US Shared Liability for Iraq’s Use of Chemical Weapons Against IranPosted: February 19, 2014
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.