The Trench


Taking stock of the chemical weapon ban

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On 20–21 March the University of Rome III hosted a roundtable discussion to reflect on the current status of the prohibition on chemical weapons (CW) and the future challenges to that ban. Although convened by the Law Department, the speakers represented an eclectic group of experts with backgrounds in international law, political sciences, chemistry and biology, as well as practitioners. Notwithstanding, the meeting yielded considerable coherence in arguments, with questions, challenges and supplementary insights contributing further to an already rich multi-disciplinary texture.
The Chemical Weapons Convention (CWC) is at the heart of today’s prohibition on CW and their use in armed conflict. However, it does not stand in isolation. In fact, one could build a case that the norm against CW has a variable geometry. Approach it from the ban on chemical warfare, and the 1925 Geneva Protocol and its links to the International Criminal Court or the United Nations—in particular, the UN Secretary-General’s mechanism to investigate alleged use of chemical or biological weapons (CBW)—may take centre stage. Approach it from the angle of scientific and technological developments, and the 1972 Biological and Toxin Weapons Convention (BTWC) emerges as a possible point of entry. Approach it from the threats posed by terrorism and UN Security Council resolutions, including 1540 (2004), with their demands for national legislative action come into play. And so on. The various tools available today have created mutually reinforcing bridges. However, they are also the source of contradictions and large gaps remain between them. As the Rome roundtable brought out, it is not always clear how they can be reconciled or filled.
And then, of course, there are the politics. As we are about to commemorate the centenary of the outbreak of the First World War and are just eight days before the 99th anniversary of the chlorine attack near Ypres, Syria’s civil war shows that humanity still has not been fully able to relegate these weapons to history. And while political leaders of the great powers loudly invoke the inhumanity of poison weapon use, their actions today—just like those during the Abyssinian war in the 1930s, the Yemen war in the 1960s, the Iran–Iraq war of the 1980s—demonstrate once again that other geopolitical considerations, national security interests or domestic political agendas trump halting chemical warfare and holding the culprits accountable under international law. (True, some would argue that the 2003 invasion of Iraq served such a purpose, but alas, few are those who believe the proffered unbelievable unbelievables.)
Unsurprisingly therefore, Syria made up one of the main threads tying the various sessions together. But it was not the only one: other recent issues pose remarkably similar challenges to the future of the prohibition on CW. This blog posting summarises the presentations and offers a few personal reflections on points raised during the discussions.

