Let me start with noting the obvious: I have some seriously awesome, smart, amazing friends. And the more obvious: not all of them know about international humanitarian law, or more specifically the laws of armed conflict.
This is partly the product of where I grew up: the discussion on international law in the US is a bit crazy. As one of my colleagues and I were taking the mick out of each other this morning, he said something I could really argue with: "You can't go to an American on international law - they don't even think it exists!" (Okay, I realise no one will laugh at that unless they actually do international law; and in fairness, he went on to a much more personal and funny insult, but that was his set-up.).
This is partly the product of our history. We were isolationists. When we stopped being isolationists, we were a world superpower, and then we were the world superpower. So we tend to think we're not bound by anything other than whatever came out of the POTUS's mouth (or the SCOTUS's mouth, and sometimes Congress's maybe; and if you're Rick Perry, you think you're only bound by the latest thing to have come out of your own mouth).
But also, lots of other, non-US people just don't about the laws of armed conflict. So the past few weeks, I've seen a lot of facebook posts / comments along these lines:
Now, morally, I kind of agree with the first comment, but legally, there's answers to all of these questions and the answers relate to the laws of armed conflict. Now, I'm not going to suggest an answer to the problem of Syria but I think Syria presents a really good opportunity for people who don't pay attention to international law as part of their job to start to understand international law just for their own benefit. So, here's my super brief answer on "what makes chemical weapons so special." I could write a longer piece, but I can only justify about 20 minutes of procrastination on my PhD chapter. Also, as I wrote, I could hear the voices of my friends who study this in my head, so I have a few notes for them in [brackets]. Just ignore those if you don't study this.
Let's start with some basics:
There are two types of international law: treaties and customary. Customary international law develops when states act in a consistent manner and do so because they believe they are legally bound to do so even without a treaty. To see the consistent state manner, you can look to both action and omissions, and can rely on public statements and declarations that accompany either the act or lack of action. Once something is customary international law, it's binding on all states except those that have consistently objected to the development of this rule. This can develop slowly taking decades or it can be quite quick.
Understanding how customary international law works:
To give an example (which is really really really not real), let's imagine that tomorrow, the US decided that because of all the peanut allergies (which I know are really really real), it was going to ban the growing, selling, producing or importing of peanuts to protect human life. Then it started telling other states they should do it too, that ultimately if they take the right to life seriously, they must do this. And a few other states - hippy-dippy liberals like Canada, NZ and France and Sweden - decided to ban peanuts out of respect for the right to life. That would not be enough for customary international law. But, if over the course of about 3 years, almost all the other states - say, 135 of the 193 UN members - all worked to ban and eradicate peanut use as a threat to human life and health, and they banned sales, and they came out with statements saying that the production of peanuts was illegal not just within their own states but across the world. Then, with 135, you would see an emerging norm or an emerging custom. No one is quite sure if it's really custom or not, but it sure looks like it's getting there. And then by year 5, 155 countries have done this. They're all doing the things to ban peanuts and stop their transport. And of the less than 40 countries who haven't, 20 don't actually use or have peanuts in their countries anyhow. So they haven't taken any steps because they're looking at the rest of the world going "But we've never even had peanuts, they've never been in our borders, why is everyone so obsessed with peanuts?" So this takes us down to 20 states that are relevant to the peanut discussion and who aren't banning their import. Ten of these states just don't care because they wish we would focus on something more important like world peace or the real eradication of polio. But the other 10 do care and every time it comes up they go, "No. This isn't a real rule. You're all anti-peanut imperialists and we will not be bound by this rule." At that point, there's enough consensus that the rule becomes a rule for everyone - the 155 that agreed, the 20 that it was never relevant to and the 10 it was relevant to but didn't care - except for the 10 states that continue to say it's not a real rule. Now, let's assume Thailand with all their yummy peanut sauce is one of the countries that consistently objected so they aren't bound.
So what happens with Canada suddenly starts trading Thailand minerals for peanuts? The law isn't binding for Thailand but it is for Canada, who was actually one of the first to help make this a law. Canada is violating international law. They haven't signed a treaty, but they also weren't consistent objectors when the customary rule was developing. So they have to live by the rule that was established. They can't come in later and go, "Oh, shoot, but we don't like that rule anymore, so we won't abide by it." They can, on the other hand, try to create a new rule. But they can't just ignore the old one.
