UK Uranium Weapons Network

Campaigning for a ban on Depleted Uranium weapons

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UWN and CADU Response to ‘flawed’ Article 36 Legal Review

The UK Ministry of Defence (MoD) legal review has concluded that CHARM3 is capable of being used lawfully by UK Armed Forces in an international armed conflict. In a parliamentary statement, defence minister Nick Harvey has failed to respond to concerned citizens and MP’s who have called for the review to be made public.

The Campaign Against Depleted Uranium (CADU), the UK Uranium Weapons Network (UWN) and the International Coalition to Ban Uranium Weapons (ICBUW) continue to demand that the review be published and made publically available.

The legal review was undertaken after it was brought to defence Minister Nick Harvey’s attention that despite assurances to the contrary, CHARM3 the UK’s only DU round has never been legally reviewed.

In regards to the parliamentary statement released on 12th July 2012, a rationale was given for finding CHARM3 legal. CADU has assessed and challenged this rationale:

• The use of DU in weapon systems is not prohibited by any treaty provision.

Although DU in weapon systems is not prohibited by any treaty provision, these weapons have been the subject of a number of domestic and international legislation and resolutions.

– DU weapons were the subject of domestic bans in Costa Rica (2011) and Belgium (2007) .
– DU weapons have been the focus of three UN General Assembly resolutions . The November 2010 resolution called for greater transparency following the use of DU to facilitate research and decontamination. The UK was one of four states that voted against the resolution, which was supported by 148 states, despite an Early Day Motion signed by 93 MPs urging the UK to vote in favour.

– The use of DU weapons has also been condemned by four resolutions in the European Parliament, including a landslide resolution in 2008, which called for a moratorium on DU’s use and efforts toward a global ban . This resolution was supported by 94% of MEPs. Alongside European efforts, a resolution calling for a regional moratorium on uranium weapons was passed in 2009 in the Latin American Parliament .

The legal review asked legal experts to examine current and possible future trends in international humanitarian law. Yet these well supported domestic legislations and international resolutions have gone unnoticed.

• There have been extensive scientifically based studies, undertaken by the World Health Organisation in relation to the long term environmental and other health effects allegedly attributable to the use of DU munitions. In light of the reassuring conclusions drawn by such scientific studies, and noting the continuing military imperative underpinning retention of CHARM3 as a weapon system, it was concluded that use of CHARM3 does not offend the principle prohibiting superfluous injury or unnecessary suffering in armed conflict.

The MoD has referred to the WHO monograph on DU to justify a statement that CHARM3 does not offend the principle prohibiting superfluous injury or unnecessary suffering in armed conflict. Firstly, the question of whether DU munitions will cause superfluous injury or unnecessary suffering in armed conflict depends on whether the use of DU causes enemy combatants unnecessary harm, and whether alternative munitions exists with comparable military utility.

The Royal Society note that there is an increased risk of developing cancer for soldiers who are in a vehicle struck by a DU munitions, and those involved in cleaning up struck vehicle. If it were the case that CHARM3 was the most effective armour piercing round within international law, the health risk posed to enemy combatants through the use of DU might be overlooked.

However, in 2005 a MoD commissioned study found tungsten round combined with a German smoothbore barrel more effective than the current CHARM3 DU round . Most nations use a tungsten alternative to DU munitions. Thus the use of DU in anti-armour weaponry cannot be justified through arguments of military utility.

Secondly, a wider view of WHO conclusions contradicts the MoD’s perception of them as ‘reassuring’. The paper recommends: monitoring the levels of DU contaminating of food and drinking water which might be detected even after a few years; and clean-up operations where contamination levels are deemed unacceptable.

The WHO also notes that:

“Young children could receive greater depleted uranium exposure when playing within a conflict zone because of hand-to-mouth activity that could result in high depleted uranium ingestion from contaminated soil. This type of exposure needs to be monitored and necessary preventative measures taken.”

The monitoring of drinking water and milk as a means to assess civilian exposure was also recommended by the Royal Society , these recommendations have not been taken up by the UK.

• Crew training, weapon design and automated targeting systems mean CHARM3 is capable of being used indiscriminately.

The issue of discrimination in regards to DU weapons has been misunderstood by the MoD legal team here. The potential for DU weapons to be indiscriminate arises from the chemically toxic and radioactive dust that arises once the munitions have been fired, not the ability for the munitions to be fired accurately.

