Article 36: in depth

What is Article 36?
Article 36 is a part of Additional Protocol I to the Geneva Conventions. These conventions are a part of international law and seek to regulate the conduct of armed conflict and  limit its effects.

The International Committee of the Red Cross (ICRC) are custodians of International Humanitarian Law (IHL) which includes the Geneva  Conventions. According to the ICRC Article 36 on New Weapons states that:

...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...

This means that before entering service all new weapons must be legally reviewed to determine whether it is prohibited by any rules within international law.

The legal review considers each weapon and munition in the context of the following legal principles:

• whether it is prohibited, or whether its use is restricted, by any specific treaty provision or other applicable rule of international law;
• whether it is of a nature to cause superfluous injury or unnecessary suffering;
• whether it is capable of being used discriminately (i.e. distinguishing between legitimate military targets and civilians/civilian objects);
• whether it may be expected to cause widespread, long-term and severe damage to the natural environment; and
• whether it is likely to be affected by current and possible future trends in the development of IHL.

The use of weapons subject to legal weapons review is governed further by the four IHL principles of distinction, proportionality, military necessity and humanity.

Article 36 and DU weapons in the UK
The UK signed Additional Protocol 1 of the Geneva conventions in 1977, but did not ratify it until 1998. This meant that they were not subject to this protocol until 1998.

To justify the lack of the CHARM3 legal review the MoD has stated that they do not apply the obligation retroactively.  However, CADU argue that as CHARM3 is a modification of an earlier DU round which entered into service in 1999 it is therefore subject to a legal review as per Additional Protocol I. Further to this, CADU also argue that as the MOD is now fulfilling its duty to carry out the legal review, CHARM3 DU munitions should be taken out of service until the legality of their use has been determined.

The MoD has revealed that 1800 other weapons which were brought into service before 1998 have also not been legally reviewed. CADU argues that without legally reviewing weapons it is impossible to know whether the weapons the military use are actually legal within the boundaries of IHL, with which our government claims it acts in accordance.

In specific relation to DU, the legal review that is now taking place must consider the legal principles noted above. In particular, it remains very questionable whether DU weapons would fulfil two principles, the principle of distinction and whether its use will be affected by future trends in IHL.

As DU weapons have been shown to release chemically toxic and radioactive dust when fired that contaminate the local area, it would be reasonable to argue that DU weapons are indiscriminate. And, given the recent domestic DU bans in Costa Rica and Belgium, as well as the EU and UN resolutions on DU that have gained majority support, it would be reasonable to suggest that the use of DU weapons will be affected by future trends in IHL.

Significance for UK campaign
This issue of CHARM3 and the legal review process has thrown up a number of issues and is highly significant for our current campaign.

Firstly, the fact that the MoD has been incorrectly stating that CHARM3 has been legally reviewed, reveals the dubious nature of MoD justifications for the continued use of DU, and its lack of commitment toward following the principles of IHL.

Secondly, the revelation has implications for the legality of the use of DU weapons in the 2003 Iraq conflict. This will be followed up in 2012.

Our next step will be pushing for the review to be published, watch this space for more news!