ELR NEWS&ANALYSIS. Radioactive Warfare: Depleted Uranium Weapons, the Environment, and International Law. by Robert Thompson

Transcription

1 ELR 36 ELR NEWS&ANALYSIS Radioactive Warfare: Depleted Uranium Weapons, the Environment, and International Law by Robert Thompson Editors Summary: No one can deny the terrible toll that a nuclear bomb has on humans and our environment. But what about the impacts of weapons containing depleted uranium (DU), a low-level radioactive waste product? A number of countries, including the United States, have used DU munitions during times of war. In this Article, Prof. Robert Thompson discusses the health and environmental impacts of DU munitions. He also examines international laws and guiding principles, including the Hague and Geneva Conventions, which may be helpful in addressing DU contamination. Although more questions than answers remain about the use of DU, Professor Thompson argues that given its inherently dangerous and toxic nature, nations wishing to use DU must first prove that it can be used without harming future generations. I. Introduction Robert Thompson is an Assistant Professor of Law at the Florida A&M University College of Law in Orlando, Florida, where he teaches courses in patent law, intellectual property, contracts, business organizations, and law, science, and medicine. Professor Thompson is a Registered Patent Attorney, chemist, and chemical engineer with over 15 years of laboratory and aerospace experience. 1. Environmental Science Division, Final Programmatic Environmental Impact Statement for Alternative Strategies for the Long-Term Management and Use of DU Hexafluoride S-2 (2004) (DOE/EIS-0269), available at anl.gov/uranium/documents/nepacomp/index.cfm [hereinafter Final EIS]. 2. DU Library, DU in the Gulf War, available at link.osd.mil/du_library/gulfwar.shtml (last visited Apr. 28, 2006); see also U.S. Department of Defense, Briefing on Depleted Uranium (Mar. 14, 2003), available at /t _t314depu.html. The methods and modes of warfare have changed over the millennia. Humans have gone from sticks and rocks to the use of fissionable matter. Whether we consider this advancement or regression for the human race is debatable; the expansion of warfare tactics is indeed real. During this regression or evolution, an idea surfaced to use the leftover toxic and radioactive mixture remaining from the uranium enrichment process to produce munitions and armaments. Since the beginnings of the nuclear age in the 1940s, the United States has produced approximately 700,000 metric tons (1.6 billion pounds) of depleted uranium (DU). 1 The U.S. military admittedly used DU during the 1991 Gulf War. 2 The United States and the North Atlantic Treaty Organization (NATO) have also used these weapons during the conflicts in the Balkans, Kosovo, and Yugoslavia, and the U.S. military continues to use DU weapons in the current Iraq War. 3 Other countries believed to possess DU weapons include Bahrain, China, Egypt, France, Israel, Kuwait, Oman, Pakistan, Russia, Saudi Arabia, Taiwan, Thailand, Turkey, Ukraine, United Arab Emirates, and the United Kingdom. 4 There are many environmental and health-related problems with using DU weapons. DU weapons are inherently toxic, both chemically and radiologically. DU weapons can aerosolize upon impact with their radioactive particles, potentially spreading for miles. This aerosol may also come to rest in the soil, or the wind may sweep the aerosol into the air again. Alternatively, the aerosol may find its way to sources of water where it will continue to contaminate the water for billions of years. 5 Many scientists also believe that this air, 3. United Nations Environment Program (UNEP), DU in Kosovo, Post-Conflict Environmental Assessment 7 (2001), available at (last visited Apr. 17, 2006) [hereinafter DU in Kosovo]. 4. Dan Fahey, The Emergence and Decline of the Debate Over Depleted Uranium Munitions 5, 6 (2005), available at 5. The half-life of uranium is approximately 4.5 billion years. The halflife of a radioactive element is the time it takes for one-half of its atoms to decay into something else. For example, the half-life of radium-226 is 1,600 years. Therefore, in 1,600 years, one gram of radium-226 will turn into one-half gram of radium-226 and one-half gram of something else (the radioactive decay products of radium). After another 1,600 years, one-quarter gram of the original radium-226 will remain. DU, therefore, will remain radioactive for billions of years as it continues to produce radioactive decay products. As these radioactive decay products accumulate, DU may, in fact, become even more radioactive as the centuries and millennia go by. The radioactive decay byproducts of uranium-238 include thorium- 234, protactinium-234, uranium-234, thorium-230, radium-226, radon-222, polonium-218, lead-214, bismuth-214, polonium-214, lead-210, bismuth-210, polonium 210, and lead-206, all of which are

2 NEWS & ANALYSIS 36 ELR soil, and water contamination may be the root cause of Gulf War Syndrome experienced by veterans of the Iraqi War. 6 Others suggest that DU is responsible for similar mysterious illnesses among NATO forces and civilian populations in the Balkans, Kosovo, and Yugoslavia. 7 Still others hold the view that exposure to DU weapons may be responsible for birth defects and anomalies among children. 8 Reports also implicate DU as a carcinogen. 9 These are just a few of the reported problems associated with DU usage additional problems will likely surface in the future as weapons and fragments left on the battlefields decay over time. Currently, most of the world seems uninformed about DU weapons. Most citizens in the United States are unaware of their government s use of DU weapons during the Yugoslavian conflicts and the Iraq wars. Most of the soldiers fighting in these conflicts were uninformed of their use, and many did not know of their exposure or their possible handling of DU munitions. 10 Part II of this Article discusses the chemical, physical, and radiological properties of uranium and DU weapons as well as some of the commercial and military applications for DU. Part III discusses how DU enters the environment and the human body. Part IV then looks at some of the negative health and environmental impacts of DU. This section also describes a recent study conducted by the National Research Council of the National Academy of Sciences (NAS) that concluded that there is a linear no threshold dose response for which any dose greater than zero has a positive probability of producing an effect (e.g. mutation or cancer). 11 Part V examines international laws and guiding principles, including the Hague and Geneva Conventions, that may be helpful in addressing DU contamination, if not banning the use of DU outright. Last, the Article makes a number of recommendations for the United States and the international community. II. Background on DU and Its Use The uranium found in nuclear bombs, typically uranium-235, is highly concentrated. Enrichment increases the proportion of the uranium-235 isotope from its natural level of 0.7% to an enriched level of 3 to 4%. 12 The enrichment toxic and deadly. Canadian Coalition for Nuclear Responsibility, Here Are the Radioactive Byproducts of DU (Uranium-238), at (last visited Apr. 17, 2006). 6. Gulf War and Health: Volume 1. DU, Pyridostigmine Bromide, Sarin, and Vaccines (Carolyn E. Fulco et al. eds., National Academy of Sciences (NAS) Press 2000), available at nap.edu/catalog/9953.html. 7. Asaf Durakovi, Undiagnosed Illnesses and Radioactive Warfare, 44Croatian Med. J. 520 (2003), available at stopnato.org.uk/du-watch/durakovic/undiagnosed.pdf. 8. Id. 9. Low-Level Radiation Campaign, Cancer in Sarajevo After the NATO Shelling, available at sarajeva.htm (last visited Apr. 17, 2006). 10. BBC News, DU Depletes Greek Kosovo Troops (Jan. 19, 2001), available at Committee to Assess Health Risks From Exposure to Low Levels of Ionizing Radiation, National Research Council, Health Risks From Exposure to Low Levels of Ionizing Radiation, BEIR VII-Phase 2, at 7 & fig. PS-3 (NAS Press 2006) [hereinafter BEIR VII Report]. 12. Final EIS, supra note 1. process converts natural uranium to uranium hexafluoride gas, which is then separated with one part consisting of concentrated (enriched) levels of uranium-235 and the other almost devoid (depleted) of uranium-235. The enriched uranium hexafluoride is used for manufacturing commercial nuclear reactor fuel, which typically contains 2 to 5% uranium-235, or it may be further concentrated for military applications, e.g., weapons grade uranium and naval reactor fuel, which require further enrichment of up to 95% or higher of uranium The DU portion is a waste product, although it is still radioactive. According to the U.S. Department of Energy (DOE), as of April 1999, there were about 740,000 metric tons of DU generated by DOE and the U.S. Enrichment Corporation, a corporation created in 1993 to privatize the uranium enrichment program. 14 The United States continues to produce approximately 30,000 tons of DU each year as a byproduct of uranium processing. 15 Despite DU being a waste product, there are some uses for it. Some commercial aircraft use DU as a counterweight or ballast because it takes up little space due to its heavy density. 16 Air rudders, elevators, and ailerons are other locations where DU may find use in commercial aircraft. 17 Medical equipment related to cancer radiation therapy also use DU as shielding. 18 Prior to the discovery of its radiological and chemical toxicity, uranium was the coloring agent of choice for ceramics and glass. 19 Also, in the past 100 years or so, dental porcelains comprised uranium as a coloring agent because of its natural look. 20 DU is also used in weapons. U.S. introduction into the use of radioactive materials as military weapons began during World War II. A 1943 declassified memorandum recommended that the United States spread radioactive terrain contaminants over the ground so that military combatants would inhale and then suffer from its chemical and radiological effects. 21 In the 1970s, the U.S. military began testing DU and other high-density metals for kinetic energy anti-armor penetrators and tank armor. 22 The military chose DU because it easily burns in air and the U.S. government 13. Id. at S-2, S Id. at S Henryk Bem & Firyal Bou-Rabee, Environmental and Health Consequences of DU Use in the 1991 Gulf War,30Env t Int l 123, 124 (2004), available at 595E/Session%207/BemEnv&HealthConseq.pdf. 16. World Health Organization (WHO), DU: Sources, Exposure, and Health Effects 26 (2001),available at who.int/ionizing_radiation/pub_meet/ir_pubs/en/index.html; U.S. Department of Transportation, Is Your COMAT Safe to Fly? (2000), available at headquarters_offices/ash/ash_programs/hazmat/aircarrier_info/ media/comat.pdf. 17. Wikipedia.com, Boeing 747, Facts and Trivia, at org/wiki/boeing_747 (last visited Apr. 17, 2006). 18. WHO, supra note 16, at Id. at Id. 21. Memorandum from Dr. James B. Conant et al., U.S. Engineer Office, War Department, to Brig. Gen. L.R. Groves, Oct. 30, 1943 (declassified June 5, 1974), available at Nucs/Groves-Memo-Manhattan30oct43a.htm. 22. Dan Fahey, The Final Word on Depleted Uranium,25Fletcher F. World Aff. 189, 190 (2001).