Chemical bonds in a love triangle

Sarah Cleveland (Columbia Law School) discussed the legal implications of prosecuting the criminal poisoning of an amorous rival under the national law implementing the CWC in the United States. The case, now before the US Supreme Court, revolves around Carol Anne Bond. She attempted to poison her husband’s mistress, Myrlinda Haynes, by applying potassium dichromate on the rival’s car door handles and mailbox. Local law enforcement officials were reluctant to investigate. Since Bond was using a letterbox as an instrument of transmission and had been stealing her rival’s mail, the US Postal Service conducted the criminal probe, which led to an indictment under federal rather than state law. Hence the recourse to the US CWC implementing legislation. The case, as it stands now before the US Supreme Court, deals primarily with whether Congress can act on an international treaty and thereby supercede states’ sovereign authority over local crimes. As such, the issue has entered into an ideologically divisive debate about overreach by the federal government and usurpation of state powers. However, if Congress does have that authority, then the next questions become whether the CWC was intended to address such criminal cases and what broader implications the Bond case may have for the disarmament regime.
Cleveland contended that the Framers of the US Constitution always wanted Congress to have the power to ensure US compliance with international commitments (even then understood to cover both customary and treaty law) on the national level in order to avoid different treatment of the offence in each individual state. The Offenses Clause enumerates express authority to enforce punishment (whether civil or criminal) on individuals. As over the decades interpretation and character of international and domestic law have evolved, Congress has assumed and justified responsibilities with regard to international agreements, and the Supreme Court has ruled consistently in pertinent cases brought to its attention, the Offenses Clause grants Congress the power to impose civil or criminal punishment under a treaty, such as the CWC. Article VII, 1(a) of the CWC requires states to ‘prohibit natural and legal persons anywhere on its territory or in any other place under its jurisdiction as recognized by international law from undertaking any activity prohibited to a State Party under this Convention, including enacting penal legislation with respect to such activity’. Taken together, the elements refute Bond’s claim that her prosecution under federal law intruded on state power, so Cleveland argued.
Whichever way the Supreme Court rules, its decision will have significant ramifications. If it were to accept the applicability of federal law to the Bond case, the next question becomes whether the CWC was intended to deal with crimes of passion, even if they involve poisoning. After all, the convention grew out of a long evolution that began with the codification the customary prohibition of the use of poisons and poisoned weapons in the 1899 Hague Convention with respect to the Laws and Customs of War on Land and the contemporaneous Declaration (IV, 2) on asphyxiating gases. The latter document was the precursor to the Geneva Protocol, which in turn laid the foundation for the BTWC and the CWC. In short, the backdrop to the convention is the comprehensive prohibition of the preparation and execution of chemical warfare in armed conflict between or within states. The 6th preambular paragraph underscores this ambition by declaring that the CWC seeks ‘for the sake of all mankind, to exclude completely the possibility of the use of chemical weapons, through the implementation of the provisions of this Convention’, adding that this complements the obligations assumed under the Geneva Protocol.
After conclusion of the treaty negotiations, the threat of acts of terrorism with CW acquired greater saliency. States responded to the challenge by emphasising national responsibility in the prevention and criminalisation and penalisation of such attacks, inter alia, through national implementation legislation. Thus, UN Security Council Resolution 1540 (2004) reinforced Article VII of the CWC and extended the obligation to all UN members irrespective whether they are a party to the treaty or not. This resolution too places its obligations in the context of preventing the use of non-conventional weaponry in armed conflict or by terrorist entities by affirming in its 1st preambular paragraph ‘that proliferation of nuclear, chemical and biological weapons, as well as their means of delivery, constitutes a threat to international peace and security’. The 4th and 5th preambular paragraphs affirm the Security Council’s resolve ‘to take appropriate and effective actions against any threat to international peace and security caused by the proliferation of nuclear, chemical and biological weapons and their means of delivery’ and its support ‘for the multilateral treaties whose aim is to eliminate or prevent the proliferation of nuclear, chemical or biological weapons and the importance for all States parties to these treaties to implement them fully in order to promote international stability’. The CWC was clearly designed to address international security questions, rather than domestic crime.
As noted earlier, the whole matter arose because the victim, Myrlinda Haynes, had turned to the postal authorities with her complaint based on the contamination of her letterbox and theft of correspondence, and they could only file charges under federal law. Bond’s arrest followed after a postal inspector recorded her applying the toxic chemical on the mailbox with a video camera. However, no other federal statute than the CWC implementation legislation appears to exist under which deliberate poisoning could have been prosecuted.
Article II of the CWC defines a CW very broadly based on the so-called ‘general purpose criterion’. The convention in essence prohibits all use of toxic chemicals and their precursors, except for four categories of purposes under which a toxic chemical and its precursors are not considered to be a chemical weapon (Art. II, 9). Incorporating the CWC’s definition of a CW into national law without bounding the sphere of its application therefore implies that any malicious use of a ‘chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals’ (Article II, 2) can be prosecuted through that law, as has been the case with Carol Anne Bond.
This, however, raises a host of other questions. If one can be prosecuted for using a poison against another person, then what about the prosecution of manufacturing, acquiring and possessing any type of industrial or commercial poison whose purpose falls outside one of the categories of non-prohibited uses listed in Article II? After all, the CWC’s default position is that any toxic chemical that can harm humans or animals is a chemical weapon.
In a previous posting, I commented on Princess Anne’s advocacy to poison badgers as a humane way to prevent cattle herds from being infected with TB. On Arms Control Law, where I cross-post most of my contributions, former CWC negotiator, Sergey Batsanov noted that implementation of the proposal would violate the CWC—Article II explicitly mentions death and harm to animals. He added that he could not recall a single instance during the CWC negotiations when negotiators contemplated culling animals with gas as a legitimate agricultural purpose, in contrast to their consideration of legitimate uses of herbicides, pesticides, defoliants and fertilizers. So, in the wake of Bond v. the United States may we see people in the UK, Europe, etc., invoking national CWC implementation legislation when taking a neighbour to court over poisoning of their cats or dogs? In the United States the move may still require a federal offence, but as always, a stream starts out as a trickle of water springing from the soil that seeks the path of least resistance or greatest opportunity.

