups may communicate directly with countries alleged to have violated human rights. The Commission's rapporteurs and working groups, thus, address their subject matters in a country - by - country, case-by-case fashion. This is called "proactive" action.

II. THE UNITED NATIONS SUB-COMMISSION ON PROMOTION AND PROTECTION OF HUMAN RIGHTS

The Sub-Commission was established by the Commission and is composed of 26 persons, nominated by their governments, elected by the Commission for 4-year terms, and who serve in their individual capacities. The members are called "experts." The Sub-Commission meets annually in Geneva for 4 weeks in August. The Sub-Commission also has pre-sessional and sessional working groups as well as rapporteurs. Different from the Commission, the Sub-Commission's rapporteurs and the members of its working groups must be sitting members of the Sub-Commission at the time of their appointment.

The sessions are attended by essentially the same cast of characters as the Commission except that at the Sub-Commission all governments are "observer" governments. The debates are the same as at the Commission. The "products" are also essentially the same: resolutions, decisions, reports of its working groups and rapporteurs, summary records of the speeches, written NGO statements, notes verbal that are all published by the UN. The Sub-Commission also issues a report of each session that is submitted to the Commission. Sub-Commission documents are cited E/CN.4/Sub.2/[year]/ . . ..

The Sub-Commission's rapporteurs address their topics from an academic perspective, and their reports are called "studies." Neither the Sub-Commission nor its rapporteurs are authorized to take direct actions against violators. The Sub-Commission's job is to provide the legal framework by which situations are to be reviewed. However, the Sub-Commission can comment on particular countries or urgent situations in resolutions and request the Commission to act on them.

CHRONOLOGY OF DU AT THE UNITED NATIONS

1. 1996 Commission -- oral statements by IED/HLP (Karen Parker, Margarita Papandreou of Women for Mutual Security (WMS)) on DU and sanctions at plenary. NGO forum on DU with Dr. Horst Gunther as speaker. IED/HLP team also included Ahmed Ben Bella, Hugh Stevens (Int'l Commission of Inquiry on Economic Sanctions - UK), Dr. Beatrice Boctor (UK), Philippa Winkler (UK), Daniel Robicheau (UK), Lenore Foerstel (WMS), Attorney Lilia Velasquez (WMS), Georgina Ritchie (WMS). Documents prepared by anti-sanctions groups circulated. Many governments stunned by disclosures about DU; US began efforts to derail any DU action; other NGOs began work on DU; joint NGO statement (22 NGOs) on Iraqi sanctions.

2. 1996 Sub-Commission -- oral statements by IED/HLP (Karen Parker). Parker discussions with Sub-Commission member Ms. Claire Palley (UK). Drafting by Ms. Palley of Sub-Commission resolution 1996/16 asking Secretary-General to collect information on DU (and other weapons) and submit report to 1997 session of Sub-Commission. Dr. Beatrice Boctor part of IED/HLP team. IED begins collecting and sending documents to Secretary-General. Karen Parker begins Memorandum and submits (Spring 1997). Circulation of document prepared by Dr. Beatrice Boctor for Int'l Comm. of Inquiry.

3. Commission 1997 -- Further speeches and written statements by IED/HLP (Karen Parker) at Commission. (U.N. Doc.E/CN.4/1997/NGO/49). Lilia Velasquez (WMS) part of IED/HLP team. Focus on trying to get Commission's Rapporteur on Toxics (Mme Fatma Zohra Ksentini - Algeria) to address DU in her work. Attempt (failed) to insert concern for DU in Commission resolution on Iraq. Meetings with staff of Secretary-General and governments regarding report.

4. Sub-Commission 1997 -- Secretary-General's Report (U.N. Doc. E/CN.4/Sub.2/1997/27 and Add. 1) issued. Further speeches by IED/HLP on DU (Karen Parker, Damacio Lopez) and sanctions (Karen Parker). Dr. Boctor and attorney Fabio Marcelli (Italy-Bridges to Baghdad) part of IED/HLP team. Meeting with members of Sub-Commission to find one willing to be Sub-Commission Rapporteur on Weapons. Agreement with Clemencia Forero-Ucros (Col). Sub-Commission resolution 1997/36 appoints Rapporteur Forero Ucros. Sub-Commission resolution 1997/35 (introduced by Marc Bossuyt (Belgium) on sanctions and human rights. Throughout year, IED/HLP continues to submit documents provided by DU community to Secretariat in Geneva and directly to Mme Forero.