3 36 ELR ENVIRONMENTAL LAW REPORTER wanted to rid itself of this toxic waste in fact, it was giving it away almost free to arms manufacturers. 23 Today, many weapon systems are capable of handling DU munitions, including tanks, aircraft, guns, cannons, and ammunition. The U.S. military also uses DU to reinforce the armor plating of vehicles such as tanks and jeeps. 24 In Iraq during the 1990s Gulf War, air strikes covering thousands of square miles used DU munitions. 25 During this time, the United States reportedly fired a total of 320 tons (290,300 kilograms) of DU projectiles. 26 Further reports state that tons of DU munitions, destroyed tanks, and vehicles left in the Gulf region after the first Gulf War allowed DU to enter the air, the water, and the soil. 27 During the conflict in Kosovo, between April 6 and June 11, 1999, there were 112 attacks by NATO forces that used DU-containing ammunition. 28 During these attacks, the number of DU and high-explosive rounds used per location varied from about 50 to about 1,300, with DU rounds constituting approximately 25% of the total. 29 And the U.S. Air Force fired approximately 3.3 tons of DU at 12 sites in Bosnia- Herzegovina between 1994 and In 1999, these same aircraft fired nearly 10.2 tons of DU in Kosovo. 31 III. Migration of DU Into Humans and the Environment As DU weapons aerosolize upon impact, initial exposures to DU will likely come from inhaling suspended particles in the air and dust. 32 Alternatively, DU munitions may become lodged into the earth, either in whole or in part. DU penetrators, particles, and fragments will remain in the earth and eventually contaminate the soil. 33 Scientists generally agree that DU released into the environment will contaminate the soil or migrate to surface water and groundwater. 34 Once DU enters the ground, it may remain there for years or decades decaying. 35 The extent of the effects of DU on the environment will vary according to the soil, rock, water, and atmospheric conditions. 36 Water, insects, and worms may transport small fragments of the penetrators from their impact point in the ground to the surface of the soil. The wind, rain, and surface water flows will gradually redistribute the small fragments and dust. DU air particles may also find their way to sources of water where they will continue to contaminate the water for billions of years. 37 Rain, water runoff, and soil composition may also work together to contaminate drinking water sources. 38 Notably, DU differs significantly from naturally occurring uranium both chemically and mineralogically. 39 DU is more easily leached, may be more reactive with biological systems, and may be more mobile in the environment. 40 Further, commentators have pointed out that DU, with a radioactive half-life of 4.5 billion years and an indefinite chemical toxicity, precludes the possibility of controlling the effects of DU in space or time. 41 Once DU enters the food chain, it may be ingested, be it through farm products (crops, milk from animals that have eaten in contaminated pastures, and animal products) or contaminated water supplies. 42 Small children may also 23. Gert Harigel, Nuclear Age Peace Foundation, DU Weapons A Threat to Human Health (Nov. 2001), available at wagingpeace.org/articles/2001/11/00_harigel_du.htm. 24. The Royal Society, The Health Hazards of DU Munitions, Part I, at 3 (2001), available at displaypagedoc.asp?id=11496 [hereinafter The Royal Society, Part I]; see also Warfighter s Encyclopedia, M1A1 Main Battle Tank, available at landcrft/m1a1tank.htm (last visited Apr. 20, 2006); Mike Sheheane, Depleted Uranium, the Truth and Nothing but the Truth, Armor, July/Aug. 2000, at 32, available at center/ocoa/armormag/ja00/4dureprint00.pdf; Defence Journal, M1A1/2, available at htm; U.S. Department of Defense, Environmental Exposure Report Depleted Uranium in the Gulf, Tab F (1998), available at See WHO, supra note 16, at DU Library, supra note 2; U.S. Department of Defense, News Transcript, Briefing on DU, Friday March 14, 2003, available at html. 27. Statement of Dr. Asaf Durakovi Chief of Nuclear Medicine, on the Medical Implications of DU, International Action Organization, available at Durakovic%20Bio.htm (last visited Mar. 17, 2005); UNEP, Environment in Iraq: UNEP Progress Report 20 (2003), available at WHO Guidance on Exposure to DU for Medical Officers and Programme Administrators 5 (2001), available at final.pdf [hereinafter WHO Guidance for Medical Officers]. DU in Kosovo, supra note 3, at 6, Id. at See DU Library, DU in the Balkans, available at deploymentlink.osd.mil/du_library/balkans.shtml (last visited Apr. 17, 2006). 31. See id. 32. See WHO, supra note 16, at The Royal Society, The Health Hazards of DU Munitions, Part II, at x (2002), available at pagedoc.asp?id=11498 [hereinafter The Royal Society, Part II]. 34. See WHO, supra note 16; Sandia National Laboratories, Corrosion of Depleted Uranium in Desert Soil 1, 2, 29, 30 (1999), available at webviewable/13957.pdf; UNEP, Desk Study on the Environment in Iraq (2003), available at iraq_ds_lowres.pdf; W. Schimmack et al., Leaching of Depleted Uranium in Soil as Determined by Column Experiments (Institute of Radiation Protection 2005), available at PubMed&list_uids= &dopt=Abstract; U.S. Army Center for Health Promotion and Preventative Medicine, Health Risk Assessment Consultation No. 26-MF D, Depleted Uranium: Human Exposure Assessment and Health Risk, Characterization in Support of the Environmental Exposure Report, Depleted Uranium in the Gulf of the Office of the Special Assistant to the Secretary of Defense for Gulf War Illnesses, Medical Readiness and Military Deployments (OSAGWI) (2000), available at html; DU in Kosovo, supra note 3, at ; UNEP, DU in Bosnia and Herzegovina, Post-Conflict Environmental Assessment 10 (2003), available at publications/bih_du_report.pdf [hereinafter DU in Bosnia]. 35. DU in Bosnia, supra note 34, at 9, 14, 17, Id. at 15. See also WHO Guidance for Medical Officers, supra note 28, at 5, See Canadian Coalition for Nuclear Responsibility, supra note See WHO, supra note 16, at The Royal Society, Part II, supra note 33, at Id. 41. See Jason A. Beckett, Interim Legality: A Mistaken Assumption? An Analysis of DU Munitions Under Contemporary International Humanitarian Law, 3Chinese J. Int l L. 43 (2004). 42. DU in Kosovo, supra note 3, at

4 NEWS & ANALYSIS 36 ELR ingest DU by eating contaminated soil. 43 Differences in diet throughout the world will have a direct effect on the intake of uranium via ingestion. DU ingestion may be significant over a period of years where local culture and custom indicate a preference for certain foods in which uranium has accumulated. 44 In 2001, the United Nations Environment Program (UNEP) published Depleted Uranium in Kosovo, Post-Conflict Environmental Assessment. 45 The report was the first international effort to assess the environmental impacts of DU ordnance. 46 Although there are currently no signs of contaminated water, milk, or food in Kosovo, the report observed that penetrators found laying on the surface may be picked up by people and kept as souvenirs, resulting in high localized contamination; DU penetrators and particles in the soil will dissolve slowly over decades and contaminate water sources; and penetrators embedded in the ground may be reintroduced into the environment during future construction work. 47 According to another United Nations (U.N.) report focusing on Bosnia-Herzegovina, most of the DU weapons found after the conflict contained plutonium, neptunium, as well as uranium isotopes, all of which are radioactive and harmful to humans and the environment. 48 Evidence of DU in the atmosphere came from lichen samples at several sites of known DU contamination. 49 A couple of structures also contained air and surface contamination. 50 And at least two drinking water samples contained DU in Bosnia-Herzegovina. 51 In Iraq, U.S. officials have conducted studies that clearly show that DU has entered the food chain and has contaminated Iraqi water. 52 Studies conducted by Iraqi scientists have found higher levels than that permitted by international standards for uranium-238 the major ingredient of that toxic soup called DU in the drinking water systems of several cities and in the Tigris River. 53 Vegetables, fish, and meat in southern Iraq are showing levels of radiation contamination as well. 54 IV. Health Impacts of DU Exposure DU is both chemically and radiologically toxic, although the effect that exposure will have on human systems depends on the level, duration, and the nature of the DU, how one was exposed to the uranium, and the radiation dosage level DU in Bosnia, supra note 34, at 127, tbl. A.1 & 128, 130. WHO, supra note 16, at 4, WHO, supra note 16, at DU in Kosovo, supra note Id. at Id. at 25, 29, 30, 34, DU in Bosnia, supra note 34, at Id. at Id. 51. Id. at See The Case for an Immediate Ban on the Military Use of DU, presented by Damacio A. Lopez, Director, International DU Study Team, at a meeting of the European Parliament in Brussels, Belgium, on June 10, 2003, available at g1035.html [hereinafter The Case for an Immediate Ban]. 53. See id. 54. See id. 55. Naomi H. Harley et al., A Review of the Scientific Literature as It Pertains to Gulf War Illnesses, Volume 7: DU (National Defense Research Institute 1999), available at The two most important organ systems affected by DU include the kidney and the lungs. 