There has been a lot of effort expended lately on, and a lot of attention given to, a movement in international civil society to bring about a clearer understanding and appreciation of the humanitarian consequences of the potential use of nuclear weapons, as a vehicle for promoting nuclear disarmament. Here’s an article about Rebecca Johnson, someone whom I very much like and respect, talking about this idea.
I think this humanitarian movement is a fine idea, and that it could indeed bring welcome attention to the fact that many strategic policies of states for the use of nuclear weapons, i.e. those that contemplate the use of nuclear weapons as against civilian population centers or mixed military-civilian targets, contemplate actions that would be clearly unlawful under the law of armed conflict – violating the very strong principles of proportionality and discrimination under those sources of law.
The International Court of Justice in its 1996 advisory opinion essentially agreed on this point, when it said that “the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of international humanitarian law.”
The critique that I would offer of the humanitarian movement is the same critique that that ICJ eventually had to face, which is that humanitarian principles unfortunately cannot answer the whole question of the lawfulness of the use of nuclear weapons, and therefore can’t carry the full burden that many of its proponents would like it to carry, i.e. the legal requirement of global nuclear disarmament.
The problem the Court faced is that there were those among the nuclear weapon states who argued, it must be admitted correctly, that nuclear weapons are not one size fits all, and that in modern nuclear weapons doctrine various uses/purposes are contemplated for nuclear weapons during armed conflict, not all of which would run afoul of the principles of humanitarian law.
The standard hypothetical examples include an enemy submarine or warship, alone or in a convoy, far out to sea, and the potential use of a small-yield nuclear warhead against them. Similarly, an enemy military base or group of enemy soldiers, or a deeply buried enemy military facility, isolated in a desert, and the use of a nuclear tipped cruise missile or nuclear bunker-buster bomb against such a target. In both of these cases, it is likely that the use of nuclear weapons would not violate either the principle of proportionality or the principle of discrimination.
So again, what I’m saying is that the humanitarian movement is a fine thing and will, I would hope, influence military planners in shaping their considerations of the instances in which the use of nuclear weapons would be lawful during armed conflict. There should indeed never be another Hiroshima or Nagasaki. Under the modern law of armed conflict, these uses of nuclear weapons against civilian centers, even with some military advantage involved, would be clearly illegal.
Nevertheless I, as others, would still signal the cautionary note that the expectations of what the humanitarian movement can achieve on the nuclear disarmament front should not be overestimated. To put it simply, not all uses of nuclear weapons in armed conflict would be illegal. And as long as that is true, possession of nuclear weapons is still lawful for those states that have not undertaken positive legal obligations to the contrary, and furthermore in some contexts it is quite rational.
I was reading recently an article over at armscontrol.org by Gaukhar Mukhatzhanova that made the following observation about one of the leaders of the humanitarian movement:
Juan Gómez Robledo, Mexican undersecretary for multilateral affairs and human rights and chair of the Nayarit conference, stated in his summary that “the path to achiev[ing] a world without nuclear weapons” is to outlaw them and identified the 70th anniversary of the Hiroshima and Nagasaki bombings as the “appropriate milestone” for achieving this goal. The summary, presenting the view of the chair rather than an agreed outcome, seems to have overstated the readiness of most states to launch negotiations on an instrument banning nuclear weapons. It has served, however, to further aggravate concerns among states that had suspected that the goal of the humanitarian initiative is to start a process parallel to and in competition with the NPT. The third humanitarian-impact conference, scheduled to take place in Austria later this year, is expected to identify next steps for the initiative, which would help clarify implications for the 2015 NPT Review Conference and beyond.
This mention of a process “parallel to and in competition with the NPT” caught my eye. There has indeed been talk within the humanitarian movement – as there has been in other contexts for many years, but simply renewed now in this context – about pushing for a nuclear weapons ban treaty. One vein of this idea is to have a group of willing states – however many there are and almost certainly not including any state actually possessing nuclear weapons – sign on to such a treaty banning nuclear weapons possession, and essentially begin the process of global nuclear disarmament by then proselyting the treaty to nuclear weapons states, and hopefully, eventually, getting them to sign on too.
I think this is a fine idea, as far as it goes, and I have previously supported the idea of abandoning the NPT for some new replacement treaty regulating nuclear energy and nuclear weapons.