How Chemical Weapons are Customary International Law.
So, those are the two types of law. Now why this matters to chemical weapon use. Syria isn't a party to the relevant treaties [note to IHL-nerds: yes, some could argue that the use of chemical weapons is torture and prohibited under Common Article 3 of the Four Geneva Conventions, but this post isn't for you, so stop trying to make it all complicated; yes, Dan and Sukrit, I'm talking to you.]. So, Syria can only be bound to not use chemical weapons on civilians if there's a relevant customary international law.
And there is. (Otherwise, this post would've ended a really long time ago.) The laws of war have two relevant rules for this that are not customary for all wars. [note to IHL-nerds: yes, I know wars and armed conflicts are different, but again, this post isn't for you, so stop being nit-picky. Dan, Sukrit, and Catherine.]
Now, war is bad. Everyone knows that. The laws of war are intended to make war less bad, meaning less harmful to the innocent civilians and as humane as you can make war for the people fighting it. It accepts that people will die. The laws accept that people will die but it requires states to try to make sure people only die to the extent necessary, and if they do die it's from as humane an act as possible. I know it's perverse, but countries are sometimes perverse: they don't want the effects of war, but they like blowing things up and conquering each other. So to hit the right balance, they developed rules that limit the impact on civilians.
The two customary laws that are most relevant here are the obligations when targeting, and the use of weapons that are designed to cause superfluous harm.
When you're fighting a war, the country has to distinguish between military and civilian objects. Military objects are those that by their nature, use, purpose or location make an effective contribution to the military effort of the other side, and whose destruction in whole or in part in the circumstances ruling at the time will help your side militarily. It's judged by the circumstances ruling at the time, so if you have a big building and last week, the military was housing all their artillery, last week was a military target and you could try to destroy it. But if this week, it's now a flower garden, it's no longer a military target and you can't hit it. You can make mistakes, but your mistakes should be in good faith, so you should try to confirm in advance of launching a strike that the building is still being used for military housing. This is judged by the standard of your best efforts to the extent that doesn't compromise your military objective and advantage. So you know the building was military housing, you've asked some people, you've done some scouting, and you've seen 30 guys in military uniforms with big guns entering and leaving and no one tells you it's now a flower market. You can target it. When it turns out you're wrong because the guys in military uniforms with big guns were just going in to buy their girlfriends flowers, you're not liable for being wrong.
Now, in addition to the things you can target, you can also target the people who are fighting you. In a conflict between countries, that's the military versus military, and in a conflict within a country or between the US and groups like al Qaeda, you can target the military or non-military people who fight. They don't necessarily need to be fighting right at that exact moment, but they need to be the people who are fighting. [IHL law nerds: no, I'm not going to discuss the complexities of DPH. Suck it up, Dan, Sukrit, Catherine, and Gilles-Phillippe.]
You can never target civilians or civilian objects. It's prohibited. It's so fundamentally prohibited it's the most prohibited you can get in international law. It's Charles Manson-Jeffrey Dahmer-Ariel Castro prohibited.
Once you've targeted a military thing, you have to use weapons that can distinguish between the civilian object and the military. Again, this isn't a strict standard, but you need to work to your capabilities, and if you can't completely distinguish, then you need to make sure that the impact on civilians doesn't outweigh the advantage you gain. This is a fluid thing and it's not a 1:1 ratio. If you are targeting something really important - like the Department of Defense ("DOD") - if you might be able to justify killing 100 or 500 civilians, whereas if you're targeting a checkpoint on the road, you might be able to justify killing only 1 civilian. If you can, you should alter your plans to make sure the damage to civilians is as little as possible. So if a market is operating across the street from the DOD and it only operates from 9-5 and you can just as easily attack at 6 as you can at 3pm, and you aren't sacrificing your only opportunity to to attack well, you should wait until 6. [IHL-nerds: yes, I just discussed both distinction and proportionality and tried to pretend it was just distinction, but stop being so mean, Sukrit, Dan, Catherine, Gilles-Phillippe, Selbi, Hanneke and Laureen.]
Why Chemical Weapons are Extra Bad Compared to Other Weapons.
The other relevant customary international law is a prohibition on the use of weapons that cause superfluous harm. We want weapons that kill as humanely as possible. Yes, bombs and bullets and tanks can leave you paralyzed, but they aren't designed to leave you paralyzed. They're designed to make you die (or get you to surrender). Again, we know war is hell and we know that people will die, but we just want it to be as limited of a hell as we can have. So if something is designed to leave you in pain rather than to kill you, it's not legal.