56 Kidney dysfunction is the main toxic effect of uranium intake in humans. 57 Kidney toxicity can also occur via inhalation of uranium dusts and aerosols. In fact, one study found that it is possible for tank personnel as well as other armored vehicle personnel sustaining hits from DU munitions to absorb enough DU into their bodies to experience complete kidney failure within two days. 58 A number of studies have also demonstrated a link between uranium and lung disease. One long-term study compared the health effects of uranium on employees at the U.S. Oak Ridge National Laboratory plant with employees of a British plant in Springfield, England, working from 1946 to The reports indicate that workers at Oak Ridge received higher dosages of uranium aerosols than the British workers and that they experienced increased incidence of lung cancer. While one long-term study may not be conclusive on the subject, it does indicate an increased risk of cancer with increased dosages of uranium aerosol inhalation. Studies also suggest that DU is responsible for mysterious illnesses. Reports indicate increases in cancers and other diseases associated with radiation and chemical poisoning in Iraq. 60 In addition, many of the soldiers serving under NATO command in Kosovo and Bosnia have become ill and died from what has been termed the Balkan Syndrome. 61 And in the United States, over 250,000 veterans returning from the 1991 Gulf War reported similar symptoms of what is now termed Gulf War Syndrome. 62 Thousands of these veterans have died and over 200,000 of the almost 700,000 veterans of the Gulf War have filed for veterans benefits based on service-related injuries and illnesses. 63 What percentage of these reported cases are directly linked to DU exposure is currently unknown because only a tiny fraction of troops were ever tested. But of the 2,122 U.S. personnel that underwent a DU urine bioassay, less than 12 indicated elevated uranium levels. 64 Some scientists hold the view that exposure to DU weapons may be responsible for birth defects and anomalies among the children of NATO and U.S. military personnel serving in areas where DU munitions were in use. 65 In addition, reports implicate DU as a carcinogen among civilians in Yugoslavia after bombardment with DU munitions in the war in See also WHO, supra note 16, at ; BIER VII Report, supra note See WHO, supra note 16, at iv. 57. WHO Guidance for Medical Officers, supra note 28, at 4, The Royal Society, Part I, supra note 24, at A. Polednak & E. Fome, Mortality Among Men Employed Between 1943 and 1947 at a Uranium-Processing Plant, 23J. Occupational Med (1981); see also D. McGeoghegan & K. Binks, The Mortality and Cancer Morbidity Experience of Workers at the Springfield s Uranium Production Facility, , 20J. Radiological Protection (2000). 60. The Case for an Immediate Ban, supra note Id. 62. Id. 63. Id. 64. Health Affairs Office, Department of Defense, Operation Iraqi Freedom Depleted Uranium Bioassay Results Fourth Semiannual Report and Request for Data Submission (2006). 65. Durakovi, supra note 7.

5 36 ELR ENVIRONMENTAL LAW REPORTER Kosovo. 66 Medical studies suspect DU munitions for the increase in birth defects and birth abnormalities in Iraq. 67 Over 1.5 millions Iraqi soldiers and civilians have died of unnatural causes since the 1991 war. 68 One-third or about 500,000 of them are reportedly children under the age of five. 69 Leukemia, cancer, birth defects, and rare diseases have increased at an alarming rate in Iraq. 70 A. Biological Effect of Ionizing Radiation Because uranium reacts chemically and biologically in much the same way as DU, studies related to uranium exposure are useful in assessing DU s impact on human health. A recent study by the NAS the BEIR VII Report confirmed the linearity of health risks to dosage levels and concluded that there are no safe levels of exposure to ionizing radiation. 71 The study has substantial implications for regulatory enforcement of radiation protection measures in the United States. The objective of BEIR VII was to develop the best possible risk estimate for exposure to low-dose, low-linear energy transfer (LET) radiation in human subjects. 72 The study collected data on the long-term effects of radiation-induced cancer from Hiroshima and Nagasaki survivors. A major argument advanced by DU munitions proponents is that low radiation levels pose little or no negative health effects. 73 The BEIR VII findings do not substantiate this claim; in fact, the report concludes the opposite. 74 Researchers examined radiation dosages that ranged from about zero to about 100 millisievert (msv) (0.1 Sv) 75 of low-let radiation and concluded that even at levels 40 times below the average yearly background radiation exposure of 100 msv, the risks of negative health effect, including cancer, would continue linearly at lower doses down to zero radiation exposure. This means that the smallest radiation dose can cause increased risk of disease with no minimum safe level of radiation exposure. 76 The BEIR VII committee termed this the linear-no-threshold model. 77 Concomitantly, the report states that most cancers begin from a single abnormal cell and that increasing a radiation dose, starting from zero, increases the probability that a given cell will mutate and produce a negative biological result. 78 Negative biological results such as deoxyribonucleic 66. Low-Level Radiation Campaign, supra note Durakovi, supra note The Case for an Immediate Ban, supra note See id. 70. See id. 71. BEIR VII Report, supra note Id. at vii. 73. See U.S. Department of the Army, Handling Procedures for Equipment Contaminated With DU or Radioactive Commodities 16 (2002) (Pamphlet ), available at army.mil/usapa/epubs/pdf/r700_48.pdf (last visited Apr. 17, 2006); see also U.S. General Accounting Office (GAO), Operation Desert Storm, Army Not Adequately Prepared to Deal With DU Contamination (1993) (GAO/NSIAD-93-90), available at BEIR VII Report, supra note 11, at vii. 75. Id. at 593. Sievert (Sv) is the name used under the Système Internationale d Unités for a unit of radiation dose equivalent. 76. Id. at Id. 78. Id. at 431. acid (DNA) breakage, gene mutation or chromosomal aberrations lead to cell mutations or cancer. BEIR VII results suggest a nonthreshold low-dose response for cellular mutations. 79 Additionally, the report finds increased risk of other diseases such as cardiovascular disease and benign tumors from similar low-dose radiation exposure. 80 Thus, the BEIR VII study suggests that the levels of radiation associated with DU are inherently dangerous to humans and the environment. B. Recognized Dangers by the U.S. Military The U.S. military itself recognizes the dangers of DU ordnance. In Pamphlet , Handling Procedures for Equipment Contaminated With Depleted Uranium or Radioactive Commodities, the U.S. Department of the Army sets forth numerous safety requirements for handling what it terms damaged and undamaged radiologically contaminated equipment (RCE). 81 The recommendations clearly point toward the danger of DU. For example, it mandates maximum protection to personnel exposed to DU contaminated material, 82 and that personnel use extreme caution when handling DU rounds, be they fired or unfired. 83 The pamphlet further describes the poisonous effects of internal exposure to DU as well as the external risks of exposure, and it instructs that contaminated soil and water runoff be scraped up and containerized for removal as radioactive waste. 84 Thus, we can deduce from these agency pronouncements that sectors of the U.S. government view DU as a real hazard. V. International Law and Means to Address or Curtail the Use of DU Unfortunately, once DU enters our environment, it may not be technically possible or economically feasible to remove it, as some types of environmental contamination lend themselves to remediation while others do not. There is not much we can do to clean radiation from the air and water once they are contaminated. Once we contaminate the atmosphere with uranium, we can only wait for the radioactive fallout to settle, and there are no known technologies for the removal of uranium from supplies of water such as lakes, streams, and rivers. While cleaning soil in its entirety would be impossible, the removal and/or replacement of contaminated top soil is possible. Yet this could prove quite costly. For example, 79. Id. at Id. at See U.S. Department of the Army, supra note 73. Under Section 2-2. Combat Situations, the pamphlet directs recovery personnel to handle unexploded DU ordnance or contamination with extreme caution. Id. at 2. Further, the pamphlet states that only personnel trained and qualified in explosives operations handling will move or handle these munitions and that FAILURE TO FOLLOW THIS GUIDANCE COULD RESULT IN SERIOUS INJURY. Id. 82. See id. at See id. at Id. at 19. The pamphlet goes on to state that RCE, prior to movement should be covered and wrapped with canvass or plastic tarp to prevent spread of contaminants. Id. at 2. Recovered items should be double bagged and prominently mark suspected radioactively contaminated items. Id. Requirements include contacting several different response teams so they may provide assistance, consolidation points, and preparation for shipment out of the war theater. Id. at 2-3.

