(To Lorenzo Midili and Giuseppe Paccione) As the war continues between Moscow and Kiev, news arrives that the government in London decides to supply the Ukraine of bullets inImpoverished uranium, enough to blow the Kremlin out of its seat, (in primis) Putin who warned the West and the Britain with threatening responses promising to resort to the adoption of adequate countermeasures. The Minister of Defense echoed him Sergei Shoigu who stressed that the British decision leaves less and less chance for a peaceful solution before a nuclear escalation between the Russian Federation and the entire West.
Now, it is well known that the international law of armed conflicts prohibits the use of any war instrument on the basis of two general rules: either the weapon is intrinsically indiscriminate or is of such a nature as to cause unnecessary suffering or superfluous injuries, whereby, in both cases, a firearm instrument, which infringes the respective standard, cannot be used as a means of warfare.
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The evaluation of the first of the two rules could be suppressed in a limited period of time. One indiscriminate weapon of war it is considered to be a weapon which cannot be directed against a clear military objective, nor can its effects be limited in time and space, in accordance with the norms of the international law of armed conflicts. The transferred shells are particular for use in tanks challenger II which the London Government is providing to Ukrainian military forces. The British armored personnel carrier challenger II is equipped with a rifled tank gun that is aimed through the laser rangefinder instrument, which adjusts the Cannon before proceeding to fire taking into account the wind pattern, the temperature and the direction in which the target military vehicle is moving. The question that such projectile shells contain depleted uranium, which are used against military targets such as tanks and bunkers, does not diminish their precision, while the precision required by the principle of distinction lacks a clear-cut figure in the context of today's international law, such as a probable circular error defined the radius of a circle centered on the target.
It is therefore necessary to focus on the rule of unnecessary injuries, which requires an understanding of what is and what is not theImpoverished uranium. The latter is nothing more than a fairly dense metal generated as a by-product of enriching natural uranium for nuclear fuel. Depleted uranium is also considered radioactive and, therefore, neither inert nor harmless, since its radioactivity is very low compared to that of the original nuclear material. It is used in armor-piercing bullets to improve their penetration, produced by UK e United States since the seventies of the last century, which have been employed both in the first than in the second Gulf War (in 1991 and 2003), as well as in the Kosovo war (in 1999).
Il Secretary General of the United Nations outlined in a report a few years ago relating to the effects of the use of armaments and munitions containing depleted uranium and theInternational Atomic Energy Agency – so-called AIEA – conducted a range of analyzes on the use of projectile cartridges and depleted uranium bombs, concluding that «the residues of this kind of post-war depleted uranium, dispersed in the environment, do not constitute a radiological risk for the local population". Furthermore, according to the IAEA report, the presence of large fragments or entire depleted uranium munitions could «involve exhibition of radiological significance to persons who are in direct contact with those radioactive materials. Even the United Nations program for the environment - the so-called UNEP –, after evaluating the studies on the impact of depleted uranium munitions on individuals who wore military uniforms, identified the non-clinically significant pathology related to radiation exposure.
The prohibition, pursuant to the jus cogens, of instruments of warfare capable of inflicting unnecessary injury or needless suffering, renders illegitimate only those weapons whose military necessity is compensated by the anticipated injury or inhumane suffering inflicted on a combatant. First, injuries caused by objectively free anti-personnel weapons or substantially greater than those necessary to render an individual wearing a military uniform out of action are unlawful.
The depleted uranium bullets they roll up on impact, further increasing their ability to pierce armor or plate and then ignite upon contact. Depleted uranium is considered a toxic chemical and a hazard to health from radiation when inside the body. However, the military advantages offered by this type of uranium, think of their ability to improve armor-piercing against various types of tanks, is certainly greater than the relatively minimal danger to combatants, which also extends to the risk posed by military personnel assigned to dispose of explosive devices, engaged in post-conflict clean-up.
Any kind of weapon can be used illegally and shell shells from tanks are not excluded. This involves having to understand whether there are any reasons why the British authorities should refrain from transferring them to Ukraine. On this point, we can take the Draft articles on the responsibility of the state of the International Law Commission of 2001, outlining that «a State which aids or assists another State in the commission of an internationally wrongful act, i.e. a violation of international law, is held internationally responsible by the latter for such conduct». In essence, it can be deduced that a State which supports another in the commission of an internationally unlawful conduct by the latter is itself, always internationally, responsible for it in the event that this State acts with awareness of the circumstances of the internationally unlawful act, if committed by that State.
Based on the United Nations Arms Trade Treaty, Britain, being bound by this treaty, as a ratifying state, may not export tank ammunition to any state, including Ukraine, if it knew at the time of authorization that the ammunition would be used in attacks directed against civilian objects or if there is an overriding danger that they would be used to commit or facilitate a serious violation of the international law of armed conflict.
The Treaty de quo demands that the British governmental authorities have calculated the risk that Ukraine may violate its obligations under the international law of armed conflicts, (in primis) during the war between tanks. The Independent International Commission of Inquiry on Ukraine, established by United Nations Human Rights Council, in his latest relationship highlighted a series of attacks with explosive weapons in civilian neighborhoods, where a minimum of indiscriminate attacks were most likely carried out by Ukrainian military troops, not only that, but also highlighted the fact that the Ukrainian military forces discriminatively used cluster munitions, landmines thereby violating the Convention on the prohibition of the use of anti-personnel mines. Such use amounts to war crimes, according to the Criminal Code of Ukraine, whereby any "cruel treatment of prisoners of war or civilians, deportation of the civilian population for forced labour, plundering of national treasures on occupied territories, use of methods of warfare prohibited by international instruments, or any other violation of the rules of warfare recognized by international instruments permitted binding by the Parliament of Ukraine, and even giving an order to commit such actions, – is punishable by imprisonment from eight to twelve years. The same acts accompanied by homicide, – are punished with ten to fifteen years' imprisonment or life imprisonment”, so these serious violations of the norms of international law of armed conflicts should lead to careful reflection».
Nonetheless, if the London government authorities take appropriate mitigating measures, in compliance with Article 7(2) of the UN Arms Trade Treaty, which determines the bond of states, at the time of the investigation, to verify whether and which measures are suitable to mitigate the danger of negative consequences occurring, and a significant monitoring of their use is ensured, this, ergowould not make the decision to transfer depleted uranium shells illegal. The Ukrainian authorities must strictly fulfill their binding obligations under the provisions of the international law of armed conflicts and ensure full accountability for all those who commit gross violations of the law de quo. Clearly, these serious violations carried out by Russian troops, as can be seen from the documentation produced by the Commission of Inquiry on Ukraine and the recent international arrest warrant for war crimes issued by the second Preliminary Chamber of the International Criminal Court, do not dispense with this duty.
In conclusion, it can be asserted that many states, including Italy, are supporting the Ukrainian armed forces, which have been resisting and rejecting the presence of Russian military troops for more than a year, and for this reason the supply of weapons from a part of the international community in favor of the Ukrainian people must remain within the legal parameters and that the Ukrainian government respects its obligations under the international law of armed conflicts; therefore the British government's decision to transfer depleted uranium projectiles to the authorities in Kiev complies entirely with the dictates of the international law of armed conflicts.