Weapons of Mass Destruction (Genocide and Crimes Against Humanity)
Genocide and crimes against humanity are "weapons neutral." They can be effected with simple tools like guns and machetes, or with sophisticated ones like atomic bombs or asphyxiating gas. Thus, in addition to proving the use of such weapons, a prosecutor would need to show the necessary intent against a group in the case of genocide, or the knowledge that the use was part of an attack on a civilian population in the case of crimes against humanity. The efforts to make weapons of mass destruction unavailable for genocide, or any other purpose, will be explored here.
Early Usage of the Term
The term weapons of mass destruction was apparently coined by the London Times in 1937 to describe the bombing and destruction of the Basque town of Guernica by German planes assisting the rebels in the Spanish Civil War. As such, it referred to fairly conventional weaponry, used in massive amounts. It soon came to bear a more restrictive meaning, applying to certain unconventional weapons. Thus, the very first resolution adopted by the United Nations (UN) General Assembly at its initial session in 1946 created an Atomic Energy Commission, whose major task was drawing up proposals "for the elimination from national armaments of atomic weapons and of all other major weapons adaptable to mass destruction." A parallel body, the Assembly's Commission on Conventional Armaments, in 1948 addressed the difference between conventional armaments and weapons of mass destruction. "Weapons of mass destruction," it suggested, "should be defined to include atomic explosive weapons, radioactive material weapons, lethal chemical and biological weapons, and any weapons developed in the future which have characteristics comparable in destructive effect to those of the atomic bomb or other weapons mentioned above." Physicist Albert Einstein and mathematician/philosopher Bertrand Russell had hydrogen bombs particularly in mind when they issued their so-called Pugwash Manifesto in 1955, calling on scientists to "assemble in conference to appraise the perils that have arisen as a result of the development of weapons of mass destruction."
After the terrorist attacks in New York City and Washington, D.C., in September 2001, which some categorized as crimes against humanity, the term seemed again to acquire a broader connotation. Now it included the use of planes being deliberately crashed to wreak death and destruction, and suicide bombers attempting indiscriminate killing. In this respect, weapons of mass destruction came close to the concept of terrorist bombing, criminalized by treaty. The 1998 International Convention for the Suppression of Terrorist Bombings prohibited the use of explosives or other lethal devices in public places. "Explosive or other lethal device" was defined as an explosive or incendiary weapon or device that is designed, or has the capability, to cause death, serious bodily injury, or substantial material damage; or a weapon or device that is designed, or has the capability, to cause death, serious bodily injury, or substantial material damage through the release, dissemination, or impact of toxic chemicals, biological agents or toxins or similar substances, or radiation or radioactive material. The definition, however, in its narrower meaning, referred solely to nuclear, biological, and chemical weapons, the kind that
As in 1946, the General Assembly is still concerned with the general issue, and the problem may be proliferating. The Assembly's provisional agenda for its sixtieth session in 2005 includes an item on "the development and manufacture of new types of weapons of mass destruction and new systems of such weapons."
Banning Barbaric Weapons in the Law of Armed Conflict
Eliminating specific kinds of barbaric weapons (and certain other tactics of war) has a long history in codes of chivalry and customary international law. Efforts to proscribe weapons of mass destruction (especially through the negotiation of treaties) are thus part of a broader movement that has defined the objects to be banned in various general (and overlapping) categories. Multilateral treaty-making concerning barbaric weapons began with the Declaration of St. Petersburg in 1868 and has proceeded at two levels of abstract thought that might be described as principles and rules.
At the level of principle are propositions such as "means of injuring the enemy are not unlimited," or "it is forbidden to use weapons of a nature to cause superfluous injury or unnecessary suffering, or which fail to discriminate between soldiers and civilians." The 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction (hereafter referred to as the Biological and Toxin Weapons Convention) describes the use of such weapons as "repugnant to the conscience of mankind." Sometimes, these principles are promulgated as standards to govern broad categories. Other times, they lead to narrow agreement that a particular weapon is illegal, but a very similar practice is perhaps not. So it was that the Declaration of St. Petersburg avowed that the legitimate objective of war, to weaken military forces of the enemy, "would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable." Notwithstanding this generality, the parties agreed specifically only to "renounce, in case of war among themselves, the employment by their military or naval troops of any projectile of a weight below 400 grams, which is either explosive or charged with fulminating or inflammable substances."