6 NEWS & ANALYSIS 36 ELR studies have estimated that in the state of Indiana it will cost between $4 and $5 billion to clean approximately 500 acres at the former Jefferson Proving Grounds in Indiana where around 152,000 pounds of DU munitions were fired in tests spanning over 25 years. 85 The cost for such a cleanup in a foreign country such as Iraq with over 320 tons of DU used in the first Gulf War alone would easily run into the tens of billions of dollars. 86 In Bosnia, Iraq, Kosovo, Kuwait, Montenegro, and Yugoslavia, some areas would require the removal of up to two feet or more of soil due to the depth at which some of the uranium penetrators embedded themselves. 87 Screening and monitoring the health impacts of uranium contamination would be costly as well. So, who should bear the costs of testing, cleanup, and long-term abatement? Moreover, should nations be held responsible not only for the contamination, but for using DU in the first place? The Hague and Geneva Conventions, as well as the precautionary principle, may provide answers to these questions. A. The Hague Conventions and the Law of War The Hague Conventions are international treaties negotiated at the First and Second Peace Conferences at the Hague, Netherlands, in 1899 and 1907, respectively. They are among the first formal statements on the international rules of war. Notably, the term war under the Hague Conventions includes all armed conflict between states, not just officially declared wars. 88 The International Court of Justice established by the United Nations has jurisdiction to hear violations, but member states must voluntarily submit to the court s jurisdiction. The International Criminal Court also has jurisdiction, but the George W. Bush Administration opted out of the agreement granting the court jurisdiction over the United States and its citizens, even though the United States is a signatory to the treaty that created it. The First Hague Peace Conference, which took place at the request of the Russian Czar Nicholas II, sought to ban the use of certain types of modern technology in war. Comprised of four main sections and three declarations, the Hague Conventions prohibited bullets that flatten on impact with a human body (the so-called dum dum bullets), the use of projectiles containing asphyxiating or deleterious gases, and launching projectiles or explosives from the air. 89 The Second Peace Conference, at which time the Hague Convention of 1907 was signed, expanded upon the earlier convention. It consisted of 13 sections and covered many topics, including the exertion of authority by a state over occupied territory and the prohibition of chemical weapons. 90 Part IV of the Hague Convention (Hague IV) was one of the first conventions or treaties to codify the basic principle of customary law of war that the right of belligerents to adopt means of injuring the enemy is not unlimited. 91 From this basic principle comes four others generally recognized by most scholars as the cornerstones of the customary laws of war: (1) military necessity; (2) proportionality; (3) humanity; and (4) chivalry. 92 The principle of military necessity prohibits destructive or harmful acts that are unnecessary to secure a military advantage. 93 Military necessity requires the weighing of the military objective and the advantage gained against the necessity of attacking and destroying the objective. According to Prof. Michael Schmitt, a violation of this principle of military necessity can constitute a war crime, as Article 3 of Hague IV states, a belligerent party shall be responsible for all acts committed by persons forming part of its armed forces. 94 Using an aircraft such as an A-10 tank-killer to destroy an advancing enemy tank is obviously a military necessity; however, it does not follow that using radioactive and chemically toxic ordnance to do so is a military necessity when convention munitions could suffice. The use of DU munitions goes beyond what is militarily necessary in a conflict against an enemy not possessing DU armaments. Proportionality mandates that the force used be in proportion to the military objective. Stated another way, combatants must achieve the destruction inflicted on the enemy to secure their defeat using the minimal amount of force. Under this principle, attacks on noncombatants and their property is prohibited, injuring noncombatants may occur only when enemy forces are nearby, and the injury must be proportionate to the military advantage gained by the attack. 95 One example of an act grossly disproportionate to the military objective would be the June 1938 destruction of the Huayuankow dike. The objective was to prevent the advance of several thousand Japanese forces into China. While China achieved its goal of killing 8,000 to 9,000 Japanese, its objective was met through the destruction of cities, 85. U.S. GAO, Environmental Cleanup, Too Many High Priority Sites Impede DOD s Program tbl. 3 (1994) (GAO-NSIAD ) (indicating that the cost of remediation at the Jefferson Proving Grounds will be in excess of $5 billion dollars). 86. U.S. GAO, Nuclear Waste Cleanup, DOE Has Made Some Progress in Cleaning Up the Paducah Site, But Challenges Remain 2 (2004) (GAO ). 87. DU in Kosovo, supra note 3, at Nicholas G. Alexander, Air Strikes and Environmental Damage: Can the United States Be Held Liable for Operation Allied Force?, 11 Colo. J. Int l Envtl. L. & Pol y 471, 476 (2000). 89. Convention (I) for the Pacific Settlement of International Disputes, July 29, 1899 (entered into force Sept. 4, 1900); Convention (II) With Respect to the Laws and Customs of War on Land, July 29, 1899 (entered into force Sept. 4, 1900), 32 Stat. 1803; Convention for the Adaption to Maritime Warfare of the Principles of the Geneva Convention of August 22, 1864, signed July 19, 1899 (entered into force Sept. 4, 1900), 32 Stat. 1839; Convention (IV) Prohibiting the Launching of Projectiles and Explosives From Balloons, July 29, 1899 (entered into force Sept. 4, 1900), T.S For text of the conventions, visit The Avalon Project at Yale Law School, Laws of War, available at lawwar.htm (last visited Apr. 17, 2006). 90. See The Avalon Project, supra note 89, for a list of all sections and accompanying declarations. 91. Convention (IV) Respecting the Laws and Customs of War on Land, art. 22, Oct. 18, 1907 (entered into force Jan. 26, 1910), 36 Stat [hereinafter Hague IV], available at avalon/lawofwar/hague04.htm (last visited Apr. 17, 2006). 92. See John Alan Cohan, Modes of Warfare and Evolving Standards of Environmental Protection Under the International Law of War, 15 Fla. J. Int l L. 481 (2003); see also Michael N. Schmitt, Green War: An Assessment of the Environmental Law of International Armed Conflict, 22Yale J. Int l L. 1 (1997). Chivalry refers to subterfuge, ruses, and trickery, and does not arise in a DU weapons discussion. 93. Cohan, supra note 92, at ; see also Schmitt, supra note 92, at See Schmitt, supra note 92, at 52; see also Hague IV, supra note 91, art See Cohan, supra note 92, at 492.