5. Commission 1998 -- IED/HLP oral statements (Karen Parker). IED/HLP circulated written statement by Philippa Winkler and Daniel Robicheau and by Alaska Community Action on Toxics. IED/HLP meetings with Colombian representative (Sub-Commission alternate to Mme Forero Ucros) on report. Discussion about value of delay in rapporteur's working paper. Ultimate decision to delay. (See below for reasons). Extension of mandate (another 3 years) of Commission's Rapporteur on Toxics (Mme Fatma Zohra Ksentini - Algeria). Meetings with Rapporteur Ksentini on difficulties of her addressing DU in her work. (See below). Informational panel on sanctions and DU (Organized by General Arab Women's Federation, WILPF and IED/HLP -- Karen Parker speaker).

6. Sub-Commission 1998 -- Mme Forero Ucros absent and fails to turn in "working paper". IED/HLP (Karen Parker) worked with her alternate to draft Sub-Commission Decision 1998/111 to carry over weapons paper. IED/HLP written statement (E/CN.4/Sub.2/1998/NGO/25) and several oral statements (Karen Parker, Damacio Lopez). In absence of Marc Bossuyt due to illness, worked with his alternate to carry over "sanctions" action. (Sub-Commission Decision 1998/112). Attorney Fabio Marcelli and Damacio Lopez part of IED/HLP team.

7. Commission 1999 -- IED/HLP oral and written statements. (U.N. Doc. E/CN.4/1999/NGO/119). Informational panel with IED/HLP (Karen Parker) and showing by Philippa Winkler of "Radioactive Mines to Radioactive Weapons (Desert Concerns, Robicheau and Winkler). Beginning of info about DU use in Yugoslavia (Kosovo). Colombian delegate (Mme Forero Ucros' alternate) not present so not possible to assess "progress."

8. Sub-Commission 1999 -- Mme Forero Ucros again absent. Attempt by IED/HLP (Karen Parker) to change Rapporteur. "New" rapporteurs fail to table draft resolution on time, so Rapporteur remains Forero Ucros. Oral statements:IED/HLP (Karen Parker) and joint statement IED/HLP and International Peace Bureau (Catherine Euler (CADU-UK). Further statements by other NGOs and governments. NGO Forum on DU: IED/HLP, General Arab Women Union, Union of Arab Jurists, Women's Int'l League for Peace and Freedom, World Council of Churches and many others (see materials) with speakers Karen Parker, Dr. Rosalie Bertell. Dr. Beatrice Boctor presented film is "Radioactive Mines to Radioactive Weapons" by Desert Concerns. Meeting arranged by Catherine Euler with Ambassador of Yugoslavia, Karen Parker, on Kosovo situation.

WHAT CAN THE COMMISSION AND SUB-COMMISSION DO ON THE DU ISSUE (THE "WHY BOTHER" QUESTION)

We took this issue to the Commission and Sub-Commission because in our view these bodies are the places best suited to advance our position that DU is already illegal and cannot be used in military operations without violating existing humanitarian and human rights law. The fact that the Sub-Commission has formally taken up these weapons indicates its understanding that weapons may be banned by operation of existing law and that in its view the listed weapons violate that law. The Sub-Commission also acknowledges that this is an appropriate subject for the UN human rights bodies.4 In this sense, we have already won. What remains is to fill in the details.

Existing customary humanitarian law, as all customary law, is "found" by a legal test, set out by the United States Supreme Court as early as the nineteenth century as already long-existing. The statutes of both the Permanent International Court of Justice (League of Nations) and the current International Court of Justice (United Nations) contain the same legal test. According to this legal formula customary law is "found" by consulting similar treaties on the subject; international, regional or local laws, declarations or decisions on the subject; judicial (court) opinions; fundamental legal principles; and as an auxiliary means, the opinions of "experts."

We want others to consult not only all relevant treaties of humanitarian law (many ratified by the US) but also the other sources of humanitarian law when evaluating DU. We are convinced that such a consultation of these sources by anyone must lead that person to the same conclusion that we have reached -- DU is already banned.