Parties attending the First Hague Peace Conference in 1899 agreed not to use expanding bullets or "projectiles, the sole object of which is the diffusion of asphyxiating or deleterious gases." At the Second Hague Peace Conference in 1907 participants concurred that it was "especially forbidden . . . to employ poison or poisoned weapons." As "especially forbidden," in more general terms, was the employment of "arms, projectiles, or material calculated to cause unnecessary suffering." These became the fundamental principles of the laws of armed conflict, or international humanitarian law.
Although the term weapons of mass destruction had not yet been coined, the first treaty that can be regarded, in retrospect, as addressing them is the 1925 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (otherwise known as the Geneva Protocol of 1925). The Protocol proclaims, "the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids materials or devices, has been justly condemned by the general opinion of the civilized world." It then adds: "The High Contracting Parties, so far as they are not already Parties to Treaties prohibiting such use, accept this prohibition, agree to extend this prohibition to the use of bacteriological methods of warfare and agree to be bound as between themselves according to the terms of this Declaration." Many member states ratifying the Protocol entered a reservation (or exception) that turned it into a promise not to be the first in a particular conflict use the prohibited weapons, but left retaliatory use open. Implicit was the assumption that it was legal to develop and possess such weapons, although illegal to use them in making the first strike (or at all). Thinking about development and possession leads a state inevitably to contemplating arms control or disarmament, rather than merely forbidding use.
Sophisticated weapons, such as nuclear bombs, require testing (or they did until the recent development of sophisticated computer models significantly obviated that need). Both the 1963 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, and the 1968 Treaty on the Non-Proliferation of Nuclear Weapons addressed, albeit weakly, the development and possession of nuclear weapons. The 1963 treaty still permitted underground tests, and the 1968 treaty acknowledged the nuclear status of the five countries that originally possessed the bomb, although this was subject to an as yet unrealized obligation to negotiate disarmament. Nuclear weapons were also addressed in numerous condemning resolutions adopted by the General Assembly that many diplomats and commentators believed represented international customary law in declaring their use illegal against people. A majority of the International Court of Justice (ICJ) took a different view, however, of the status of these resolutions in the 1996 Advisory Proceedings on the Legality of the Threat or Use of Nuclear Weapons, saying nuclear weapons were not totally illegal in themselves; each case turned on proving the necessary breach of more general rules. In a 1963 resolution adopted unanimously by acclamation, the General Assembly solemnly called on states "to refrain from placing in orbit around the earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, installing such weapons on celestial bodies, or stationing such weapons in outer space in any other manner."
A more comprehensive assault on development and acquisition of certain weapons of mass destruction is the 1972 Biological and Toxin Weapons Convention. It bans a type or quantity of biological agents or toxins that is not justified for prophylactic, protective, or other peaceful purposes, and equipment or means of delivery designed to use them in armed conflict. Parties undertake to destroy or divert to peaceful purposes, not later than nine months after the treaty's entry into force, all agents, toxins, weapons, equipment, and means of delivery in their possession or under their jurisdiction or control. The reference to prophylactic, protective, and other peaceful purposes has created an opportunity for some slippage, as the Convention does not provide for inspections or other means of enforcement. In the early 1990s, when Russia revealed the extent of cheating by the former Soviet Union and the international community became concerned about Iraq's pursuit of weapons of mass destruction, negotiations began for a Protocol (or amendment) to the Convention that might provide for monitoring. These efforts collapsed early in the twenty-first century when the administration of President George W. Bush took a different approach to inspection regimes that could be potentially applied to the United States itself. Instead, the National Strategy to Combat Weapons of Mass Destruction, a policy statement issued by the U.S. government in December 2002, emphatically asserts a right to use overwhelming force, including nuclear weapons, and even preemptively, to counter threats of use of any kind of weapon of mass destruction against the United States or its allies.
