What’s So Terrible About Chemical Weapons?

by Kevin Jon Heller

Yes, the title is intended to be provocative. And yes, I think chemical weapons are indeed terrible. But statements like this — offered by John Kerry in thinly-veiled support for using military force against the Syrian government — still give me pause (emphasis mine):

What we saw in Syria last week should shock the conscience of the world. It defies any code of morality. Let me be clear. The indiscriminate slaughter of civilians, the killing of women and children and innocent bystanders by chemical weapons is a moral obscenity. By any standard, it is inexcusable. And despite the excuses and equivocations that some have manufactured, it is undeniable.

I don’t get it. Why is the indiscriminate slaughter of civilians with chemical weapons unacceptable, but not the indiscriminate slaughter of civilians with ordinary weapons? Why should the US be willing to intervene if chemical weapons kill 1,000 civilians, but not if ordinary weapons kill tens of thousands? I’m with Stephen Walt concerning the US’s apparent belief that the Syrian government did not cross the (blurry) red line until it used chemical weapons:

But why? Nobody should be pleased that Assad’s forces (may) have used chemical weapons, but it is not obvious to me why the choice of weapon being used is a decisive piece of information that tips the balance in favor of the pro-intervention hawks. It’s been obvious for decades that the entire Assad regime was nasty, and it’s been equally clear that the government forces were using lots of destructive military force to suppress the opposition. How else did 70-80,000 Syrians die over the past two years? It’s not as though Assad has been acting with great restraint and sensitivity to civilian casualties and then suddenly decided to unleash sarin gas. Does it really matter whether Assad is killing his opponents using 500-pound bombs, mortar shells, cluster munitions, machine guns, icepicks, or chemical weapons? Dead is dead no matter how it is done.

If there was significant reason to believe that the attack near Damascus was merely the tip of the iceberg — that the Syrian government intended to launch a full-scale chemical attack in the near future, one that could kill hundreds of thousands of civilians — I could understand the obsession with chemical weapons. But I have not seen any evidence of that. And in any case, I’m not sure why we are supposed to believe that the Syrian government would not respond to US military intervention by using chemical weapons even more indiscriminately. (As an aside, why is it that dictators are expected to fight to the death in order to avoid being prosecuted by the ICC, but are expected to roll over meekly in the face of US military might?)

It’s also worth noting that US outrage at Syria’s use of chemical weapons is more than a little hypocritical. Just yesterday, FP.com published a blockbuster article detailing — on the basis of declassified CIA documents — the US’s knowing support for Saddam Hussein’s use of chemical weapons against Iranian soldiers during the Iran-Iraq War. Apparently it is only unacceptable to use chemical weapons when you’re an enemy of the US; if you’re an ally (as Saddam was at that point), they’re fine.

The bottom line, it seems to me, is this: either the US believes in unilateral humanitarian intervention or it doesn’t. If it does, it should have been willing to use militarily force in Syria long ago, when tens of thousands of civilians were being indiscriminately slaughtered by the Syrian government. If it doesn’t, the fact that civilians are now being indiscriminately slaughtered by the Syrian government through the use of chemical weapons should be irrelevant.

Murder by chemical weapons is terrible. But so is any kind of murder. As Walt says, “[d]ead is dead no matter how it’s done.”

http://opiniojuris.org/2013/08/27/whats-terrible-chemical-weapons/

22 Responses

  1. It seems that the main concern (“core interests”) for the Obama administration is not so much the human suffering, but rather “making sure that weapons of mass destruction are not proliferating, as well as needing to protect our allies, our bases in the region”. This would explain the rather arbitrary distinction between killing tens of thousands by indiscriminate warfare by traditional means, and the killing of hundreds by chemical weapons.

  2.  I also get this question from students whenever teaching about prohibited weapons. It’s a hard one.
     I think the different way we treat chemical weapons under international law is partly justified under objective standards  (they cause almost certain death (this was true at least in the past); they cause immense suffering etc.), and partly a product of social construction  (their deployment seems unchivalrous, unfair, and their effects on the human body are an outrage on human dignity). The indiscriminate nature of such weapons is a less convincing reason to me, since one can imagine a WWI scenario in which they are deployed only against combatants.