I suppose the advice I would give to those who are actively promoting this idea, is the very point that I made in the post I just linked to, which is that the only way a replacement treaty for the NPT will ever even remotely possibly achieve meaningful levels of membership, is if there is an accompanying coordinated withdrawal from membership in the NPT by those state signing the new treaty.
I do not think a new treaty establishing a universal prohibition on nuclear weapons, and the NPT, can exist in parallel within a state’s treaty membership profile.
If there is to be any chance of putting serious pressure on nuclear weapons possessing countries to accept that the NPT regime is indeed a thing of the past, and that the way forward is the new treaty establishing a universal ban, the NPT must be well and truly killed off through states withdrawing from it in a massive, coordinated, and very deliberate way as they sign onto the new treaty. Only then will the issue of the new regime be forced upon holdout nuclear weapons possessing states, and they will be put in the spotlight of explaining over and over why they will not join the new treaty.
I’m extremely pleased to announce that Dr. Ralf Trapp will be joining Arms Control Law as a regular contributor. Dr. Trapp is one of the most eminent experts in the area of chemical and biological weapons and related international law. When I was writing the chapter on CBW law for my 2009 book, I relied heavily on the commentaries on the CWC that Dr. Trapp co-authored with Walter Krutzsch around the time the CWC was signed. And now, Dr. Trapp has partnered with Dr. Krutzsch and Professor Eric Myjer to produce what I’m sure will be the authoritative legal commentary on the CWC, which will be published by OUP later this year. See the description of the new book here. We are honored to have Dr. Trapp joining us, to give us his insights from time to time on CBW law. Here is a brief bio sketch:
Ralf Trapp is an independent consultant in the area of chemical and biological weapons arms control. A chemist and toxicologist by training, he worked with the GDR Academy of Sciences in the field of chemical toxicology between 1978 and 1990. From 1985 to 1987 he was a guest researcher at the Stockholm International Peace Research Institute (SIPRI), and from 1991 to 1992 at the Stiftung Wissenschaft und Politik Ebenhausen (Germany). He acted as technical adviser on chemical weapons disarmament to the GDR and subsequently the German delegations to the Geneva Conference on Disarmament. In 1993, he joined the Technical Secretariat of the OPCW where he worked in the areas of industry verification, verification policy and review, international cooperation, government relations and political affairs, and strategic planning. From 1998 to 2006, he was the secretary of the OPCW’s Scientific Advisory Board. After leaving the OPCW in 2006, he has provided consulting services to, amongst others, the OPCW, the European Commission, the United Nations, the ICRC and SIPRI. He has been involved in a number of international projects to provide science and technology advice to the CWC as well as the BWC, including studies organised by IUPAC and the Inter-Academy Panel on International Issues. Ralf Trapp is an external member of the Accademia delle Scienze dell’ Istituto di Bologna, a member of the International Institute for Strategic Studies in London, and member of the German Chemical Society as well as the American Chemical Society.
On 20–21 March the University of Rome III hosted a roundtable discussion to reflect on the current status of the prohibition on chemical weapons (CW) and the future challenges to that ban. Although convened by the Law Department, the speakers represented an eclectic group of experts with backgrounds in international law, political sciences, chemistry and biology, as well as practitioners. Notwithstanding, the meeting yielded considerable coherence in arguments, with questions, challenges and supplementary insights contributing further to an already rich multi-disciplinary texture.
The Chemical Weapons Convention (CWC) is at the heart of today’s prohibition on CW and their use in armed conflict. However, it does not stand in isolation. In fact, one could build a case that the norm against CW has a variable geometry. Approach it from the ban on chemical warfare, and the 1925 Geneva Protocol and its links to the International Criminal Court or the United Nations—in particular, the UN Secretary-General’s mechanism to investigate alleged use of chemical or biological weapons (CBW)—may take centre stage. Approach it from the angle of scientific and technological developments, and the 1972 Biological and Toxin Weapons Convention (BTWC) emerges as a possible point of entry. Approach it from the threats posed by terrorism and UN Security Council resolutions, including 1540 (2004), with their demands for national legislative action come into play. And so on. The various tools available today have created mutually reinforcing bridges. However, they are also the source of contradictions and large gaps remain between them. As the Rome roundtable brought out, it is not always clear how they can be reconciled or filled.