Enforcement Mechanisms in Treaties Banning Weapons
The 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (often referred to as the 1993 Chemical Weapons Convention) contains enforcement mechanisms that could potentially be highly intrusive. It established in the Hague an international organization, the Organization for the Prohibition of Chemical Weapons (OPCW), whose functions include verification of compliance. The Convention's basic obligations are starkly comprehensive:
1. Each State Party to this Convention undertakes never under any circumstances: (a) To develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly chemical weapons to anyone; (b) To use chemical weapons; (c) To engage in military preparations to use chemical weapons; (d) To assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Convention. 2. Each State Party undertakes to destroy chemical weapons it owns or possesses, or that are located in any place under its jurisdiction or control, in accordance with the provisions of this Convention. 3. Each State Party undertakes to destroy all chemical weapons it has abandoned on the territory of another State Party, in accordance with the provisions of this Convention. 4. Each State Party undertakes to destroy any chemical weapons production facilities it owns or possesses, or that are located in any place under its jurisdiction or control, in accordance with the provisions of this Convention. 5. Each State Party undertakes not to use riot control agents as a method of warfare.
Paragraph 5's prohibition of riot control agents in warfare settles an issue much disputed in earlier international practice. The Convention defines riot control agents as chemicals that "can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure." If riot control agents are banned specifically in war, however, by implication they may be legal in domestic law enforcement. At a review conference on the Convention in 2003, the International Committee of the Red Cross (ICRC) expressed concern about increasing interest among police, security, and armed forces in incapacitating chemical agents. The ICRC fears that the development of new incapacitants domestically could undermine both the Convention and its underlying humanitarian norms. If it is "legal" for a state to use a particular weapon against its own people in situations short of armed conflict, the inhibitions against using it in armed conflict lose some of their power.
A more general problem also exists. Chemicals, like guns and machetes, may have dual uses (good and bad), and some chemicals, benign in themselves, may be precursors to weapons of mass destruction. Thus, the 1993 Convention, like treaties dealing with nuclear and bacteriological weapons (and narcotic drugs, for that matter), must strike a complex balance between licit and illicit uses.
The Convention is enforced through self-reporting, by routine inspections, and in requests for clarification that parties may make to question other parties' compliance. Each party can also request an onsite "challenge inspection" of any facility maintained by another party "for the sole purpose of clarifying and resolving any questions concerning possible noncompliance with the provisions of [the] Convention." OPCW has limited resources but infinite potential for strong enforcement and as a model to be applied to other weapons.
In spite of their clear illegality under the laws of armed conflict, the use of biological and chemical weapons is not among the war crimes within the jurisdiction of the new International Criminal Court (ICC), formed by the Rome Statute of 1998. Their use, along with that of nuclear weapons, was included in early drafts of this instrument. When it became apparent that states which were nuclear powers would not accept the reference to nuclear weapons, some developing countries insisted that less technologically sophisticated weapons of mass destruction should not be included either. Nonetheless, the absence of these weapons from the ICC's jurisdiction does not affect their illegality under general international law.
At a historic meeting at the level of heads of state and government on January 31, 1992, the Security Council asserted that the "proliferation of nuclear, chemical and biological weapons constitutes a threat to international peace and security." When the Council reexamined the subject in late 2003, it was amid fears that nonstate actors as well as outlaw regimes were seeking to acquire, traffic in, or use weapons of mass destruction. As President Bush told the General Assembly in September 2003: "The deadly combination of outlaw regimes and terror networks and weapons of mass murder is a peril that cannot be ignored or wished away." He also noted the United States had worked with Russia and other former Soviet states to dismantle and destroy or secure weapons and dangerous materials left over from another era. (The nuclear weapons abandoned in Belarus, Kazakhstan, and Ukraine were of particular concern.) He added that eleven nations were cooperating in a "proliferation security initiative," aimed at interdicting lethal materials in transit.
A significant feature of this new landscape is the recognition of weapons of mass destruction not only as an arms control problem, but also as a matter of international criminal law that merits the same kind of legal analysis as efforts to address terror and narcotics. Accordingly, there have been proposals for the Security Council, as well as the General Assembly, to call on states to adopt and enforce laws that would prohibit the involvement of nonstate actors with such weapons or delivery systems for them.
SEE ALSO Gas; Iraq; Nuclear Weapons; War Crimes
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Roger S. Clark