CADU challenges flawed UK legal review of depleted uranium munitions
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. Responding to a parliamentary statement on the issue [available at end of article], CADU argues that armed forces minister Nick Harvey has failed to adequately respond to concerned citizens, civil society and MP’s, who have now called for the review to be made public.
The legal review was undertaken after it was brought to armed forces minister Nick Harvey’s attention that, despite the MoD’s assurances to the contrary, CHARM3 the UK’s only DU round had never been legally reviewed in line with the UK's obligations under article 36 of Additional Protocol 1 of the Geneva Conventions. Article 36 calls for all new weapons to be assessed to ensure that they do not breach international humanitarian law.
The parliamentary statement released on 12th July 2012 offers a rationale for finding CHARM3 legal. CADU has assessed and challenged this rationale. [Ministerial statement in italics.]
- The use of DU in weapon systems is not prohibited by any treaty provision.
Although DU weapons are not prohibited by any treaty provision, these weapons have been the subject of domestic legislation and international resolutions.
– 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 found that soldiers who are in a vehicle struck by a DU munitions, and those involved in cleaning up struck vehicle face an increased risk of developing cancer. 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 that a 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 noted 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 discriminately.
The issue of discrimination in regards to DU weapons appears to have been misunderstood by the MoD legal team. 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 carcinogenetic and genotoxic dust puts civilian health at potential risk. This risk lasts beyond conflict and if not managed properly then 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 chemical toxicity and radiation. 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. The MoD states that there is no proof that DU exposure leads to public health risks, yet acknowledges that DU is accepted as hazardous. 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 acceptance of DU’s undesirability.
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 rationale for CHARM3 being found lawful are far from robust. CADU finds it irresponsible that the MoD’s legal team has ignored key international organisations such as UNEP, overlooked the 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 by the UK Armed Forces in an international armed conflict.
Given the clear flaws in their analysis, we call on the MoD to publically release the parts of the legal review that will not compromise security issues.
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 The Royal Society (2002) The health hazards of depleted uranium munitions Part II, London, March 2002.
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 Training Support Package TA-0310DUAT-001. Tier I: Depleted Uranium General Awareness. United States Chemical School Directorate of Training Development, Fort Leonard Wood. July 1999
 UNEP report to UN General Assembly (2010) Effects of the use of armaments and ammunitions containing depleted uranium, Report of the Secretary-General, A/65/129/Add.1, 17 Sep 2010.
 U.S. Air Force Air Armament Center. ‘Dual Purpose Ammunition for the F-35 Aircraft Gun System (GAU-22A) - Final Requirements List’, April 24, 2008. Federal Business Opportunities Solicitation Number AAC685ARSS080424. https://www.fbo.gov/utils/view?id=f934399b74944eb51de1ec687f89bba8
 ‘NATO Tanks Aim at Wider Target Set with Smoothbore Ammunition’. International Defence Review (January 19, 2012)
- 72 Kb - Format pdfMoDStatement from armed forces minister Nick Harvey on the legal review of the UK's CHARM3 DU munitions, July 2012.