  3. Seemingly arbitrary distinctions annoy laypeople in particular. Usually, it’s the lawyers who explain such things to us. An example might be: Is it really worse to torture a person than kill them? How about “torture-light” in the interest of saving thousands? Ect.
    I’m no lawyer but the answer would seem to lie in the fact that laws are set by general precedent, not argument by extreme, and if torture (or whatnot) is considered permissible under certain conditions those conditions will likely continue to arise. It is, therefore a hard limit even if it may seem impractical…the reality is that torture is morally, humanely, unquestionable wrong.  
    In a similar vein, currently, some modern weapons exist that make mass extinction a real possibility. Even small groups wielding the right weapons can wipe out more people in an hour than Genghis Khan could in a month. Our conceptions have changed in direct proportion to the new reality. We ameliorate the potential for mass extinction tomorrow by making it psychologically unconscionable today.
    Hence, the basis for the ‘hard line’ on certain weapons. As a matter of practicality, such hard lines might not be enforceable and realpolitik dictates context and perspective. 
     

  4. Remy,

    According to the Washington Post, the US intends to strike targets unrelated to Syria’s chemical weapons arsenal. So that rationale doesn’t seem to work.

  5. Liz – but when we use this explanation, the immediate response is “why then are nuclear weapons not per se unlawful.” Of course, an answer could be that nukes are a rich man’s weapon while chemical weapons are usually used by poor states. But I still intuitively feel that the real reason behind the special treatment is a human dignity related aversion.

  6. The attacks in the Damascus suburbs were not limited to chemical weapons – conventional artillery was used as well, and with great intensity. But by all accounts, there were not hundreds upon hundreds of people killed in the space of a few hours by high explosives. No, all other things being equal,  to do that would likely have required a far, far greater amount of ordnance. Indeed, as far as I can ascertain there is no reported instance of a comparable bombardment – comparable in terms of number of fatalities and concentration in time and place – prior to this in the conflict, and that is despite the fact that artillery and air strikes are routinely used in urban areas. Murder, as you say, is murder, but with respect, the reason why chemical weapons are reviled is obvious.
    Leaving mass killing power aside, there is also the fact that even non-persistent chemical agents such as sarin are capable of causing secondary contamination, thereby posing the likelihood of specially protected persons (medical personnel) being killed or injured when they attempt to provide medical treatment. I am not aware of any other weapon that has this effect, apart from nuclear and biological weapons.

  7. I think Max Fisher persuasively answers this question in this quote from a WP article from back in April (http://www.washingtonpost.com/blogs/worldviews/wp/2013/04/26/yes-its-a-big-deal-if-syria-crossed-the-chemical-weapons-red-line-heres-why/):
    “[T]he reason is about more than just Syria: it’s about every war that comes after, about what kind of warfare the world is willing to allow, about preserving the small but crucial gains we’ve made over the last century in constraining warfare in its most terrible forms.
    One of the few positive outcomes of World War I was the Geneva Protocol of 1925, in which world leaders agreed that they would no longer use chemical or biological weapons. They wanted to change not just international law but international norms, both of which were further codified by the 1972 biological weapons convention and the 1993 chemical weapons convention. The idea was that war, sadly, is going to happen. But if we can all agree not to use chemical weapons, warfare will be less terrible.
    It’s largely worked: With a few notable exceptions, the taboo against chemical weapons has held up. Even in some of the most vicious conflicts of the past few decades, otherwise ruthless armies and rebels have largely refrained from using chemical weapons. That’s a remarkable achievement and one of the world’s few successes in constraining warfare. Keeping Syrian leader Bashar al-Assad’s regime from breaking the chemical weapons taboo is about more than just what happens in Syria: It’s about maintaining the international norm against chemical warfare, about ensuring that present and future wars will not redeploy the awful chemical weapons that made the First World War so much worse than it would have otherwise been.”
    And if you’ll permit me just a little bit of trolling, I posted on this issue myself back in April (http://armscontrollaw.com/2013/04/26/syria-chemical-weapons-and-international-law/) and David Fidler has a very good post up right now that has gotten what I think is a very good conversation going – to which you have kindly contributed, Kevin (http://armscontrollaw.com/2013/08/23/now-what-responding-to-alleged-chemical-weapons-attack-in-syria/)

  8. Immanuel Kant suggested that nations at war must refrain from “such acts of war as shall make mutual trust impossible during some future time of peace,” specifically referring to poisoning as one of the “dishonorable stratagems” that must be “absolutely prohibited.” (Immanuel Kant, To Perpetual Peace: A Philosophical Sketch (1795) in Immanuel Kant: To Perpetual Peace and Other Essays 107, 110 (T. Humphrey Ed., 1983)).
    According to the Saint Petersburg Declaration of 1868 “the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy; … for this purpose it is sufficient to disable the greatest possible number of men; … this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable.”
    One problem with the use of poison or chemical weapons is that they intentionally go beyond disabling, and while doing so they inflict another grave harm to human dignity: they destroy the right to be treated and healed. It is often impossible to find the correct antidote to effectively treat those affected by poison.
     