Even Beyond the General, there's Probably a Specific Customary International Law.
No one justifies using chemical weapons. We can justify owning them and stockpiling them as a deterrent, but no one actually justifies using them. Not even Hussein or Assad prior to, well, when they didn't like that rule anymore. When they are used, they're denied (as we've seen in Syria), or people blame one another (as in Syria), or they are prosecuted.
Chemical weapons use is, thankfully, very rare, and no one actually goes around saying, "Dude, love the ability to use chemical weapons on people" or even "Seriously, it's totally fine to use chemical weapons." Everyone says they can't / won't / don't and when they do, they still say they can't / won't and don't.
You can compare this to bombs and bullets. No one ever goes around saying "bullets are illegal! So are tanks and bombs!" And by "no one" I mean no one other than pacifists and no one speaking on behalf of their country.
So we have a pretty consistent state practice (not using chemical weapons) with a definite assertion that it's illegal (shown by denials when they are used). So chemical weapons are also specifically prohibited, making them different than other weapons.
Who Enforces This?
Whoever is using the chemical weapons is definitely breaking a law that it is definitely bound to not break and that it definitely knows that it is breaking. Oh, yeah - I forgot to mention. The rules above also apply to non-state actors, so even though the US thinks it's Assad and Russia says it's the other guys, it doesn't matter. Someone - whoever used the chemical weapons - is breaking the law.
Now, as to who enforces this... ummmmmm.... so, yeah, kind of no one, and kind of the UN Security Council (UNSC). Which is why Obama feels that someone should and since he can't get the UNSC to do it, he will. Or might. Maybe. Depending on Congress and France say.
But just because it's not enforced doesn't mean it's not a law. Think about how many times you've sped on your local highway!
This is partly the product of where I grew up: the discussion on international law in the US is a bit crazy. As one of my colleagues and I were taking the mick out of each other this morning, he said something I could really argue with: "You can't go to an American on international law - they don't even think it exists!" (Okay, I realise no one will laugh at that unless they actually do international law; and in fairness, he went on to a much more personal and funny insult, but that was his set-up.).
This is partly the product of our history. We were isolationists. When we stopped being isolationists, we were a world superpower, and then we were the world superpower. So we tend to think we're not bound by anything other than whatever came out of the POTUS's mouth (or the SCOTUS's mouth, and sometimes Congress's maybe; and if you're Rick Perry, you think you're only bound by the latest thing to have come out of your own mouth).
But also, lots of other, non-US people just don't about the laws of armed conflict. So the past few weeks, I've seen a lot of facebook posts / comments along these lines:
- "Assad's been bombing people for years. What makes chemical weapons so special?"
- "How can we hold him to a treaty Syria isn't a party to?"
- "Does this mean we can bomb anyone who messes up in war? Because we should be careful about that..."
Now, morally, I kind of agree with the first comment, but legally, there's answers to all of these questions and the answers relate to the laws of armed conflict. Now, I'm not going to suggest an answer to the problem of Syria but I think Syria presents a really good opportunity for people who don't pay attention to international law as part of their job to start to understand international law just for their own benefit. So, here's my super brief answer on "what makes chemical weapons so special." I could write a longer piece, but I can only justify about 20 minutes of procrastination on my PhD chapter. Also, as I wrote, I could hear the voices of my friends who study this in my head, so I have a few notes for them in [brackets]. Just ignore those if you don't study this.
Let's start with some basics:
There are two types of international law: treaties and customary. Customary international law develops when states act in a consistent manner and do so because they believe they are legally bound to do so even without a treaty. To see the consistent state manner, you can look to both action and omissions, and can rely on public statements and declarations that accompany either the act or lack of action. Once something is customary international law, it's binding on all states except those that have consistently objected to the development of this rule. This can develop slowly taking decades or it can be quite quick.
