US Shared Liability for Iraq’s Use of Chemical Weapons Against Iran
Posted: February 19, 2014 Filed under: Nuclear 3 CommentsJennifer Kiss US Iraq Chemical Weapons Responsibility
As I mentioned a few posts back, I spent about three weeks this past January teaching a short course at the University of Ottawa School of Law. I taught my signature “WMD Law & Policy” course to about ten students. I was genuinely impressed by the quality of the students in the course, particularly when they turned in their end-of-the-course papers to be assessed.
Each student chose a subject relevant to the course on which to write their paper. The results were on the whole truly excellent.
I thought that two papers in particular were so exceptional in their quality, and in the timeliness of their subject matter, that they deserved a broader audience. One of those papers is by Juris Doctor candidate Jennifer Kiss, who wrote her paper on the topic of: The United States’ Decision to Ignore the Use of Chemical Weapons in the Iran-Iraq War: An Involvement that Remains Unpunished. This is a tremendously important, and timely subject given the recent confirmation of US knowledge of Iraq’s use of chemical weapons during the Iran-Iraq war, and its continued material support for Iraq notwithstanding this knowledge.
I asked Jennifer for her permission to post her paper on ACL, and she kindly agreed.
On the topic of her paper, I think that, just from a moral standpoint, the revelations about US support for Iraq, in full knowledge that Iraq was using chemical weapons, seriously weaken the credibility of US protestations about the use of chemical weapons by any other state, including Syria.
But Jennifer goes further and uses some of the most cutting-edge legal scholarship on shared responsibility in international law, to argue that the US should additionally be seen to share in Iraq’s legal liability for this grave violation of the laws of armed conflict. As Jennifer writes:
The revealed declassified CIA documents provide substantial amounts of concrete evidence proving that the United States not only knew about the Iraqi use of chemical weapons in the war, but that the Pentagon and the U.S. government determined that using those weapons against soldiers was acceptable because it was “just another way of killing people.” From these CIA documents and through it’s decision to play an active role in the planning of the Fao Peninsula battle strategy of Iraq in 1988, it is acceptable to believe that the U.S. knew that Iraqi military strategy involved the use of chemical weapons, therefore any plans devised by the U.S. must have included the use of chemical weapons.
As a result, it can be argued that the United States agreed to being involved in the internationally wrongfully committed acts by Iraq. Under the Article 47 of the ASR, since both states can be viewed as being involved in the wrongful acts, both the U.S. and Iraq should incur responsibility and both should be obligated to provide reparation to the Iran. The United States can be seen as having a cooperative responsibility as it aided in Iraq in committing the wrongful act against Iran, which parallels the ICJ’s decision in the Nicaragua Case when it found that both the U.S. and Honduras shared liability for the damage incurred by Nicaragua.
I think this is an excellent and persuasive analysis of an important, and too long underpublicized topic. I highly recommend it to readers.
Arms Control Law 
Let’s call it double wrongful acts. First the US is complicit in their injury, and then in their recovery.
the guardian, Sep 2, 2013
Iran’s chemical weapon survivors show twin horrors of WMD and sanctions
Victims of mustard and nerve gas in Iran-Iraq war now struggle to find inhalers, transplant drugs and other vital medicine
Iran never countered in a like manner against the chemical attack, which as the Supreme Leader has noted says something, or should say something, about not only Iran’s moral values but also about Iran’s foreign policy. And the subsequent sanctions are totally wrong. Just ask Ahmad.
Last year, the National Security Archives published an interesting briefing with the major US policymakers at the time. The conversation is fascinating:
http://www2.gwu.edu/~nsarchiv/NSAEBB/NSAEBB394/
Some things we learn are:
(1) Tom Twetten reports that he was sent to Baghdad to pass on military intelligence to the Iraqis as early as the summer of 1982 (which is earlier than most histories have portrayed)
(2) US intelligence to Iraq was so detailed by 1985-86 that “[U.S.] was virtually in the cockpit of [Iraqi] planes flying over Iran,” according to Richard Murphy
(3) US officials felt “palpable joy” when initial reports alleged Iranian use of CW (now known to be false). As Richard Murphy says, “Feeling expressed was: ‘Oh boy, this is great news. Now we don’t even need to consider harsh measures to condemn…the Iraqis.’