Besides other useful provisions of treaty-based humanitarian law, there is a particularly relevant one: the "Martens Clause" to the Hague Convention of 1907 that is repeated in subsequent humanitarian law treaties. The Marten's Clause provides that in situations where there is not a specific treaty provision (which is the case with DU), the international community is nonetheless bound by "the rules of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience."5 We wanted to invoke "the dictates" in showing the huge anti-DU network. Thus the existence of the anti-DU network is legally relevant to the illegality of DU.

The United Nations forums are ideal places to give the international community opportunities to comment (as "experts") on the illegality of DU, thus making it much more difficult if not impossible to argue to the contrary.6 Our own statements are accepted as "expert" opinion, so we are advancing our own case to bring it up in the UN forums. We also get other governments, members of the Sub-Commission, members of the Secretariat (including the Secretary-General) and NGOs (other "experts") to support our findings -- as they have done with statements, resolutions, submission for the Secretary-General's report and the like. Thus we are reinforcing the law by "padding" the record.

But the debate at the UN did not happen until we raised it -- and the existing illegality of DU had not been raised before in a place that was "legally" meaningful. This points out the real power of NGOs at these forums: in this sense both the Commission and Sub-Commission are NGO driven. NGOs have initiated a number of actions that would have not been taken "but for" the NGOs. This is one of those issues.

Note again that the "dictates of the public conscience" is a source of humanitarian law. Thus, the existence of the huge anti-DU community that we can identify in our work at the UN provides evidence of the dictates of the public conscience. The UN forums do not need to have the whole DU community present, but the more the international community is aware of that community, the more evidence we show that DU is banned by the dictates of the public conscience alone. When we first raised DU at the UN not all the science we have today was available. However, enough was available to warn the international community that DU would certainly invoke the "dictates" and that DU weaponry is inherently inhumane.

I wrote the Memorandum to circulate at the UN to further the application of customary international law to DU and to enhance the "dictates" argument. I also wrote it because there was not in any one place a setting out of the legal criteria for weapons. Circulating my "4-point test" (which of course I derive from existing humanitarian law) also gives the international community an opportunity to verify and validate this test. At this point, there seems to be clear acceptance in the international legal community at the UN that my test is "the test."7 As that is so, then DU is illegal because it so clearly fails the test -- as is any other weapon that fails.

There is a great value in establishing the DU is already illegal. Of course the first goal is to enhance the likelihood that victims of this illegal weaponry will obtain treatment and compensation. If DU is already illegal (and it is) then it makes possible legal actions in domestic courts for adverse effects of DU weaponry in combat. Further, groups seeking better benefits and programs for veterans can be more effective. A major secondary goal in establishing that DU is already illegal is to prevent its future use and proliferation. (We have already begun action in the human rights forums on the use of DU in Kosovo and other parts of Yugoslavia).

HOW DOES THE PROCESS AT THE UNITED NATIONS WORK?

Although any issue that fits under an agenda item may be raised at either forum, usually work on a "new" issue begins at the Sub-Commission level. Important new issues are typically subject to what has happened in the case of DU and other weapons -- a preliminary report by the Secretary-General followed by the appointment of a Sub-Commission member as rapporteur. The first task of a rapporteur is usually to prepare a working paper (with no budget) that outlines the issue in terms of fact and law and then describes why and how a full study on the issue should be prepared. The "Weapons" report is at this stage. Meanwhile, members, governments and NGOs can continue to comment publicly (on the record with oral or written statements) and may circulate other materials at the sessions. There can be NGO-hosted briefing sessions (as we have done five or six times) as well as press releases, conferences and the like (which, alas we have not done very much).

After presentation of the working paper, the Sub-Commission may authorize the rapporteur to go forward with a full study. This process typically takes 3 years: the first year the rapporteur prepares a "preliminary report", followed the second year with a "progress report" and concluding the third year with a "final report." This process can be shortened or prolonged for a variety of reasons -- the issue is still evolving, the "politics" hold it back or push it forward (this can be either good or bad depending on the issue).

Because the full study requires a budget, the approval of the Sub-Commission rapporteur must upheld by the Commission and ultimately ECOSOC.