Crime and punishment in disarmament

If the Bond case illustrates that disarmament obligations can move in mysterious ways, then the civil war in Syria demonstrates that disarmament and justice may make strange bedfellows. When after the chemical attacks in Ghouta last summer parliamentary democracy effectively blocked retaliatory military intervention and opened the door to disarmament, many people in the Middle East and the West (including international human rights organisations) were up in arms because of deferred justice. Amid all the clamour, disarmament proponents faced the uphill struggle of explaining why weapon elimination is a far more effective option than dropping a few bombs and contributes more to justice by preventing recurrence of the events. Unfortunately, the disarmament message necessarily exceeds the 140 characters of a tweet or the visual impact of a colourful fabricated map.
Beyond the additional mayhem of bombing for the local people and the primal satisfaction of seeing fire and smoke columns caused by screeching jets on 24-hour news reels, what does justice actually entail? As it turns out, bringing the Syrian president and his associates to court for violating international prohibitions on CW use may not be that easy. As the Rome Statute stands now, Thilo Marauhn (Justus Liebig University, Gießen) discerned a fair number of problems as to whether chemical warfare could be part of possible charges before the International Criminal Court (ICC).
Marauhn’s first point concerned the usage of the phrasing in the 1899 and 1907 Hague Conventions (poison and poisoned weapons) and the Geneva Protocol (asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices) rather than the CWC’s more comprehensive definition to refer to chemical weapons. In the final stages of negotiating the Rome Statute, the explicit reference to chemical (and biological) weapons in Article 8 was apparently dropped because some states felt that excluding nuclear weapons from the enumeration was hypocritical. Another phrasing referring to ‘weapons causing unnecessary suffering’ was limited to a listing in an annex, this time to avoid inclusion of nuclear weapons at the demand of the nuclear weapon states. The annex, however, was never agreed. This has left open the question whether phraseology in the Rome Statute and the definition of a CW in the CWC refer to te same thing. Both documents, however, have different purposes. The latter serves a disarmament objective, whereas the former establishes an international institution with the power to prosecute individuals under international criminal law. Therefore it is not possible to accept the definitional scope of one treaty, which has its list of parties, for application by another institution with different membership. In the opposite case, nationals of a state not party to the CWC might have to be tried under a different understanding of a chemical weapon than those from a CWC party. Criminal law does not allow for uneven standards—a principle also underlying the Offenses Clause mentioned by Sarah Cleveland.
Next, he wondered whether Article 8, 2 of the Rome Statute refers only to the use of the toxicants in ‘international armed conflict’, whereas the CWC exhorts states parties to use CW ‘never under any circumstances’, a condition that covers civil wars and other forms of internal armed conflict. The 2010 Kampala Conference extended the coverage of Article 8, 2 to non-international armed conflicts, but the amendment has yet to enter into force. Even so, an amendment to Article 8 only enters into force for the state that has ratified it, regardless of the number of states that have adopted it. The situation again allows for uneven standards.
Finally, Marauhn pointed out that Syria is not party to the Rome statute, which means that according to Articles 12 and 13 of the Rome Statute only the UN Security Council can refer the country to the ICC. Even if such a referral were to take place, it remains an open question whether the Kampala amendment on internal conflicts could be applied to Syria’s CW use against its own population. Indeed, Article 121, 5 of the Rome Statute stipulates that ‘In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory.’ It could thus be argued that Security Council referral must also exclude crimes covered by the amendment. On the other hand, so Marauhn reasoned, an argument could also be made that the provision only applies in cases of state referral to the ICC or the prosecutor investigating on his own initiative. On this basis, he concluded that the ICC could as yet have jurisdiction to prosecute CW use.

