Schabas on Chemical Weapons

by Kevin Jon Heller

Bill Schabas makes a great point regarding whether the Rome Statute should be interpreted to directly criminalize chemical weapons as part of its direct criminalization of poisoned weapons:

I know that some colleagues are debating this elsewhere in the blogsphere. The argument seems to be that a broad construction of the notion of poison or poisonous weapons, whose use is criminalised by article 8(2)(b)(xvii) of the Rome Statute, might do the trick and encompass chemical weapons. It is fine for academics to make this argument, but it is a big trap for the United Kingdom, France and the United States and I doubt that they will fall into it. That is because if we consider chemical weapons to fall into the archaic category of poison or poisonous weapons, by some form of dynamic and evolutive interpretation of the Rome Statute, then we will also have to include nuclear weapons. What could be more poisonous than nuclear weapons? And London, France and Paris won’t go along with that.

Exactly! We call it “radiation poisoning” for a reason. Do defenders of the poison-weapons-includes-chemical-weapons position believe that the Rome Statute directly criminalizes nuclear weapons in the same way?

6 Responses

  1. Response…
    “Having” poison (or nuclear) weapons would not be a crimes under ICC Article 8.2 (b) (xvii).  “Employing” those weapons is the crime. I would like to think  that the UK, Britain and U.S stocks of nuclear weapons exist purely for deterrent purposes and not for potential use/employment.

  2. I might add that neutron bombs were designed specifically to release radiation as opposed to destroying targets by explosive energy…

  3. Charles,
    I can’t see how nuclear deterrence is supposed to work if all parties believe the nuclear weapons a state possesses will never in fact be used: how is that a credible threat? A fundamental premise of deterrence logic is the threat of the use of (nuclear) force, is it not? If there is no threat for potential use, how credible is any such threat? Deterrence logic depends on two factors: capability and will, the latter referring to credibility of the threat.
    The next issue of course revolves around the putative success of deterrence strategy and policy. In the case of Israel, for example (a relevant one, given the current situation), it has “not deter[red] Arabs from attacking it; nor is there evidence that it imposed limitations on Arab operational planning.” (In fact, Arab states in the region have never had anything remotely close to a coordinated strategy and policy with regard to Israel, whatever the historical pan-Arab rhetoric of ‘annihilation.’) Among its adverse side effects we note with Zeev Maoz that “it was a major factor in accelerating a conventional arms race and in igniting a nonconventional arms race in the Middle East.” While Israel was developing its nuclear potential (1957-67), “inter-Arab relations were characterized by political and military discord,” its decision to develop nuclear weapons coming at a time “when the actual investment in military manpower and hardware by the key Arab states was marginal, to say the least.” Maoz convincingly argues that “each time Israel actually invoked its nuclear policy in a context of international crisis or war, its implied or explicit threats failed to achieve their intended aim.” In short, “the logic of last-resort deterrence that served as the strategic foundation of the nuclear project is logically self-defeating, because it renders incredible the threat of nuclear retaliation in any other circumstances.” (Maoz, however, does detect a silver lining: Israel’s nuclear policy could serve as ‘a bargaining chip in bringing about a weapons of mass destruction free zone (WMDFZ) in the Middle East, in the context of a comprehensive regional security regime.’)
    As to the alleged success of nuclear deterrence strategy and policy more widely, I recommend one of the conclusions from Ward Wilson’s book, Five Myths about Nuclear Weapons (Houghton Mifflin Harcourt, 2013):
    “The lessons that people learned from the Cold War crises—that nuclear weapons promote stability and that nuclear deterrence works reliably—don’t seem to be well supported by the facts. They seem more like wishful thinking than carefully verified findings. If nuclear deterrence failed in a number of Cold War crises [Ward provides compelling evidence of such failures], then it seems possible that nuclear deterrence is no more reliable than ordinary deterrence. If nuclear deterrence can easily fail, the decision to rely on nuclear deterrence for safety and security is a reckless, foolish choice.”
    Incidentally, Ward also addresses the deterrence–related or –derived arguments about the possession of nuclear weapons promoting stability in general and peace on a larger scale.

  4. I don’t see the problem.  Does Bill think that the U.S. and other listed states should be immune from the reach of international law, especially the laws of war?  Is he a closet-Bushy (Bush-Cheney)? {No, No}  If a nuclear weapon is used and has radiation effects like the neutron bomb, such can rightly be considered to constitute poision or an “analogous” gas, liquid or substance under the 1925 Protocol and unecessary death, injury, and suffering under CIL evidenced in the 1907 Hague Conv. No. IV, Annex, art. 23, etc.  A long time ago, I addressed the illegality of the neutron bomb in ASIL Proceedings, etc.
    The nuclear weapons debate is otherwise far more complex — because some tactical nuclear projectiles can arguably be used without causing lingering death, injury or suffering.  With respect to ICBMs, lets have a more rigorous debate whether any state should actually use them in the future.

  5. I understand that this has been discussed here and on other blogs, but how could any interpretation of article 8(2)(b)(xxvi)-(xviii) of the Rome Statute not include chemical weapons? The language is taken directly from the Geneva Protocol.
    Even if the the provisions are read as extending to nuclear or radiological weapons, I don’t think that the Western nuclear powers should be troubled. The actus reus is simply “employing”. Contrast this with Mexico’s proposed amendment to article 8(2)(b) which would criminalize ”[e]mploying nuclear weapons or threatening to employ nuclear weapons.”

  6. Response…
    When is the last time an Arab state attacked Israel? 1973. 40 years ago. I am sure that you are aware that  the region has changed dramatically in those 40 years. Indeed, it has been Israel that has done the attacking, not only because it has a nuclear weapons deterrent but because it has vast conventional weapons superiority. Of course, the Arab states continue to bluster but haven’t read anything that makes me believe that any of them would really attack Israel now or in the foreseeable future… and yes that includes Iran.

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