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Users conclude that depleted uranium weapons are legal and acceptable

The latest US DoD Law of War Manual argues that DU weapons are OK because the UK and France say that they are too.
16 June 2015 - ICBUW

Earlier this month the Pentagon published a 1204 page document on its interpretation of the Laws of War. The project had sought to collate manuals used by different arms of the military into a single document and covers a range of controversial weapons and practices, from drones and herbicides to autonomous weapons, nuclear weapons and landmines. Naturally the document presents the US’s interpretation of the law and this means that at times their views seem somewhat removed from the global consensus. The legality of DU weapons is dealt with briefly and follows a rather predictable pattern.  

Cover, DoD Law of War Manual 2015
The new manual, not as robust and progressive as one might have hoped. 

Overall the manual finds that the use of DU weapons is lawful, even after consideration of the legal requirement on the need to avoid superfluous injury (to troops) and to avoid weapons that are inherently indiscriminate, which is balanced with the military advantage claimed from their use. ICBUW and others argue that DU weapons are potentially indiscriminate because, although they can be targeted, DU particles can spread hundreds of metres beyond the point of impact and remain hazardous long after the end of hostilities. Unfortunately the US sets the bar rather high in its consideration of what constitutes an inherently indiscriminate and therefore unacceptable weapon: ‘For example, the United States regards nuclear weapons not to be inherently disproportionate weapons.’   

Keep saying how effective they are

Beyond the question of discrimination, and the fact that there are no specific rules banning them, the manual makes only three modest points in relation to the use and legality of DU weapons. On use: Depleted uranium (DU) is used in some munitions because its density and physical properties create a particularly effective penetrating combination to defeat enemy armored vehicles, including tanks.’ The point is supported by the claim that DU ‘…will penetrate more armor of a given character and type at a given range than tungsten will, no matter how we design the penetrators.’ The reference is a media briefing from 2003, when the US was enthusiastically justifying the imminent re-use of DU in Iraq to a sceptical world.

The problem with using a radioactive and toxic substance in conventional weapons is that you constantly have to explain why it’s so important to the public and politicians. Following the 1991 Gulf War, boffins at the US Los Alamos Laboratory pointed this out and this gave extra impetus to the energetic public relations campaign that has long been associated with the weapons. It’s been so successful that even critics and campaigners often talk about what scarily effective weapons they are - not something that featured in the messaging on land mines and cluster munitions. Unfortunately for the DU advocates, things have moved on since 2003, both in terms of materials for kinetic energy penetrators (where there are signs of a shift away from DU and towards 'less toxic' materials beginning) and the debate over other modifications you can make to increase the effectiveness of anti-armour weapons.        

The UK says DU’s OK so it must be OK

The manual then gets down to the nub of the question of acceptability by considering the emerging global consensus on DU: ‘States have regarded the use of depleted uranium weapons as consistent with their law of war obligations.’ Unfortunately, instead of considering the 150 or so states that recognise that DU is a potential hazard to human health in voting on resolutions at the UN General Assembly, they instead asked the UK what it thinks. It should be noted that, as a user of DU weapons, the UK is not an entirely neutral party in this matter. Indeed the UK has run its own enthusiastic public relations campaign over the effectiveness and military necessity of DU weapons since the 1970s.  

To support the argument that the UK views DU use as compatible with the laws of war, they use a parliamentary statement provided as part of a ministerial apology which was itself offered after the MoD was found to have not undertaken a review of its DU weapons to assess whether their use was compatible with the laws of war. Needless to say the parliamentary apology-cum-statement assured members of parliament that the hastily arranged review had indeed found that the UK’s DU weapons were perfectly legal. Campaigners asked for a copy of the legal review just to be sure they hadn’t missed anything important but the then minister argued that as it amounted to privileged legal advice it couldn’t be released.

We haven’t found any health risks

The brief consideration of DU concludes with the argument that: ‘extensive efforts have been made to study whether there are harmful health effects from exposure to depleted uranium from weapons that use it, but no such effects have been found.’ Support for this claim is provided from the joint US, UK, French explanation of vote provided at 2014’s UN General Assembly, after they were three of only four states to vote against the DU resolution tabled that year. It provides a list of official agencies that have looked at the DU issue: ‘none of these inquiries has documented long-term environmental or health effects attributable to use of these munitions.’ This isn’t particularly surprising as none of the various bodies mentioned were tasked with investigating long-term health effects, particularly on civilian populations.   

Further arguments are provided with another excerpt from the 2003 archives, this time from Dr. Michael Kilpatrick, of the DoD’s Deployment Health Support Directorate. He cites the US Veterans Affairs longitudinal study into a handful of veterans who were exposed to DU as definitive proof that DU has not and will not harm anyone exposed to it. In 2008 the US Congress’s Research Advisory Committee on Gulf War Veterans’ Illnesses took a somewhat different view, arguing that, while reports on the cohort are often cited to indicate that there are no likely long-term effects of DU exposure, the limited types of information provided and the small number of veterans evaluated leave important questions unanswered: ‘…the small size of the cohort and lack of an unexposed comparison group mean the project cannot determine whether DU exposure is associated with common or uncommon diagnosed conditions of concern such as cancer.’

The focus on veterans also sidesteps the question of the health risks to civilians from exposure to DU. The risks to civilians from the dispersal of DU into the environment and its subsequent lack of effective management should be foremost in any consideration of the legality or acceptability of DU weapons. It is therefore ironic that some of the official reports cited by the DoD above highlighted not only these concerns but also the need for effective post-conflict measures to minimise harm – just as the DoD’s own guidance to its personnel does.  

Missed a memo?

Unsurprisinfly the rather brief overview of the legality of DU presented in the manual does not provide room for discussion of more nuanced aspects of US DU policy, such as the emerging threshold of acceptability governing its use in particular conflicts. As we’ve reported previously, it may be that the recent U-turn over DU use by US aircraft in Syria in Iraq is a sign of a shift away from DU, or it may be related to specific conditions associated with the conflict, such as Iraq’s call for a global DU ban last year.

While it is inevitable that a document like the manual will inevitably stick to simplistic messaging on use and legality, in doing so it misses a more interesting and revealing narrative about the diminishing acceptability of DU weapons.