7 36 ELR ENVIRONMENTAL LAW REPORTER villages, farms, and top soil, and resulted in the deaths of an estimated 300,000 to 900,000 Chinese lives. 96 Article 23 of Hague IV makes it forbidden to destroy or seize the enemy s property, unless such destruction or seizure is imperatively demanded by the necessities of war. 97 It follows that destroying or contaminating civilian farms, foodstuffs, and drinking water systems is prohibited under Article 23 and runs counter to the military necessity and proportionality principles. Article 23 also made it illegal to employ poison or poison weapons. 98 DU weapons may fall under this proscription because of their chemical toxicity. The United States and other coalition forces, by using DU weapons, have therefore violated the principles of military necessity and proportionality as well as Article 23. Iraqi tanks, bunkers, radar systems, and so on can be destroyed using conventional weapons, thereby leaving the land free of radioactive and chemically toxic waste. This is especially true when coalition forces knew the Iraqi forces did not have DU armaments. At least one commentator has stated that another element of the proportionality test is how likely it is that a certain quantum of damage will occur. 99 That is, with the technical advances in weaponry (smart bombs, precise targeting, etc.), collateral damage to civilian populations is ascertainable using conventional ordnance. With DU ordnance, damage from the spread of uranium dust and from DU fragments remaining in the ground, drinking water supplies, and the soil can neither be anticipated nor controlled once released. The use of such weapons under these conditions cannot be in proportion to the military advantage gained. Contaminating drinking water with uranium for hundreds of years is not in proportion to what was required militarily to subdue the Iraqi forces. Contamination of agricultural lands with DU fragments comprised of radioactive and chemically toxic elements having half-lives of billions of years can in no way be said to be in proportion to the military objective or advantage gained. With over 300 tons of DU ordnance scattered over Iraq, the vast majority of which remains unabated, exposure to the civilian population will continue with severe and long-terms negative consequences. The humanity principle encompasses the military necessity and proportionality principles but is considered separately because of its additional prohibitions. The humanity principle proscribes methods and means of warfare that are inhumane. Prior to the adoption of the Hague Conventions, the St. Petersburg Declaration of 1868 first stated the humanity principle when renouncing the use, in time of war, of explosive projectiles under 400 grams weight. 100 This declaration stated in part: 96. Encyclopedia.com, Huang He (citing The Columbia Encyclopedia (6th ed. 2001/2005)), available at com/html/section/huanghe_ancientfloodsandrecentwaterscarcity. asp; see also International Environmental Law Anthology 193 (Anthony D Amato & Kirsten Engel eds., Anderson Publishing Co. 2005), available at edu/books-2.htm. 97. See Hague IV, supra note 91, art Id. 99. See Cohan, supra note 92, at Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight (Saint Petersburg Declaration), Nov. 29, 1868 (entered into force Dec. 11, 1868), available at the progress of civilization should have the effect of alleviating as much as possible the calamities of war; the only legitimate object that states should endeavor to accomplish during war is to weaken the military forces of the enemy; for this purpose it is sufficient to disable the greatest possible number of men; this object would be exceeded by the employment of arms, which uselessly aggravate the sufferings of, disabled men, or render their death inevitable; and the employment of such arms would be contrary to the laws of humanity. Examples of inhumane method and means of warfare include depriving civilian populations of food, water, and shelter. The humanity principle also prohibits indiscriminate means and techniques of warfare. This includes those techniques that do not or cannot distinguish between civilians/civilian objects and combatants or military targets. 101 Poisoning the drinking water of a civilian population, starving the population, or releasing toxic agents into the air all of which result from the use of DU weapons would constitute violations of the humanity principle. Unless they are cleaned up, fragments of DU weapons embedded in the ground may eventually find their way into the drinking water systems and food sources of civilian populations due to soil, water, and other conditions. In addition to the basic principles of war embodied in Hague VI, the treaty may also be helpful in obtaining compensation from responsible parties. Article 3 of Hague IV provides: A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces. 102 The damage caused by the use of DU ordnance is widespread and will continue to cause damage to the environment for millennia if not mitigated. DU usage, therefore, is precisely the type of indiscriminate means of warfare prohibited under the humanity, proportionality, and military necessity principles of the Hague Conventions and the customary laws of war. B. The Geneva Conventions and Their Additional Protocols Like the Hague Conventions, the Geneva Conventions are international treaties intended to regulate the barbarity of conflicts and war. But unlike the Hague Conventions, which pertain to soldiers, the Geneva Conventions protect those who do not take part in the fighting (civilians, medics, aid workers) and those who can no longer fight (wounded, sick, and shipwrecked troops and prisoners of war). 103 The Geneva Conventions consist of four treaties, with the first c?opendocument (last visited Apr. 17, 2006) See Schmitt, supra note 92, at Hague IV, supra note 91, art International Committee of the Red Cross (ICRC), The Geneva Conventions: The Core of International Humanitarian Law, available at (last visited Apr. 17, 2006).

8 NEWS & ANALYSIS 36 ELR convention being adopted in and all four conventions last revised and ratified in Nearly every country of the world is a signatory nation and has ratified them. 106 Under Geneva Conventions I, II, III, and IV, all signatory states must deem grave violations of the Geneva Conventions a punishable criminal offense. 107 As with the Hague Conventions, individuals or nations may bring a claim against the United States. Indeed, many of the Guantanamo prisoners of war have sued the United States, claiming that they are being held in violation of the Geneva Conventions. Member states may also bring a claim against another member state, but enforcement comes from various international courts, and the United States has refused to submit to their jurisdiction. Numerous suits have already been filed in international courts charging President George W. Bush individually with war crimes and crimes against humanity, but these courts lack jurisdiction over President Bush and the U.S. government. There are three protocols to the Geneva Conventions, although only the first two relate to DU. 108 Protocols I and II, both adopted in 1977, deal with fundamental guarantees of humane treatment, the wounded, sick and shipwrecked, and civilian populations in cases of armed conflict. 109 Under Protocols I and II, DU weapons may fall under the category of banned weapons. The United States has signed and ratified all of the Geneva Conventions. And while the United States is a signatory to Protocols I and II, it has not ratified them. On January 29, 1987, President Ronald Reagan sent a letter of transmittal to the U.S. Senate requesting ratification of Protocol II. 110 President Reagan also enclosed in his transmittal the report of the U.S. Department of State on Protocol II. In his letter of transmittal, President Reagan stated that the United States has traditionally been in the forefront of efforts to codify and improve the international rules of humanitarian law in armed conflict, and that Protocol II was a 104. Amelioration of the Condition of the Wounded on the Field of Battle (Red Cross Convention), Aug. 22, 1864 (entered into force June 22, 1865), available at geneva04.htm Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949 (entered into force Oct. 21, 1950); Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949 (entered into force Oct. 21, 1950); Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949; Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Aug. 12, The full text of these treaties are available at lawofwar/lawwar.htm ICRC, supra note Id Protocol I Additional to the Geneva Conventions, June 8, 1977, Dec. 12, 1977, 16 I.L.M. 1391, 1125 U.N.T.S. 3 [hereinafter Protocol I], available at e636b/f6c8b9fee14a77fdc125641e0052b079; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977 [hereinafter Protocol II], available at bcff1c10c125641e0052b ICRC, supra note Message from President Ronald Reagan to the U.S. Senate Transmitting a Protocol to the 1949 Geneva Conventions (Jan. 29, 1987), available at B.htm (last visited July 11, 2005). positive step toward this goal. 111 The Senate, however, refused to ratify Protocol II. As for Protocol I, President Reagan referred negatively to it in his letter, concluding that the United States cannot ratify a second agreement on the law of armed conflict negotiated during the same period. I am referring to Protocol I additional to the 1949 Geneva Conventions, which would revise the rules applicable to international armed conflicts. 112 President Reagan refused to transmit Protocol I for ratification for two stated reasons: (1) it would automatically treat as an international conflict any so-called war of national liberation ; and (2) would grant combatant status to irregular forces even if they do not satisfy the traditional requirements to distinguish themselves from the civilian population and otherwise comply with the laws of war. 113 There was no mention of the Protocol s prohibition on weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering in the letter. 114 Nor was there any mention of a conflict or reservation with regard to its prohibition against employing methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment. 115 These provisions, along with Articles 54, 55, and 85, constitute the most important aspects of Protocol I as it relates to the use of DU weapons. On January 6, 1999, President William J. Clinton sent a letter of transmittal to the Senate requesting and reiterating his support for the prompt approval of Protocol II. President Clinton stated that if Protocol II s fundamental rules were observed, many of worst human tragedies of recent internal armed conflicts would have been avoided. 116 Again, the Senate did not ratify it. And like President Reagan, President Clinton did not transmit Protocol I to the Senate for ratification. Although the United States has not ratified Protocols I or II, the U.S. Judge Advocate General s Operational Law Handbook provides guidance on the military s position on Protocol I. 117 The handbook states that although the United States has not yet ratified Protocol I, it is ostensibly bound by only the provisions within Geneva Protocol I that reflect customary international law. 118 Those provisions that relate to DU are examined more fully below. 1. Protocol I Several articles of Protocol I provide for the protection of the environment. 119 While many of these articles merely restate the environmental protections set forth under the 111. Id Id Id Protocol I, supra note 108, art Id Senate Committee on Foreign Relations, Hague Convention and the Hague Protocol, Message From the President, 99 Cong. Information Serv. 3851, Jan. 6, See Judge Advocate General, U.S. Army, Operational Law Handbook ch. 11, at (2002) [hereinafter Operational Law Handbook], available at mil/jagcnetinternet/homepages/ac/clamo-public.nsf/0/ 1af f962c085256a f?OpenDocument Id. at See, e.g., Protocol I, supra note 108, arts. 35, 36, 48, 49, 53, 54, 55, 56, 57, 58, 69.