Disarming Syria and the Middle East

The roundtable heard three presentations on the process of eliminating Syria’s chemical warfare capacity and one on the problems to convene a meeting to consider ways to remove nuclear, biological and chemical weapons, as well as their delivery systems from the Middle East.
Valeria Santori (Technical Secretariat, OPCW) sketched the legal foundations of the OPCW-UN mandate relating to the destruction of the chemicals Syria had declared to the OPCW, including as regards removal and destruction outside of the country. She went into the details of the decisions by the OPCW Executive Council and UN Security Council Resolution 2118 (2013), and other legal tools relevant for the establishment of the OPCW-UN Joint Mission. A detailed timeline of decisions and deadlines offered insight into the time pressures under which the Joint Mission is to accomplish its tasks under unprecedented conditions of war. It also highlighted how Syria missed some of those timelines by long margins. Santori described the nature of the international disarmament collaboration and ended with a summary of the envisaged destruction operations once the chemicals have been removed from Syria’s territory.
My own presentation discussed Syria’s declarations and looked into the possible reasons for the delays. I expressed my concern about the consequences for the disarmament process from breakdown of US-Russian relations over the crisis in Ukraine, which may take off the pressure from Syria to meet is various obligations in time. I ended with a note of caution on the poor public outreach operations with regard to the elimination of the precursor chemicals at sea in the light of increasing populist comments on harm to the environment.
Mirko Sossai (Rome University III) wondered whether UN Security Council Resolution 2118 challenges international law. After the Ghouta attacks the international community faced different responsibilities with regard to the civil war in Syria: humanitarian concerns, determination of international criminal responsibility, and trying to find an end to the conflict. The US-Russian agreement created the framework for removing Syria’s chemical warfare capacity, which included Syria acceding to the CWC. While the CWC provisions were to provide the overall legal foundation for subsequent actions, the bilateral accord recognised the extraordinary character of the undertaking. The OPCW Executive Council decision of 27 September took those exceptional circumstances into consideration. Resolution 2118 endorsed this decision and set further requirements, but it did not refer explicitly to Chapter VII of the UN Charter. Both documents created a hybrid collaborative–coercive disarmament regime. Sossai argued that as a consequence inspections, rather than building confidence in compliance, became tools to detect non-compliance. To emphasise his point, he referred to the requirement for Syria to allow OPCW inspectors unfettered access and what appears to be a modified challenge inspection procedure in the Executive Council decision. The coercive disarmament dimension can also deduced from the prominence of procedures to address non-compliance. Whereas the CWC has its own compliance enforcement tools, which include possible recourse to the UN General Assembly and Security Council, the Security Council plays a much more important role in the permanent oversight of progress (for instance, by means of monthly reporting by the UN Secretary-General) and responses to possible non-compliance.
Sossai next zoomed in on the destruction of Syria’s CW outside of the country, a process that the CWC does not authorise. Whereas the US-Russian framework agreement and the Executive Council decision of 27 September refer to destruction operations outside of the country ‘if possible’, in Resolution 2118 the Security Council ‘decides to authorize [UN] Member States to acquire, control, transport, transfer and destroy chemical weapons …’. The OPCW Executive Council therefore had resolve the discrepancy in subsequent decisions, including, inter alea, determining that the CWC state party receiving the chemicals for destruction would not be considered a CW possessor. Other decisions addressed Syria’s responsibilities as owner once the weapons have left its territory.
He noted that the UN Security Council can have the authority to override provisions of multilateral treaties—notably through Articles 48, 2 and 103 of the UN Charter—but expressed by way of conclusion his concern that increasingly decision-making on disarmament and arms control matters is shifting towards the Security Council.
Nico Frandi (European External Action Service), also presenting personal views, analysed the impact of the efforts to remove Syria’s CW on the prospects for a zone free of non-conventional weapons in the Middle East. After a brief historical review of the idea to create such a zone and the status of regional participation in global arms control and disarmament treaties, he noted the opposing Arab and Israeli views on how to approach regional security. The former envisages the creation of the zone as a precondition to further discussions, whereas the latter departs from a regional peace and security structure before disarmament can be contemplated. Visions on what types of weaponry need to be included also differ as a consequence of the asymmetric nature of the conflicts.
The current initiative for the zone stems from decisions taken at the 2010 Review Conference of the Nuclear Non-proliferation Treaty (NPT). A meeting due to be held in Helsinki in 2012 has not yet materialised. With the next review conference looming in 2015, the lack of progress thus far risks to have severe negative impacts on global arms control in general and the NPT in particular. Notwithstanding, Frandi discerned some glimmers of hope, including advances in the negotiations with Iran on ensuring the peaceful nature of Iran’s nuclear activities, opportunities emerging from the Arab Spring, and the CW disarmament process in Syria. He noted the EU’s significant financial and diplomatic support in all these efforts.
However, the various areas in which some movement forward can be discerned have not yet been integrated into a broader, region-wide goal of achieving a zone free of non-conventional weaponry. In particular, given that the Syrian CW disarmament initiative rests on a bilateral framework, the deepening US–Russian standoff over the Ukraine and other areas of growing friction may have adverse effects on the successful completion of the project and on regional disarmament as a whole. He therefore hoped that a series of lower-level diplomatic meetings in the Swiss town of Glion could still yield a date for the Helsinki conference before the NPT review conference in May 2015.

