UK reviews of weapons under Article 36
By Elizabeth Minor
An article published in the Guardian, “Armed forces minister sorry for misleading MPs over depleted uranium”, raises serious concerns regarding the rigour of UK practice in ensuring that weapons are not going to cause humanitarian harm. According to the article:
[Armed Forces Minister] Nick Harvey admitted 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.
It subsequently emerged that the review had never happened, and Harvey has apologised for the error, which he said had been made “in good faith”. He has ordered that a review into the weapons’ legality be carried out by civil servants.
Under Article 36 of Additional Protocol I of the Geneva Conventions, the UK has an obligation to assess all new weapons, means of methods of warfare to see if they would fall foul of existing legal obligations in any or all circumstances (see the ICRC’s Guide to the legal review process).
The revelation that such a review had not been carried out in relation to specific depleted uranium munitions (which have long been the subject of concerns regarding longer-term health effects) provides grounds for concern about whether and how such reviews are being undertaken more broadly. In a parliamentary answer of 7th December, the Armed Forces Minister states that:
There are more than 1,800 weapons and systems currently in the UK armed forces inventory which were brought into service before the obligation to legally review against Article 36 in Amended Protocol 1 came into force for the UK in 1999. The obligation is not retrospective. Since 1999 all weapons and equipment entering service have been subject to a formal legal weapons review in accordance with Article 36.
On the surface, this seems to provide some reassurance that such reviews are being undertaken (at least since 1999) – but we have a Freedom of Information Request pending to find out which specific systems have been subject to such reviews.
However, beyond questions about whether such reviews are being conducted or not, there are likely to be much more serious question regarding how such evaluations are being done and in what spirit. The history of UK cluster munitions may again be instructive in this regard. Despite concerns regarding these weapons that dated back to the 1970s it took thousands of civilian deaths and injuries, documentation by non-governmental organisations and extensive advocacy to produce an acceptance that the unreliability and wide-effects of these weapons created a pattern of harm that was unacceptable.
For many years the UK asserted that it had “carefully weighed” the military utility of the weapons against the humanitarian risk, only for it to be revealed that they had made no efforts to understand what these risks might be – and thus the “careful weighing” was a sham (see Landmine Action’s report ‘Out of Balance’).
As we try to get more detailed information about UK practice under the Article 36 obligation, it will be important to compare this with the standards of transparency, evidence and analysis that pertain in parallel contexts. For example, how do the processes of assessment compare with the standards that are applied when considering new weapon technologies for use in domestic policing? Perhaps even more stark would be a comparison with the practices employed when new health technologies are brought online. Although they may seem worlds apart, weapons are after all technologies that are intended to create certain health effects and which also pose risks of unintended effects which need to be understood and avoided. Furthermore, not all of the contexts in which UK forces might use weapons are technically “armed conflicts” and so assessment of these weapons should consider also their implications for use under frameworks of human rights law, including international human rights law.
As scrutiny of this issue develops, it will be important to determine whether systems in place to analyse the risks from weapons are working seriously, in an evidence based way and subject to ongoing review, in order to avoid humanitarian harm. Or will they turn out to be processes of legal box-ticking that fall back on bland reiterations of the legal rules without ever explaining how these obligations are supposed to be understood in practice? See document attached here for an example of this sort of approach.