9 36 ELR ENVIRONMENTAL LAW REPORTER Hague and Geneva Conventions, the overall focus of the Protocol I protections go far beyond the environmental protections guaranteed under the Hague and Geneva Conventions. 120 Indeed, it is the first law of war treaty to specifically provide for the environment s protection. Other provisions are particularly relevant to a discussion on DU. One such provision, Article 35, provides: Protocol I, Article 35. Basic rules are: 1. In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited. 2. It is prohibited to employ weapons, projectiles, material, and methods of warfare of a nature to cause superfluous injury or unnecessary suffering. 3. It is prohibited to employ methods or means of warfare intended, or expected, to cause widespread, long-term and severe damage to the natural environment. Article 35 applies to the methods and means of warfare used by combatants. Some have interpreted this to mean that it does not apply to or afford protection to civilians. But a careful reading of the Preamble to Protocol I indicates that Protocol I was drafted in its entirety to reaffirm and further develop the provisions protecting the victims of armed conflicts Further, Article 8, Terminology, specifically indicates that the terms wounded, sick, shipwrecked, medical personnel, and so on refer to both the military and civilians. 122 Therefore, although Article 35 falls under Part III of the Protocol, relating to the Methods and Means of Warfare Combatant and Prisoners of War, it is intended to benefit and protect military personnel and civilians alike, as with all of the Geneva Conventions and Protocols. Looking at Article 35, one immediately notices that methods and means of warfare are not unlimited and that methods of warfare causing superfluous injury or unnecessary suffering are prohibited. DU weapons cause both superfluous injury and unnecessary suffering. DU weapons perform the same function as conventional weapons. They are shaped like conventional weapons and designed to damage or destroy enemy personnel and armored vehicles. The excess or extra injury that these weapons are able to inflict comes from their metallurgical, radiological, and chemically toxic properties. This excess is superfluous because the same result neutralizing the enemy s vehicles, buildings, and structures can be achieved without the use of radiation and chemical toxicity. Radiologically and chemically, DU weapons, upon impact, produce a radioactive aerosol of uranium and other radioactive isotopes near impact and within the penetrated armored vehicles or structures. The radiological and chemical toxicity of DU weapons is not necessary to obtain the objective of destroying the enemy and the enemy s armaments. These two properties are excessive and cause extra injury. Wounded combatants may experience unnecessary suffering through inhalation of poisonous radioisotopes, chemical poisoning, or burn trauma. Burned skin will suffer exposure to radioisotopes and toxic chemicals Operational Law Handbook, supra note 117, ch. 11, at Protocol I, supra note 108, pmbl Id. art. 8. Embedded or left on the ground unattended, DU munitions that did not hit their intended targets also cause unnecessary suffering of the exposed populations. Persons unaware may find these munitions an attractive nuisance, pick them up, carry then around, or collect them. Children may ingest soils contaminated with fragments from DU penetrators. Individuals contaminated will suffer the effects of radiation and chemical poisoning discussed previously. Additional suffering will occur because of the potential for DU to migrate into drinking water systems and the food chain. Soils contaminated with DU may find their way into the roots of fruits, vegetables, and other foods that have absorbed toxins or mutated because of DU weapons. Animal and humans ingesting contaminated foods may suffer physical and genetic effects. Article 55 specifically relates to the protection of our environment. It states: Protocol I, Article 55. Protection of the natural environment 1. Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population. 123 Article 55 focuses on means and methods that are detrimental or prejudicial to the health of the affected population. Article 55 protects the environment used by civilians and thereby serves to protect the well-being and safety of the civilian population. Article 55 s proscription against the use of methods and means expected to cause widespread, long-term, and severe damage to the environment would seem to prohibit the use of DU munitions. Under common definitions, the long half-lives of DU would necessarily cause long-term effects. Some advocates of DU usage state that because of the low-level radiation found in DU weapons, the effects from their use would be nontoxic. But as demonstrated by the BEIR VII study, there is no safe dose of radiation. 124 The prudent course would be to proscribe such weapons unless and until long-term studies can prove that there are no negative effects on the environment, animal, and human health. The fact that the radioisotopes found in such weapons have half-lives of billions of years should greatly concern us all unless and until their long-term effects on the environment can be proven harmless. Should some of the uranium penetrators find their way into groundwater systems, the damage would be severe and prejudice the health and survival of the population. There are currently no known methods of cleaning or purifying water contaminated with radioisotopes on a large scale. Such contamination would then be unquestionably long term. The damage would spread throughout the contaminated water system, be it a river, lake, aquifer, or groundwater. This would be widespread damage counter to the prohibitions of Article 55. The Operational Law Handbook also provides guidance with regard to the widespread, severe, and long-term 123. Protocol I, supra note 108, art BEIR VII Report, supra note 11, at 590.