Understanding how customary international law works:
To give an example (which is really really really not real), let's imagine that tomorrow, the US decided that because of all the peanut allergies (which I know are really really real), it was going to ban the growing, selling, producing or importing of peanuts to protect human life. Then it started telling other states they should do it too, that ultimately if they take the right to life seriously, they must do this. And a few other states - hippy-dippy liberals like Canada, NZ and France and Sweden - decided to ban peanuts out of respect for the right to life. That would not be enough for customary international law. But, if over the course of about 3 years, almost all the other states - say, 135 of the 193 UN members - all worked to ban and eradicate peanut use as a threat to human life and health, and they banned sales, and they came out with statements saying that the production of peanuts was illegal not just within their own states but across the world. Then, with 135, you would see an emerging norm or an emerging custom. No one is quite sure if it's really custom or not, but it sure looks like it's getting there. And then by year 5, 155 countries have done this. They're all doing the things to ban peanuts and stop their transport. And of the less than 40 countries who haven't, 20 don't actually use or have peanuts in their countries anyhow. So they haven't taken any steps because they're looking at the rest of the world going "But we've never even had peanuts, they've never been in our borders, why is everyone so obsessed with peanuts?" So this takes us down to 20 states that are relevant to the peanut discussion and who aren't banning their import. Ten of these states just don't care because they wish we would focus on something more important like world peace or the real eradication of polio. But the other 10 do care and every time it comes up they go, "No. This isn't a real rule. You're all anti-peanut imperialists and we will not be bound by this rule." At that point, there's enough consensus that the rule becomes a rule for everyone - the 155 that agreed, the 20 that it was never relevant to and the 10 it was relevant to but didn't care - except for the 10 states that continue to say it's not a real rule. Now, let's assume Thailand with all their yummy peanut sauce is one of the countries that consistently objected so they aren't bound.
So what happens with Canada suddenly starts trading Thailand minerals for peanuts? The law isn't binding for Thailand but it is for Canada, who was actually one of the first to help make this a law. Canada is violating international law. They haven't signed a treaty, but they also weren't consistent objectors when the customary rule was developing. So they have to live by the rule that was established. They can't come in later and go, "Oh, shoot, but we don't like that rule anymore, so we won't abide by it." They can, on the other hand, try to create a new rule. But they can't just ignore the old one.
How Chemical Weapons are Customary International Law.
So, those are the two types of law. Now why this matters to chemical weapon use. Syria isn't a party to the relevant treaties [note to IHL-nerds: yes, some could argue that the use of chemical weapons is torture and prohibited under Common Article 3 of the Four Geneva Conventions, but this post isn't for you, so stop trying to make it all complicated; yes, Dan and Sukrit, I'm talking to you.]. So, Syria can only be bound to not use chemical weapons on civilians if there's a relevant customary international law.
And there is. (Otherwise, this post would've ended a really long time ago.) The laws of war have two relevant rules for this that are not customary for all wars. [note to IHL-nerds: yes, I know wars and armed conflicts are different, but again, this post isn't for you, so stop being nit-picky. Dan, Sukrit, and Catherine.]
Now, war is bad. Everyone knows that. The laws of war are intended to make war less bad, meaning less harmful to the innocent civilians and as humane as you can make war for the people fighting it. It accepts that people will die. The laws accept that people will die but it requires states to try to make sure people only die to the extent necessary, and if they do die it's from as humane an act as possible. I know it's perverse, but countries are sometimes perverse: they don't want the effects of war, but they like blowing things up and conquering each other. So to hit the right balance, they developed rules that limit the impact on civilians.
The two customary laws that are most relevant here are the obligations when targeting, and the use of weapons that are designed to cause superfluous harm.
When you're fighting a war, the country has to distinguish between military and civilian objects. Military objects are those that by their nature, use, purpose or location make an effective contribution to the military effort of the other side, and whose destruction in whole or in part in the circumstances ruling at the time will help your side militarily. It's judged by the circumstances ruling at the time, so if you have a big building and last week, the military was housing all their artillery, last week was a military target and you could try to destroy it. But if this week, it's now a flower garden, it's no longer a military target and you can't hit it. You can make mistakes, but your mistakes should be in good faith, so you should try to confirm in advance of launching a strike that the building is still being used for military housing. This is judged by the standard of your best efforts to the extent that doesn't compromise your military objective and advantage. So you know the building was military housing, you've asked some people, you've done some scouting, and you've seen 30 guys in military uniforms with big guns entering and leaving and no one tells you it's now a flower market. You can target it. When it turns out you're wrong because the guys in military uniforms with big guns were just going in to buy their girlfriends flowers, you're not liable for being wrong.