The toxic dust generated by firing DU weapons can travel up to 400m from the hit site immediately following an impact . The inhalation of this carcinogenic and genotoxic dust puts civilian health at potential risk. This risk lasts beyond conflict and if not managed properly has potential for prolonged civilian exposure. Given that DU munitions have been used in urban areas by the UK Armed Forces the potential for civilians to be indiscriminately impacted by these munitions exists.

• Where DU ordnance residues have existed, in the aftermath of an armed conflict, annual potential radiation doses have been shown by scientific study to be well below the annual doses received by the general population from sources of natural radiation in the environment and far below the reference level recommended by the International Atomic Energy Agency as a criterion to determine whether remedial action is necessary. An environmental footprint inevitably will be left by use of DU munitions but one where a credible and authoritative body of scientific evidence (drawn from both international and national sources) has demonstrated there is no proven link between exposure to DU and, neither, a significant risk to public health, nor, a significant risk of any long term damage to the environment.

This statement makes no reference to the chemical toxicity of DU residues, despite the fact that the MoD does recognise DU’s its chemical toxicity and radiation. In fact the US Army’s training manual states that:”the primary concern from a health perspective is uranium’s chemical properties” .

In respect to the environmental footprint of DU munitions, in 2010, the United Nations Environment Programme (UNEP), a credible and authoritative organisation, called for a precautionary approach to DU weapons citing scientific uncertainties in relation to long-term environmental impacts as justification:

“…major scientific uncertainties persisted regarding the long-term environmental impacts of depleted uranium, particularly with respect to long-term groundwater contamination. Because of these scientific uncertainties, UNEP called for a precautionary approach to the use of depleted uranium, and recommended that action be taken to clean up and decontaminate the polluted sites. It also called for awareness-raising among local populations and future monitoring.”

This statement seems to have been ignored by the MoD legal team.

Finally, civilian exposure levels remain unknown, despite calls from UNEP, Royal Society and WHO for long term environmental monitoring to take place, which have been ignored by the UK. By stating that there is no proof that DU exposure leads to public health risks, despite the fact that DU is accepted as hazardous by the MoD presents a poor practise. As UNEP has shown, uncertainty should justify a precautionary approach, rather than ‘no proof’ being used as a justification for potentially harmful action. The legal principle of precaution (Article 57 of 1977 Additional Protocol I) should be taken into account in this instance.

• Finally it was concluded that DU continues to be a material of choice used by states in the manufacture of anti-armour munitions. To date no inter-state consensus has emerged that DU munitions should be banned and the available scientific evidence (developed in the aftermath of the Gulf War in 1991) continues to support the view held by the UK that such munitions can be retained for the limited role envisaged for their employment.

Again it is important to note that a majority of states use tungsten as their anti-armour munitions. The United States, the most prominent user of DU weapons, has taken a long term decision to discontinue using DU in medium calibre rounds. Strikingly, when tendering the contract for the ammunition for the F-35 Joint Strike Fighter, the US listed the presence of “toxic materials such as Cobalt, Nickel, Beryllium or depleted-Uranium” as being non-desirable criteria for potential bidders . They later purchased a tungsten-based round from the German manufacturer Rheinmetall, as they were the only supplier to satisfy all the requirements. Recent reports also suggest that the US is also planning to develop a non-DU successor to its current 120mm DU round appear to confirm this picture.

Available scientific evidence supports the view that major uncertainties exist. International organisations have called for clean-up, long-term monitoring, hazard awareness raising and a precautionary approach; this has not been adequately taken on board by the MoD or UK government.

The rational given noting why CHARM3 has been found lawful are far from robust. CADU finds it irresponsible that the MoD legal team have ignored key international organisations such as UNEP, overlooked wider conclusions of WHO reports, ignored the potential risk the chemical toxicity of DU poses, misconstrued the meaning of the legal principles of discrimination, and unnecessary suffering or superfluous injury, and found CHARM3 capable of being lawfully used UK Armed Forces in an international armed conflict.

We call on the MoD to publically release the parts of the legal review that will not compromise security issues.

Nick Harveys Ministerial statement can be found here:

Article 36 Legal Review and CHARM3

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
• Bibliography

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