When a Sub-Commission rapporteur concludes a study, it is sent on to the Commission for action. The Commission can decide to "officially" publish the study8 and do nothing further. By so doing, the Commission "accepts" the legal findings and legal consequences of the findings. The Commission may also appoint its own rapporteur on the subject. This rapporteur, however, would address the issue in terms of country-by-country, case-by-case violations.9

The DU/weapons issue as at the Sub-Commission awaiting the working paper. If the existing rapporteur does not present the paper at the Summer 2000 session, our job will be to convince another member to take over. Meanwhile, updated studies and reports from the DU community can be sent, through a "credentialed" NGO to the Office of the High Commissioner in Geneva. The general DU issue is not officially anywhere at the UN, but we have raised concerns under generalized agenda items.

WHAT ABOUT THE "TOXICS" ISSUE AT THE COMMISSION?

As has been set out above, there is a Special Rapporteur for Toxics, Mme Fatma Zohra Ksentini (Algeria). Her mandate is essentially limited to "illicit movement and dumping" of toxic material. (See Commission Resolution 1998/12). The US insists that her mandate is limited to dumping in developing countries although the Resolution does not forbid addressing developed countries.

While the Rapporteur has been sent voluminous materials on DU and has willingly met with me and others (especially the representatives of American Indian NGOs) to date she has not taken up this issue in a public way in her reports. She has mentioned at the plenary that she has received this information on DU. Her bottom line prior to 1998 was to ensure that her mandate was extended for a second three-year period. The Commission did that at its 1998 session. We were convinced that the US would lead a substantial effort to terminate her mandate (it did) and that both she and her government might be too politically weak to withstand any challenge.10

Mme Ksentini is now nearly 2 years into her second mandate. While still not taking a very active role in DU (in part also because of the existing Sub-Commission mandate) documents sent to her "circulate" in the UN community and help develop this as a hot issue. Further, the African countries who have been the main support of the toxics issue are becoming very concerned about DU -- note that Nigeria submitted a comment back in 1997. (U.N. Doc. E/CN.4/Sub.2/1997/27). However, it does not do too much good to push Mme Ksentini any further, and it is unlikely that she will take on the DU issue as it relates to DU in the US any time soon.

IS IT GOOD OR BAD THAT THE RAPPORTEUR HAS NOT PRESENTED ANYTHING YET?

The simple answer is yes, it is good that the rapporteur has yet to issue her "working paper" and may not do so this year (2000) either. This does not mean that there are not bad aspects to this, but merely that the good heavily outweighs the bad. On the good side we have:

(1) the fact that the process of eliciting statements and comments about the illegality of DU is on-going. We do not need a rapporteur's working paper to authorize the continued talk. Each time the illegality is raised, it enhances the legal conclusion that DU is illegal. By prolonging the "debates" we have more time to pad the record as well as ensure the proper direction in the work of the rapporteur. And each time we present, a wider array of "experts" comment.

(2) the US cannot stop the agenda where it now is. This is because the existing "working paper" mandate is without financial implications -- UN code for saying that the process is not taking any additional funds. Thus, the appointment of the rapporteur for the working paper does not have to be approved by the Commission, where the US will surely try (and probably succeed) to disapprove it. When the working paper is done, the Sub-Commission will either drop the issue (which we probably do not want) or proceed to a full study, which would require Commission (and ultimately ECOSOC) approval because the study would need a budget. (The Sub-Commission must have Commission/ECOSOC approval of its budget). Thus a factor in the timetable issue is to evaluate when it might be possible to out-vote the US at the Commission. On the other hand, we may decide that the working paper should be as nearly a "full study" as possible, thus getting a "study" without going through the budget request mechanism. In this case, the working paper may be the only Sub-Commission document, but would speak for itself as far as the law and facts.

(3) we already have much of what we need in such a report in the Secretary-General's report, my Memorandum, and the written statements already published by the UN. The world is on notice -- in print -- in UN documents -- that there are serious humanitarian and human rights concerns with DU weaponry. This does not mean we should try to go forward with a full study (or a study disguised as a working paper) or that there is more to gain when we do go forward, but the Secretary-General's report and these other documents certainly put a whole lot in print (circulation) already. Thus, governments and others that do not comment could be viewed as "acquiescing". And at each session the issue comes up again for comment.

(4) evidence about the effects of DU is still being collected. As each new fact is discovered, we can present that. Remember, that the UN human rights forums address human rights and humanitarian law. Thus, these forums are not useful to advance the science -- only the law. The science becomes "evidence", but the UN human rights forums are not able to order or pay for scientific studies.11 In any case, the information from the science is evolving, thus strengthening our case before any final study might be published.