10 NEWS & ANALYSIS 36 ELR damage as described in Article The handbook states that most experts, along with commenters to Geneva Protocol I, measure long-term in decades (20 to 30 years). 126 The handbook goes on to state that although widespread and severe largely remain subject to interpretation, a number of credible interpretations have been forwarded. 127 It provides that the term widespread probably means several hundred square kilometers, and severe likely refers to any act that prejudices the health or survival of the population. Left alone in the environment, the DU fragments, intact penetrators, and shells used during the two Iraqi Wars will degrade and decay. This decay process as discussed above may potentially go on for billions of years due to the radioactive elements involved. This would certainly qualify as long-term damage. Documented evidence indicates DU usage over many thousands of square kilometers of Iraq and Kuwait during the two Gulf Wars. 128 This would qualify for widespread usage under international law regimes. DU penetrators and fragments remain embedded in the ground and buildings and will remain so unless the parties responsible for this contamination remove them from the environment. And if we follow the definition given in the Operational Law Handbook, severe means any act that prejudices the health or survival of the population. DU fits within this definition. By its very nature, DU is chemically toxic and radioactive. The presence of such weapons left to decay at the whim of nature s forces or left for handling by an unsuspecting child or adult can be a detriment to the health of the population. If the reports of Gulf War veterans with indications of radiation exposure, both internal and external, are believed, and if the reports among the same group regarding reproductive and birth anomalies among their children are believed, studied, and confirmed, the health and survival of the Iraqi populations still living among the DU ordnance are certainly prejudiced. 129 Article 91 provides some guidance with respect to the remediation of contaminated areas. It provides: Protocol I, Article 91. Responsibility A Party to the conflict, which violates the provisions of the Conventions or of this Protocol shall, as the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces. 130 Article 91, therefore, would allow those harmed by the effects of DU weapons to seek compensation from the responsible parties, thereby allowing areas affected by DU to be remediated. Protocol I also prohibits other actions relevant to a discussion on DU. Article 51 of Protocol I proscribes the following: Protocol I, Article 51. Protection of the civilian population 4. Indiscriminate attacks are prohibited. Indiscriminate attacks are: (a) those which are not directed at a specific military objective; (b) those which employ a method or means of combat which cannot be directed at a specific military objective; or (c) those which employ a method or means of combat which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction. 5. Among other, the following types of attacks are to be considered as indiscriminate: (b) an attack which may be expected to cause incidental loss of civilians life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. Article 51 prohibits attacks that are of a nature to strike military objectives and civilians or civilian object without distinction. DU ordnance is not a smart bomb. The military expects that a substantial portion of shells fired from tanks and aircraft will miss their intended targets and lodge in the ground, in homes and other structures, and in the drinking water systems. Anti-coalition fighters are intermingled and dispersed among the civilian populations of Iraq. In the former Yugoslavia, those fighting against the NATO forces dispersed among the villages and civilian populations. Under such circumstances, the use of DU munitions is indiscriminate and without distinction. Article 51, therefore, bans these indiscriminate and excessive acts. Article 85 sets forth the consequences of violating the provisions of Protocol I. It states: Protocol I, Article 85. Repression of Breaches of this Protocol 5. Without prejudice to the application of the Conventions and of this Protocol, grave breaches of these instruments shall be regarded as war crimes. Thus, while the enforcement of international laws has been difficult at best because of the lack of internationally recognized enforcement procedures, Article 85 does provide that grave breaches are war crimes. In sum, parties ratifying and adopting Protocol I could be guilty of war crimes for their use of DU when used in civilian areas without distinction, when the use of DU has a long-term effect on the environment, and when its use renders agricultural lands and water sources useless to the civilian population See Operational Law Handbook, supra note 117, ch. 11, at Id. 2. Protocol II 127. Id See WHO, supra note 16, at See Asaf Durakovi, Medical Effects of Internal Contamination With Uranium, Croatian Med. J., available at org/nucs/du-medical-effects-mar99.htm (last visited Apr. 28, 2006); Rosalie Bertell, Gulf War Veterans and DU, Prepared for the Hague Peace Conference, May 1999, available at du_hague.html (last visited Apr. 17, 2006) Protocol I, supra note 108, art Protocol II, supra note 108, pmbl. Protocol II is also useful in proscribing the use of DU weapons. Protocol II adds additional protection to civilians by emphasizing the need to ensure a better protection for the victims of those armed conflicts Unlike Protocol I, which concerns victims of international conflicts, Protocol II applies to victims of non-international conflicts. Protocol

11 36 ELR ENVIRONMENTAL LAW REPORTER II would therefore apply to conflicts within a single state, for example, the Israeli-Palestinian conflict. Relevant to our discussion of DU weapons is Article 14, which provides: Protocol II, Article 14. Protection of objects indispensable to the survival of the civilian population Starvation of civilians as a method of combat is prohibited. It is therefore prohibited to attack, destroy, remove or render useless for that purpose, objects indispensable to the survival of the civilian population such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works. The use of DU weapons in civilian-populated areas leads to the contamination of agricultural areas, thereby contaminating crops and areas used by livestock for grazing. DU penetrators that find their way to sources of drinking water will contaminate the waters for generations. So while the starvation of civilians may not be the stated purpose for using DU weapons, the total impact of such use may result in the starvation of civilian populations. Where DU ordnance has contaminated the environment, civilians are deprived of objects indispensable to their survival, which is tantamount to purposeful starvation. 3. U.N. Security Council Resolutions Proving that a nation is guilty of violating the Geneva Conventions is very difficult. In the past, where evidence is lacking, the U.N. Security Council has issued resolutions requiring that a nation pay compensation for inexcusable actions. For example, after the Gulf War in the early 1990s, the United States and the international community sought to punish Iraq for its alleged release of oil into the Persian Gulf and for setting on fire the Kuwaiti oil wells. 132 They argued that the release of oil and setting of fires were not a military necessity and, therefore, inexcusable under the Geneva IV. 133 Although Iraq was never actual charged with violating Geneva IV, the U.N. Security Council passed Resolution This resolution held Iraq liable for any direct loss, damage, including environmental damage, and the depletion of natural resources. 135 Resolution 687 also created a fund to compensate parties injured by Iraq during the Gulf War of the 1990s. 136 Based on the use of the Resolution 687 to compensate others for damage to the environment, perhaps this framework might apply to damage resulting from the use of DU weapons. It seems reasonable to argue that the use of DU munitions in Iraq and other countries would fall under 132. Cohan, supra note 92, at Id.; see also Michael N. Schmitt, Humanitarian Law and the Environment,28Denv. J. Int l L. & Pol y 265 (1999/2000); Schmitt, supra note 92, at Security Council Resolution 687 (1991) of April 3, 1991, available at IMG/NR pdf?OpenElement Cohan, supra note 92, at 488; Comment, Wartime Environmental Damages: Financing the Cleanup,23U. Pa. J. Int l Econ. L. 899 (2002) Comment, supra note 135, at 911. damage to the environment, even if not all agree on the severity of the damage. DU is toxic to the environment both chemically and radiologically no matter the concentration or abundance level, and it poses a risk to human health in linear proportion to the radiation dose. 137 Claims could include the cost of abating environmental damage caused by DU penetrators and fragments left on the ground or embedded in structures. These could include expenses directly relating to the removal and disposal of DU fragments as well as for measures taken to clean and restore the environment to pre-du usage levels. This claim, however, might prove difficult if there are no pre-usage data on background uranium levels in the Balkans or in Iraq. Countries harmed might also request compensation for monitoring and assessing the environmental damage caused by DU weapons. Using this money, countries could evaluate and abate the harm and restore the environment to pre-war conditions. Such claims would also provide empirical data needed for making decisions on banning the use of these weapons. Using this same line of argument, countries harmed by DU could file additional claims for public health monitoring and medical screening. Finally, compensation requests for damage to crop areas, forests, and other natural resources compromised by DU usage may also be appropriate. 138 C. The Precautionary Principle The precautionary principle teaches that we should proceed with caution when we lack sufficient data to make an objective decision. The precautionary principle contains an ethical aspect to it that reveals that nations have a moral responsibility to the environment and other humans. 139 In the last 20 or so years, the precautionary principle has been included in many international treaties relating to the protection of our environment. 140 The Member nations of the World Trade Organization included the precautionary principle in Article 5.7 for the protection of human and animal health in the Agreement on the Application of Sanitary and Phytosanitary Measures of The European Community has also adopted the precautionary principle with regard to the environment. In their Communication From the Commission on the Precautionary Principle, the European Commission stated that the precautionary principle has been progressively consolidated in international 137. See BEIR VII Report, supra note See U.N. Compensation Commission, Criteria for Additional Categories of Claims, 3d Sess., 18th mtg., 35, U.N. Doc. S/AC.26/1991/ 7/Rev.1 (1992); see also U.N. Compensation Commission website at United Nations Educational, Scientific, and Cultural Organization (UNESCO), The Precautionary Principle, World Commission on the Ethics of Scientific Knowledge and Technology (2005) See Montreal Protocol on Substances That Deplete the Ozone Layer, Sept. 16, 1987, 1522 U.N.T.S. 3; see also Rio Declaration on Environment and Development, U.N. Conference on Environment and Development, U.N. Doc. A/CONF.151/5/Rev. 1, 31 I.L.M. 874 (1992); Ministerial Declaration Calling for Reduction of Pollution, 27 I.L.M. 835 (1987); U.N. Convention of Biological Diversity, 31 I.L.M. 818 (1992). All of these treaties incorporate the precautionary principle Agreement on the Application of Sanitary and Phytosanitary Measures, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, reprinted in 1994 WL , at **