Now, in addition to the things you can target, you can also target the people who are fighting you. In a conflict between countries, that's the military versus military, and in a conflict within a country or between the US and groups like al Qaeda, you can target the military or non-military people who fight. They don't necessarily need to be fighting right at that exact moment, but they need to be the people who are fighting. [IHL law nerds: no, I'm not going to discuss the complexities of DPH. Suck it up, Dan, Sukrit, Catherine, and Gilles-Phillippe.]
You can never target civilians or civilian objects. It's prohibited. It's so fundamentally prohibited it's the most prohibited you can get in international law. It's Charles Manson-Jeffrey Dahmer-Ariel Castro prohibited.
Once you've targeted a military thing, you have to use weapons that can distinguish between the civilian object and the military. Again, this isn't a strict standard, but you need to work to your capabilities, and if you can't completely distinguish, then you need to make sure that the impact on civilians doesn't outweigh the advantage you gain. This is a fluid thing and it's not a 1:1 ratio. If you are targeting something really important - like the Department of Defense ("DOD") - if you might be able to justify killing 100 or 500 civilians, whereas if you're targeting a checkpoint on the road, you might be able to justify killing only 1 civilian. If you can, you should alter your plans to make sure the damage to civilians is as little as possible. So if a market is operating across the street from the DOD and it only operates from 9-5 and you can just as easily attack at 6 as you can at 3pm, and you aren't sacrificing your only opportunity to to attack well, you should wait until 6. [IHL-nerds: yes, I just discussed both distinction and proportionality and tried to pretend it was just distinction, but stop being so mean, Sukrit, Dan, Catherine, Gilles-Phillippe, Selbi, Hanneke and Laureen.]
- The short answer: Chemical weapons can't distinguish usually. That's the thing about chemicals - you spray them out and they just go and go and go. They're not like a bomb or a bullet, they don't hit something and then stick. So, they don't distinguish and they aren't proportionate.
Why Chemical Weapons are Extra Bad Compared to Other Weapons.
The other relevant customary international law is a prohibition on the use of weapons that cause superfluous harm. We want weapons that kill as humanely as possible. Yes, bombs and bullets and tanks can leave you paralyzed, but they aren't designed to leave you paralyzed. They're designed to make you die (or get you to surrender). Again, we know war is hell and we know that people will die, but we just want it to be as limited of a hell as we can have. So if something is designed to leave you in pain rather than to kill you, it's not legal.
- The short answer: Chemical weapons aren't designed to kill you, or to kill you quickly. They are designed to make you suffer. Sarin gas is designed to kill your nerves, making you writhe in pain until your body shuts off. Yes, it can sometimes work faster than other times, but it's purpose is an evil, awful one. It's designed to bring out the worst hell war can offer.
Even Beyond the General, there's Probably a Specific Customary International Law.
No one justifies using chemical weapons. We can justify owning them and stockpiling them as a deterrent, but no one actually justifies using them. Not even Hussein or Assad prior to, well, when they didn't like that rule anymore. When they are used, they're denied (as we've seen in Syria), or people blame one another (as in Syria), or they are prosecuted.
Chemical weapons use is, thankfully, very rare, and no one actually goes around saying, "Dude, love the ability to use chemical weapons on people" or even "Seriously, it's totally fine to use chemical weapons." Everyone says they can't / won't / don't and when they do, they still say they can't / won't and don't.
You can compare this to bombs and bullets. No one ever goes around saying "bullets are illegal! So are tanks and bombs!" And by "no one" I mean no one other than pacifists and no one speaking on behalf of their country.
So we have a pretty consistent state practice (not using chemical weapons) with a definite assertion that it's illegal (shown by denials when they are used). So chemical weapons are also specifically prohibited, making them different than other weapons.
Who Enforces This?
Whoever is using the chemical weapons is definitely breaking a law that it is definitely bound to not break and that it definitely knows that it is breaking. Oh, yeah - I forgot to mention. The rules above also apply to non-state actors, so even though the US thinks it's Assad and Russia says it's the other guys, it doesn't matter. Someone - whoever used the chemical weapons - is breaking the law.
Now, as to who enforces this... ummmmmm.... so, yeah, kind of no one, and kind of the UN Security Council (UNSC). Which is why Obama feels that someone should and since he can't get the UNSC to do it, he will. Or might. Maybe. Depending on Congress and France say.
But just because it's not enforced doesn't mean it's not a law. Think about how many times you've sped on your local highway!
No comments:
Post a Comment