Reading thru, we learn a great deal how US senior officials viewed arms control: more as a weapon to be wielded at one’s opponents than a principle to be upheld.
Thank you, Professor Joyner, for this enlightening article and for Miss Kiss’ paper.
I would just like to quickly point out that there does not exist a set of Articles of Shared Responsibility (ASR) as purported on page 11 – there is only Article 47 of the ILC Articles on the Responsibility of States for Internationally Wrongful Acts 2001 – perhaps a typo? (Or a misreading on my part.)
Interestingly, Kiss makes no reference to the fact that the general rule in international law is that of separate responsibility of a State for its own wrongful acts (Art 47, para 1); the same paragraph further “neither recognises a general rule of joint and several responsibility, nor does it exclude the possibility that two or more States will be responsible for the same internationally wrongful act,” (ILC Commentary p 296) and in this case, the use of chemical weapons against Iran in breach of the CWC. In that sense, I think Kiss should make clear that a positive finding of shared responsibility between the USA and Iraq means that “each State is separately responsible for the conduct attributable to it, and that responsibility is not diminished or reduced by the fact that one or more other States are also responsible for the same act.” (ILC Commentary p 294). But I am questioning whether the USA and Iraq committed the same act, i.e. actively utilised chemical weapons?
I think (and despite my inherent belief that the USA should be responsible) it must be noted that within the context of State responsibility, the responsibilities that Iraq incurred are far greater than that of the USA, given that we must consider the allocation of responsibility in an independent manner. According to the ILC: “It is self-evident that the parallel commission of identical offences by two or more States is altogether different form participation by one of those states in an internationally wrongful act committed by the other.” James Crawford therefore puts it in such terms: “Thus a second category of collective conduct arises when state A participates in the internationally wrongful act of another, state B. In such cases it is state B which has committed the wrongful act, and state A’s responsibility is derived from that of state B on account of its contribution to the commission of the act, even though its own conduct taken independently may not actually amount to a breach of its international obligations.” (http://goo.gl/NVqoGL) I think this is particularly relevant to the current situation: it is clear that it was Iraq who committed the internationally wrongful act (use of chemical weapons); and while the USA supported Saddam in the war against Iran, providing arms, money, satellite intelligence and even chemical and biological weapon precursors, (http://goo.gl/UNhIGo) it can be argued that the USA did not technically breach its international obligations – it was preaching adherence to the policy of neutrality (http://goo.gl/U3QWwe) – but based on the facts merely contributed to the use of chemical weapons by Iraq against Iran.
The distinction is therefore the difference between the USA being found independently responsible for the use of chemical weapons (shared responsibility governed by Art 47), or complicit in contributing to the use of chemical weapons (aid or assistance under Art 16). The threshold for Art 16 aid and assistance is undoubtedly lower than of Art 47 shared responsibility, but I think the inherent difficulty is in determining when aid or assistance under Art 16 would be so excessive as to give rise to shared responsibility under Art 47. As per Ian Brownlie: “The supply of weapons, military aircraft, radar equipment, and so forth, would in certain situations amount to ‘aid or assistance’ in the commission of an act of aggression but would not give rise to joint responsibility. However, the supply of combat units, vehicles equipment and personnel, for the specific purpose of assisting an aggressor, would constitute joint responsibility.” The defining line between Art 16 complicity and Art 47 responsibility currently remains unsettled in international law; despite my not having an answer in the particular situation highlighted in Kiss’ essay, I do think that there should have been consideration of whether American aid or assistance to Iraq would have invoked Art 16, after having taken into account that Art 47, as the author rightly noted, has yet to find clear support from the ICJ. (Kiss p 13)
Hope you have a lovely day today.