12 NEWS & ANALYSIS 36 ELR environmental law, and so it has since become a full-fledged and general principle of international law. 142 With regard to DU, the precautionary principle would presume that there is no safe level of exposure to DU weapons until those advocating its use have proven the weapons safety. The rationale for applying the precautionary principle to DU usage finds support in many past examples where the scientific proof of harm trailed the use of a specific harm by years or decades. The dumping of chemical weapons from World War II and other conflicts is one such example where the proof of harm was unestablished until it was too late. The precautionary principle also plays a role with respect to who should pay for cleanup. For example, with respect to the dumping of chemical weapons into the world s oceans, the United States and other countries have discounted the precautionary principle s recommendation to remove and to clean up chemical weapons dumped at sea because it would not be cost effective. Yet this not costeffective argument is one of the reasons for banning the use of DU weapons until proven safe in the first place. Before countries are allowed to dump this toxic and radioactive waste in another sovereign nation s backyard and subsequently claim it is too expensive to clean up, the burden should fall on them to prove the weapons are safe for our environment. In sum, the precautionary principle would place the burden of proof on those advocating DU use to show that there are not short or long-term negative effects to the environment or humans. 143 Using the precautionary principle in support of a ban on DU weapons would save the environment and those at risk of exposure from future arguments that it is too expensive to clean up the decaying fragments of DU weapons, and would force the military to demonstrate safety in the transporting, storage, and battlefield cleanup of DU weapons. The precautionary principle would also require the military to demonstrate no long-term negative effects on the environment from the decay and migration of DU fragments into sources of water and foodstuffs. VI. Recommendations The United States should discontinue the use of DU weapons until it is proven that there are no harmful effects on the environment or humans. The customary law of war, the precautionary principle, and the Hague and Geneva Conventions provide a sound basis for arguing for the prohibition of DU weapons. Each of these conventions and laws appeals to our humanity with the hope that war should be conducted as humanely as possible. Military commanders are accountable for the humane treatment of civilians, noncombatants, and injured combatants. The use of DU weapons is antithetical to these conventions and principles. DU is toxic and indiscriminate. Although not ratified, we know that the United States, through its Operational Law Handbook, considers at least portions of Protocols I and II to be customary international law and binding Commission of the European Communities, Communication From the Commission on the Precautionary Principle 11 (2000), available at library/pub/pub07_en.pdf (last visited Apr. 18, 2006) Joseph P. Tomain, Nuclear Futures, 15 Duke Envtl. L. & Pol y F. 221 (2005) See Operational Law Handbook, supra note 117, ch. 11. Present or future administrations should view Protocols I s and II s environmental provisions as positive steps for protecting both human and environmental welfare and not as impediments to the military s use of its full complement of weapons. As such, the president of the United States should transmit Protocols I and II for ratification and the Senate should quickly ratify them. This would protect the human race and our environment from the radiation and chemical toxicity of DU weapons. Ratification would codify what the Operational Law Handbook already recognizes and would close the 20-year gap since the United States first became a signatory to Protocols I and II. The U.S. Congress must also take action. Concern about DU and its affects on veterans and the environment already exists in Congress. On October 17, 2001, Rep. Cynthia McKinney (D-Ga.), introduced a bill calling for the suspension of the use, sale, development, production, testing, and export of DU munitions pending the outcome of certain studies of the health effects of such munitions. 145 No action has since been taken. On May 17, 2005, Rep. Jim McDermott (D-Wash.) introduced H.R. 2410, the DU Munitions Study Act of The bill has 31 cosponsors and proceeded to the U.S. House of Representatives Subcommittee on Environment and Hazardous Materials on June 3, 2005, and to the House Subcommittee on Military Personnel on June 21, Representative McDermott, a physician who served in the U.S. Navy Medical Corps during the Vietnam War, stated in his introduction of the legislation: The Pentagon says there is no evidence that DU is harmful; yet the Pentagon also says soldiers should wear protective gear, including special clothing and a respirator while using DU. An Iraqi child has no protective gear. The Iraqi people have no respirators. If DU is so safe, why do American soldiers need to wear protective clothing? 147 The proposed legislation indicates: The 1949 Geneva Convention specifically outlines the precautions warring nations must take to avoid harming civilian populations, and it would be a violation of the 1977 Protocol to that Convention to cause superfluous injury or unnecessary suffering to civilians, as DU may cause. 148 Further, the legislation informs us that the U.S. Navy and the British Royal Navy are phasing out the use of DU weapons and that the Canadian Navy has ceased using DU weapons. 149 The fact that these three entities prefer to err on the side of caution should serve as an indication and warning that perhaps we need to do more in the way of studying the effects of DU before we continue to use such weapons. In addition, where it is possible, the cleanup of contaminated areas should be undertaken to reduce the risk of exposure. 150 Cleanup of areas where civilians may meet with DU 145. DU Munitions Suspension and Study Act of 2001, H.R. 3155, 107th Cong., available at H.R.3155: (last visited Apr. 18, 2006) DU Munitions Study Act of 2005, H.R. 2410, 109th Cong., available at (last visited July 4, 2005) Cong. Rec. H3335 (daily ed. May 17, 2005) (statement of Rep. McDermott), available at D?r109:3:./temp/~r10934YpGW (last visited Apr. 18, 2006) H.R. 2410, 109th Cong. 2(11) (2005) Id. 2(9) WHO, supra note 16, at 23.

13 36 ELR ENVIRONMENTAL LAW REPORTER shells, fragments, or particles should be a priority. 151 Areas of contamination should be restricted and remain restricted until after they have been decontaminated and found to be safe for human contact. 152 To ensure a reduction in the level of contamination once an area has been decontaminated, systematic monitoring should continue. The contaminated materials should be disposed of in conformity with appropriate international standards and procedures to remove the possibility of reintroduction into the environment. Long-term monitoring of the environment is necessary in countries where DU munitions use existed. Monitoring will provide additional data on the effects that DU usage has on the environment. This might include monitoring the movement of uranium from projectiles that missed their intended targets as well as the monitoring of buildings struck or destroyed by stray projectiles. There is a need for uranium health screening on a continuous and long-term basis for veterans of conflicts involving DU usage. Soldiers currently serving in areas of DU usage should, as a matter of routine, receive health screening related to exposure to radioisotopes. The government should undertake health screenings for veterans exposed to DU munitions to either DU munitions from either storage facilities or the loading of DU munitions into weapons systems. A health-screening requirement for those veterans responsible for cleanup, demolition, and disposal of vehicles, tanks, and weapons systems contaminated with DU should be done on a long-term basis. This should include those in war theaters and on U.S. military bases. In addition to the screening of military personnel, civilians must also be screened, tested, and monitored for both internal and external exposure to DU in affected areas. Screening of the civilian populations in areas of DU munitions usage should be a priority in order to ensure the health of the community, especially among youth and infants. Young children are especially prone to hand to mouth contact with soil, dust, unexploded shells, and shell fragments. In countries where food is sold, prepared, and stored in open markets, airborne contaminates may be a significant problem. National and international requirements for providing immediate monitoring of personnel exposed or suspected of exposure to above normal levels of uranium/du are also necessary. 153 Likewise, to ascertain any increased incidence of radiation and chemical poisoning, there is a need for extensive screening of civilian populations in areas of DU usage. Last, we also need to study the impacts of DU in order to truly understand what s at stake when we use DU weapons. Studies on the migration of surface water and groundwater 151. UNEP, The Potential Effects on Human Health and the Environment Arising From Possible Use of DU During the 1999 Kosovo Conflict: A Preliminary Assessment 16 (1999) WHO, supra note 16, at The Royal Society, Part I, supra note 24, at viii. contamination are needed, as are studies on the effect of DU fragments upon soils and agricultural areas in order to assess the potential for genetic mutation of foodstuffs due to DU exposure. Studies relating to how humans become exposed to DU are also necessary. These include long-term in vivo studies of the dissolution of DU oxides and their effects on humans. 154 Studies on the internal exposures, doses, and intake of DU from the suspension and resuspension of DU dust in and around contaminated vehicles would provide a base of information from which we can further assess the risks of exposure. 155 Epidemiological studies on the cancer, mortality, and other illness incidence occurring among those military personnel serving or that served in areas of known DU use are also necessary. Long-term studies systematically collecting, analyzing, and reporting of data on pregnancy, birth rates, and congenital malformations should also be conducted. 156 Studies comparing congenital malformations among the children of Gulf War veterans with malformations among the local populations exposed to DU for similarities would be important to show DU as a common link between the two suffering population groups. 157 We also need studies to predict and model varying levels of exposure and radiation doses due to the suspension of DU aerosols, or dust particles in tanks and other vehicles by those countries using or wishing to use DU munitions. Countries that have deployed weapons containing DU should fund these studies, based on the precautionary principles. VII. Conclusion More questions remain than answers regarding the wisdom and legitimacy of using DU weapons. Central to any relevant discussion is whether the military advantages of having DU munitions in the U.S. arsenal outweigh current and future risks to world health and the environment. This Article posits that DU is an inherently dangerous and toxic commodity. Countries wishing to use or continue using DU should first be required to prove that it poses no dangerous long-term effects. To ignore the warnings amounts to a criminal act of war Id. at vii Id See, e.g., Report of the World Health Organization DU Mission to Kosovo 16 (2001), available at ionizing_radiation/pub_meet/en/report_who_depleted_uranium_ Eng.pdf Siegwart-Horst Gunther, Uranium Projectiles: Severely Maimed Soldiers, Deformed Babies, Dying Children (Ahriman-Verlag 1996); see also Siegwart-Horst Gunther, The Gulf War Syndrome, A Parallel to Tschernobyl: Documentation of the Aftermaths of the Gulf War 1991, presented to the international conference on The Cancer Epidemic in Iraq and Its Link to the Allied Use of Depleted Uranium Weapons, London, England, July 20, 1999.