(5) the fact that rapporteur has not submitted is viewed as clearly political. The rapporteur is from Colombia (and in fact has a high position in the government of Colombia). The US is heavily involved in Colombia on a variety of fronts. The fact that the rapporteur did not even come to Geneva at all for two years is viewed by those at the forums as "speaking for itself."

(6) given the likelihood that the rapporteur will not present, it gives us more time to find an amenable member of the Sub-Commission to replace her. And the pickings have been slim -- remember that Sub-Commission rapporteurs must be actual members. At the last elections, there were several good new members voted in. They are new but show great promise. One was willing to go forward Summer 1999 as replacement raporteur if no one else could be found. As we had already committed Bossuyt to agree to be "sanctions" rapporteur there were few other choices. Further, I would prefer a person from a bloc other than "western Europe and other). So the search continues for a replacement. There are elections for one half the seats at the Sub-Commission at this year's Commission and there may be several new good candidates for this work.

On the bad side we have the "momentum" issue. While momentum is not yet perceived to be lost because we have kept up the pressure with speeches and "new" information, without action at the 2000 Sub-Commission, we could begin to loose momentum. Also, the longer the process, the more time for US backlash, which can be unleashed at any moment. (Fortunately, to date the US has not succeeded in generating a back-lash, which itself has legal significance).

Also on the bad side is that DU groups not understanding the process can be unduly frustrated by the "delays" and try to take attention away from it or even discredit it. There may be a call from the DU groups to seek a treaty instead (which I believe to be exceptionally detrimental for the reasons set out below). This could take away even the few funds we have for DU work at the UN. And of course we would then lose this valuable public forum. Delays may also allow the US to exert such pressure on the rapporteur that the result is poor and the Sub-Commission decides to drop the issue. Or the Sub-Commission could just decide to cancel further work.

WHAT SHOULD THE DU COMMUNITY DO TO FURTHER THE UN WORK?

Organizations that wish to help this UN initiative can best help us by collecting information (documentation, including the science) and continuing the publicity and community organizing they are now doing but with an added dimension of disseminating the UN work and perhaps supporting it with funds. Our organization and other human rights organizations have neither the money, time nor staff to do any of this. My organization has not even had the funds to issue press releases after our speeches at the UN so practically none of the UN concern has made the "mainstream" press in the US.

Our organization has tried to enlist support from our usual donors for our DU work, but these donors are interested in their own issues -- Mexico or East Timor and the like. We have been reluctant to go directly to the donors of the DU community for reasons of solidarity: we have not wanted to be viewed as stealing these donors. What we had hoped was that the DU groups would financially support this work as part of their existing programs which would, accordingly, keep their relationships with their donors intact.

Some organizations want to send delegates to the sessions in Geneva. While this is not necessarily a bad idea, it is not a very good one either. First of all, most DU groups do not have UN credentials. Those human rights organizations with credentials cannot turn over their credentials to the DU organizations -- all work must be in the name of the UN NGO. Most UN NGOs deal with a wide array of issues, not just DU, and we all need to carry out our whole agenda. Very few can take on extra people who would then need to be trained. (We are all so overworked at the session it is especially difficult to take proper time to train someone). Most NGOs require board approval of any statement made in their name, so this also causes much extra work (and perhaps anger when a proposed statement by a representative of a DU group is rewritten by the UN NGO). In any case, the UN work is what we do -- we are there and have been there a long time, we know the background, we know the players, we know what to say and how to work.

Remember also that the UN NGOs are presumed to be "experts" in terms of the law of sources of international human rights and, in our case, humanitarian law. These forums are "legal" forums. It is for this reason that a UN-credentialed organization must "officially" submit documents prepared by organizations that do not have credentials. For example, I write a cover letter for documents from the DU community that I then forward to the UN. Documents sent directly by DU groups are not officially there until submitted by UN NGO.12

There are also financial considerations to be made regarding UN work. Most NGOs are dramatically underfunded. We must carefully allocate our time and money. We try not to do what someone else is already effectively doing. It is not numbers of people that influence the UN forums but the legal and political expertise that does. While at some point a demonstration with thousands might be useful in front of the UN buildings, more than a few "inside" can't and shouldn't happen. As long as we can assure the "inside" that the numbers "outside" are great, then the forums do not need to "see" it. In this sense the UN work is more like representation at the Supreme Court and not like lobbying Congress.