Technical challenges to the legal regime

The question of non-prohibited purposes—that is, the circumstances under which a toxic chemical is not considered a chemical weapon under the definition used in the CWC—has already been touched upon. One of those purposes is law enforcement, including domestic riot control. Neil Davison (International Committee of the Red Cross) began his presentation by pointing out that the military and law enforcement interest in riot control agents (RCAs) and so-called incapacitating agents remains. A major distinction between RCAs and the types of chemicals investigated as incapacitating agents exists: whereas the former are characterised by temporary effects that cease as soon as the victim is no longer exposed to the agent, the latter group causes unconsciousness or severe incapacitation by impairing brain function. Incapacitants can pose serious health risks, not in the least because some of the chemicals have a toxicity that approaches the levels of warfare agents, including neurotoxicants. Their use for law enforcement purposes is further complicated by the difficulties of controlling the dosage to which person may be exposed and delivering adequate medical care after usage.
Whereas the CWC defines ‘riot control agent’ and clearly identifies riot control as a non-prohibited purpose (Article II, paragraphs 7 and 9), the use of incapacitating agents is not sanctioned. Given that the convention does not include a definition of ‘incapacitating agent’, any type of toxicant could ultimately be conceived as a law enforcement agent. Such a development would seriously erode the convention. Analysis of various legal instruments and rulings by the international courts have led the ICRC to the conviction that the international legal framework leaves little room for the legitimate use of toxic chemicals as weapons for law enforcement other than of RCAs, as defined in the CWC. It therefore calls on all states parties to confirm a national policy of ‘riot control agents only’ for law enforcement purposes and to have this commitment reflected in national implementation legislation.
In the final presentation of the roundtable, Ralf Trapp (independent disarmament consultant) addressed the challenges to disarmament regimes posed by the convergence of chemistry and biology, and their convergence with other disciplines (such as information technologies and engineering). In the past, CBW were considered under a single banner, but at the end of the 1960s disarmament diplomacy separated both weapon categories as a consequence of differences in perceived military utility. The CWC and the BTWC cover similar scopes, overlap partially, but are completely differently equipped with regard to verification and compliance enforcement. With today’s progress, there is a growing realisation that biology is but another form of chemistry. This is increasingly being reflected in research and industrial production methods.
From a disarmament perspective convergence raises several questions about future regime development, and whether there should also be a growing convergence of the legal regimes prohibiting CBW development and acquisition. Trapp recommended increased consultation between the two disarmament communities and called for growing responsibility of stakeholder communities in industry, research and academia in accompanying the progressing conversion in science and technology in order to preserve their peaceful uses.

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  1. […] [Cross-posted from The Trench] […]

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