    The clear prohibition on poisoning was codified already in 1874. Needless to say, many other weighty reasons support the prohibition on the use of such weapons against non-combatants.

  9. I agree with Kevin. History will not remember this kindly if strikes are indeed carried out. The story might look something like this:
    “After two years of doing very little for civilians in Syria, the international community finally decided to send a strong signal to Assad that if he was going to slaughter civilians he should do it using appropriate means. The international community helpfully pointed out that the use of all kinds of conventional ammunition, shrapnel, blunt force would all be considered ok but not chemical weapons. Although some misunderstanding seem to have arisen as a result of previous US encouragement of the use of chemical weapons by Iraq against Iranian troops, it was pointed out that this was a long time ago, that Iran had it coming and that it was really a detail in light of the jus cogens, non derogeable, leaving no time for deliberation prohibition against chemical weapons, which surely deserved some kind of knee-jerk reaction lest the credibility of the US presidential office be diminished. In effect, lest there be any misunderstanding, it was promptly clarified that the strikes were not really about Syrian civilians at all but about enforcing the international law on means of combat which, as every one knows require that exceptional measures be put in place to shape the future international regime on the use of force far exceeding anything that the international community is willing to provide to prevent the actual commission of crimes against humanity and war crimes on a grand scale (forces in presence were also warned that any use of dum dum bullets or perfidy would be met by massive retaliation). In the process of striking Syria it is understood that civilians were hit and that some suffered renewed violence from the regime. However it is hoped that they may have understood that their sacrifice was not in vain and was to be in Humanity’s larger long term interest.”

  10. I really agree. I was thinking, these days, why killing thousands of children (rectius, persons) with chemical weapons instead of, saying, toothpicks should make any difference at all..

  11. many of these apt concerns seem focused on a “humanitarian intervention” type of claim or response.  The latest on CNN is that “[t]he White House offered legal justification, with spokesman Jay Carney telling reporters that the large-scale use of chemical weapons in Syria presented a national security threat to the United States that required a response.”
    Wow, I hope they come up with a better claim if military force is going to be used, because “presented a national security threat” does not comport with the U.N. Charter (arts. 51 or 52 and 53, assuming no application of art. 42).  At least an actual “threat” (if it exists) is a different focus than the Obama doctrine, which has stressed “imminent threat” (and an “imminent” threat logically is not even a present threat, much less the threat of an imminent attack). 

  12. Eyal: and in the 1863 Lieber Code, art. 70 (“The use of poison in any manner, be it to poison wells, or food, or arms, is wholly excluded from odern warfare….”

  13. Well said, Kevin.

  14. There’s much to be said, I think, for Dan’s point above. In other words, despite the moral and legal inconsistency Kevin refers to (‘Why is the indiscriminate slaughter of civilians with chemical weapons unacceptable, but not the indiscriminate slaughter of civilians with ordinary weapons?’), the ban seems to have successfully entrenched a norm that represents some progress in the containment of warfare, a considerable achievement, it seems. Nonetheless, should readers be interested in the argument about the logical inconsistency Kevin notes (and thus indiscriminate aerial bombing, for example, also ‘intentionally goes beyond disabling,’ as well as ‘destroys the right to be treated in healed’), I recommend the chapter, “Shooting Poisoned Arrows: Banned and Accepted Weapons,” in Larry May’s War Crimes and Just War (Cambridge University Press, 2007): 118-139. Perhaps in this case “the best,” namely, moral and legal consistency and coherence, can give way to less-than-the-best, the consequentialist accounting of the Geneva Protocol of 1925 (and subsequent related conventions) serving, at least for now, as sufficient reason for motivating special disapprobation. This does not necessarily amount, however, to determinate or compelling reasons for “humanitarian intervention,” which involve any other number of variables, as more than a few experts here and elsewhere have noted.

  15. Dapo Akande has posted an on-line essay on legality of use of force in Syria, esp. re: humanitrian intervention, over at EJIL-Talk    http://www.ejiltalk.org
    And there are “responses”
     

  16. I am sorry to say that I agree with the above poster noting the difference is that chemiccal weapons are WMD for the poor.
    I would argue that the prohibitions against chemical WMDs went hand in hand with the development of the modern capitalist military state.
    Any State must be against any weapon that would even the playing field between the haves and the have-nots.  We need only look to the late 19th century and the so called “anarchists” and their love of dynamite as “the great equalizer”.  Only through use of such unconventional weapons could a small group take on a giant capitalist military state.
    And every modern state knows it.  I would argue that had we not outlawed chemical weaons perhaps warfare would have gotten so bad that it wouldn’t be tolerated at all.  Its only with modern “rules of war” that we can possibly continue the military industrial complex’s continued rule.

Trackbacks and Pingbacks

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