WHY NOT WORK ON A DU-BANNING TREATY ANYWAY?

Our organization and an increasing number of other human rights organizations are leery of efforts to have new treaties. Part of this reluctance is the huge financial outlays given the length of time it take to get a treaty. The treaty process can take years, the meetings can take place anywhere, any time.

Furthermore, only governments ratify treaties and ultimately decide on their contents. Although human rights lawyers (myself included) have drafted substantial portions of international instruments, it is ultimately governments that decide. Thus, NGOs have substantially less impact on treaties then we have on UN declarations, resolutions and the like. In many circumstances, NGOs are not part of the process at all.

The tendency these days by the US and other governments is to use treaty processes to try to weaken existing customary law. The United States tries (unsuccessfully) to assert that if there is a treaty on a subject, then any pre-existing customary international law on the subject is terminated. Thus in terms of DU, even beginning the process to draft a treaty would be used by the US to argue that any ban on DU in light of existing customary law is terminated. This would be devastating in the US because Courts in the US are likely to be persuaded on this point even though the International Court of Justice categorically rejects this line of reasoning in the Nicaragua case. (Note the US also "declines jurisdiction" of the Court in the Nicaragua case although the US is not legally allowed to do so.)

The US would almost certainly not ratify a treaty on DU regardless of the language of the treaty -- which for sure the US would control. However, the US would still argue that the existence of the treaty subsumes the customary international law banning DU. We lawyers would be at a tremendous if not fatal disadvantage trying to win compensation claims for DU victims in US (and possible UK) courts.13 It also would clearly be more difficult for Gulf War veterans to take their issues directly to the Veteran's Administration as the VA would be taking the position that no illegality was involved.

2.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 this criteria.

3.Perhaps a word about what they are not is in order also. First of all, neither the Commission nor the Sub-Commission are governments. They do not ratify treaties. They are not part of the UN Secretariat although the Secretariat serves them. They are not courts and do not issue judicial opinions. Their meetings are not "conferences" as most people understand conferences to be.

4.The United States tries to argue that weapons may only be discussed in the "disarmament" context (where there is much less capacity for 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.

5.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.

6.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 already customary law (at level of jus cogens) so it is too late to object. 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. They 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.

7.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).

8.The study has already been issued as a Sub-Commission document at this point.

9.This is how the work on human rights and the environment progressed: at the conclusion of Mme Ksentini's Sub-Commission work, she was appointed Commission Rapporteur on Toxics. She now addresses the environment not in terms of setting out the law of human rights and the environment but on a country's violations of that law. At this stage, the existence of the law is always presumed, although a raporteur may set out new or evolving aspects of the law.

10.I have known Mme Ksentini for 17 years. When I (representing Sierra Club Legal Defense Fund) started the UN on the human rights and environment issue, we chose her as Sub-Commission rapporteur on that topic (she was a member of the Sub-Commission at that time). When she finished her work at the Sub-Commission, she did not seek re-election but instead was named Commission rapporteur. The US tried everything to deny this appointment but failed. I was heavily involved in this "victory" about which a whole book could and should be written. In any case, it was essential to extend her mandate in 1998 and to keep the US as quiet as possible and assure the vote "around" the US. This we did. If we had made the DU issue "big" at that point, the US may have put the pressure too high on our supporting governments.

11.However, these bodies can "request" that the World Health Organization look into it. The WHO can, of course, decline (it is a Specialized Agency) and the US just heavily pushed for and won its candidate as new director (the Chilean) replacing the Japanese (who would be more likely to backed us on any "nuclear" implications). Note: this is where Dr. Rosalie Bertell and medical people can be very useful -- meeting with the WHO. They have the scientific expertise to talk there that the lawyers and human rights people do not have. In fact, that is precisely what Dr. Bertell did at Sub-Commission time Summer 1999 -- she went to the WHO.

12.What I have done is request that organizations send me documents that I then submit under our NGO. When I get to Geneva I go to the Secretariat look over documents that were sent directly by a DU group. If any looks like worthwhile material given the nature of the human rights work, I then write a cover letter submitting that document under our name. I also try to cite as much material from others as I can in my written and oral statements so that it is part of the game.

13.I have had to address some of these legal issues in trying to obtain compensation for the US POWs held by Japan. Unfortunately, discussion of these points would take too many pages in this document.