In November 2011, the armed forces minister Nick Harvey admitted in a parliamentary question that he had inadvertently misled MPs about a Ministry of Defence review that he said had concluded the weapons were permissible on humanitarian and environmental grounds under the Geneva conventions. He told his questioner Katy Clark MP on 26 October that. “Though incorrect, the statement in my letter was made in good faith on the advice of officials, and I apologise for the error.”
The review is now taking place and is due to be completed at the end of February 2012. In the past legal reviews have never been published which means that they are not subject to any further analysis than the review board itself. To this end the Uranium Weapons Network, other interested NGO’s and cross party MP’s have written an open letter to Nick Harvey requesting that he make certain elements of the review available to the public.
Article 36 is a part of Additional Protocol I to the Geneva Conventions 1977. It states:
Art 36. New weapons
In the study, development, acquisition or adoption of a new weapon, means or method of warfare, a High Contracting Party is under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable to the High Contracting Party.
Article 36 of Additional Protocol I was a very welcome addition to the Geneva Convention in that it provided a mechanism to ensure that states adhere to their responsibilities regarding international humanitarian law (IHL). However, it does not impose a formal procedure for conducting reviews, nor does it specifically state that a country has to publicise their reviews.
The UK ratified Article 36 in 1998 and as the UK’s 120mm CHARM3 DU tank munition entered into service in 1999, it became subject to this provision. The MOD have sent the Uranium Weapons Network a copy of their procedures for conducting an Article 36 review. This states the full extent of their obligations, including how and by whom the review should take place. Whilst it is one of only a few states that have set out a formal procedure for Article 36 reviews, it is our firm belief that in order for Article 36 to reach its true potential, the evidence and analysis contained within the review should be part of a more transparent process. Indeed the UK should take this opportunity to set a standard which we hope will be copied by other states.
In his letter to the Uranium Weapons Network on the 9th January, Nick Harvey stated that:
‘…the overall security classification of the review, since it deals with details of military capability, may prevent me from publishing it in its entirety. I have asked for an unclassified and releasable conclusion to be part of the review findings.’
We do not believe that ‘a releasable conclusion’ is sufficient to provide transparency and accountability to this review. Nor do we believe that it will allow for suitable scrutiny of the review board’s analysis and decisions. This is even more important considering that the review board is not an independent or impartial body.
Whilst we have acknowledged that some areas of the review may need to be restricted as they deal with details of military capability, there are parts for which this consideration would not be compromised and have therefore asked for the release of:
• Table of contents
• A list of evidence assessed
There are also sections of the review that are vital to understanding the application of international humanitarian law to CHARM3:
• The section which takes into account its effect to persons, property and secondary effect
• The section which takes into account its impact on public health and the environment
• All information pertaining to whether CHARM3 is capable of being used discriminately
• All information pertaining to future trends in IHL
Further to this, in a written answer Nick Harvey stated:
‘The review conclusion will be published. Legal weapons reviews are privileged legal advice, and may be exempt from publication, as they concern details of military capability. These factors may prevent the publication of the full report.’
Despite the fact that the legal review team is made up of lawyers and therefore any advice they give is privileged, as a client Nick Harvey has the right to waive this privilege and should do so. This is supported by the considerable public concern over DU weapons, recently noted by the MOD in correspondence with the UWN:
“We acknowledge some public anxiety. We are conscious many people are concerned there is a link between the use of DU ammunition and medical problems such as cancers and birth defects. This is an issue taken very seriously by the Government. The cases of illness reported in Iraq and elsewhere are extremely distressing especially when they affect children.”
Further to this, the procedural document states ‘the lawyer conducting the legal review may need to engage widely’. However it does not place an obligation on him to engage widely, thus meaning that a lot of research may be missed. The Campaign Against Depleted Uranium has submitted a list of reports which they believe the review team need to consider when deciding on the legality of CHARM3. They do not have to accept our submissions but the only way we can check if they have done so, and check on what other research they have conducted, is for us to see the parts of the report we have requested.
If you or your organisation would like to become a signatory to the letter please Email Uranium.firstname.lastname@example.org