BOSTON BOMBING & WMD

Dzhokhar Tsarnaev, one of the suspects in the Boston bombing tragedy, has been formally charged with using a weapon of mass destruction and malicious destruction of property resulting in death (under the Violent Crime Control and Law Enforcement Act of 1994)
The fact that I am from Spain makes it easy for me to understand the fears and feelings that terrorism can generate. Unfortunately I am familiar with such events: just to give one example, in 1987 the terrorist group ETA placed a powerful explosive in a supermarket in Barcelona that killed 21 people and wounded 45.
Nonetheless, what is surprising to me in the Boston case is the charge of ‘using a weapon of mass destruction’.
Certainly, the concept of “weapons of mass destruction” (WMD), although widespread, raises questions of definition. The term WMD first appears in 1948, in a document of the Commission for Conventional Armaments, referring to issues that did not belong to its jurisdiction but to the Atomic Energy Commission (another committee established by the United Nations General Assembly). Specifically, the mandate of the Atomic Energy Commission was, inter alia, the preparation of proposals to eliminate atomic weapons and “all other major weapons adaptable to mass destruction” (Res AG 1(I), 24 January 1946). The demarcation criterion was, therefore, the ‘capacity’ of certain weapons to cause a destructive effect comparable to that produced by the use of atomic weapons.
Indeed, destructive potential and indiscriminate effect are the two criteria commonly used to identify WMD. For example, the Paris Agreements of 23 October 1954 on the Accession of the FRG to the North Atlantic Treaty use the criteria of potentiality. Specifically in Annex II of Protocol III of these agreements, which gives a combined treatment to nuclear, chemical and biological weapons (prohibiting their manufacture to the FRG), only nuclear weapons are expressly defined as capable of “mass destruction, widespread damage or mass poisoning”. Regarding their indiscriminate effects, this is the approach followed by the International Committee of the Red Cross, which includes in the category of WMD all weapons that, by their nature and manner of use, cause indiscriminate effects and, consequently, do not have the ability to distinguish between military targets and civilians (XXI International Conference of the Red Cross, Istambul, 1969, Resolution XIV).
Both approaches have obvious shortcomings. Technological and weaponry development demonstrate the existence of conventional weapons that are highly destructive and, certainly, the destructive capacity of chemical and biological weapons depends on the characteristics of their delivery systems as well as on the amount and type of products used. Indiscriminate effects are also currently in question especially because of the so called “miniaturized” nuclear weapons, whose effects are supposed to be similar to some conventional weapons.
Even with these shortcomings, it seems to me to be useful to keep the name of weapon of mass destruction to encompass only nuclear, biological and chemical weapons. First, because only these weapons have mass destructive capacity and non discriminatory effects by nature. This is one of the reasons that justifies the special characteristics of the WMD international treaties. Second, because this is the usual meaning assigned to that notion: many international treaties, like Sea-Bed Treaty, BWC, CWC, Treaty of Tlatelolco, Outer Space, Treaty of Rarotonga, and Celestial Bodies use the term WMD with this understanding and definition. Indeed, and more recently, this is also the understanding of the Security Council expressed in Resolution 1540 (2004) among others. The U.S. is a party to most of these treaties, and lead Security Council action against the proliferation of WMD.
Given this international consensus, the association of the criminal behavior perpetrated in the Boston marathon with the concept of WMD, introduces a confusion that in my opinion does not contribute to the strengthening of the WMD legal regime, and I don’t see how it can help to deal with these kind of criminal actions or to prevent them in the future.