And then, of course, there are the politics. As we are about to commemorate the centenary of the outbreak of the First World War and are just eight days before the 99th anniversary of the chlorine attack near Ypres, Syria’s civil war shows that humanity still has not been fully able to relegate these weapons to history. And while political leaders of the great powers loudly invoke the inhumanity of poison weapon use, their actions today—just like those during the Abyssinian war in the 1930s, the Yemen war in the 1960s, the Iran–Iraq war of the 1980s—demonstrate once again that other geopolitical considerations, national security interests or domestic political agendas trump halting chemical warfare and holding the culprits accountable under international law. (True, some would argue that the 2003 invasion of Iraq served such a purpose, but alas, few are those who believe the proffered unbelievable unbelievables.)
Unsurprisingly therefore, Syria made up one of the main threads tying the various sessions together. But it was not the only one: other recent issues pose remarkably similar challenges to the future of the prohibition on CW. This blog posting summarises the presentations and offers a few personal reflections on points raised during the discussions.
Seymour Hersh has written a new piece exploring the facts and politics of the crisis last August/September concerning chemical weapon attacks within Syria, and President Obama’s consideration of military strikes to enforce his “red line.” The piece is published in the London Review of Books. The piece makes for a fascinating read and, because it’s Hersh, will probably be quite influential.
According to Hersh’s narrative, the CW attack at Ghouta, which was the catalyst for the crisis, was perpetrated not by Syrian government forces, but by Syrian opposition forces allied with Turkey, and supplied with sarin gas munitions with the help of the Turkish government. This is a very provocative claim. To me, though, it makes a lot of sense. It never made sense to me that Assad would at that moment authorize the use of CW. It would have been a really stupid tactical decision, knowing as he must have that it would seriously ratchet up international pressure on him, and might lead to a potentially disastrous Western intervention – as compared to relatively low if any military advantage to be derived from the use of CW. But then when the UN report came out it seemed to, at least on the basis of circumstantial evidence, support the conclusion that the CW shells had come from regime positions.
So now I’m not really sure what to believe. Seems like more work needs to be done to really get to the bottom of what happened. Although, with the passage of time and a war still going on, further clarity on the facts may be elusive.
This morning, I came across an item on the BBC website entitled: Princess Anne: Gassing badgers is most humane way to cull.
According to the piece, Princess Royal’s comments came after the British government said it would not expand badger culling from two pilot culls aimed at reducing TB in cattle.
Interest groups of course welcomed her remarks. As a representative of the National Farmers’ Union said in a BBC radio interview ‘The Princess Royal is noted for outspoken views and her forthright honesty. I think it’s an option that needs looking at. And provided we can tick all the boxes as far as humaneness goes then it would certainly be an option to consider.’
When was it the last time you saw ‘gassing’ and ‘humane’ juxtaposed? The humanitarian argument was definitely advanced after the end of the First World War to justify the continuation of the chemical warfare programmes in Allied countries. (Germany lost its sovereign right to armament with the 1919 Versailles Treaty.)
Just check this little item in the The Lewiston Daily Sun of 4 June 1932:
Gas is championed as a humane weapon of war by Maj. Gen. Amos A. Fries, who was chief of chemical warfare for the United States during the world War. […]
General Fries said the humaneness of gas lies in the fact that, while it disables an enemy temporarily, it makes possible a high percentage of recoveries.
The irony shall not escape the badgers.
[Cross-posted from The Trench]
Mark Fitzpatrick Wants the US to Make a Nuclear Trade Deal with Pakistan Just Like it Did with India. What a Great Idea!Posted: April 2, 2014
Apparently Mark Fitzpatrick has experienced a profound change of heart regarding Pakistan’s nuclear program, as he explains in this piece at the IISS website. It seems strange to me that he can try to be so objective about Pakistan, and change his mind about the threat posed by Pakistan’s existing nuclear weapons arsenal, and yet apparently have such blinders on about what he assumedly still considers to be the “won’t someone please think of the children” horrible threat posed by Iran’s non-existent nuclear weapons arsenal.
In fact, his newly-arrived-at magnanimity towards Pakistan even extends to urging the U.S. to make a deal with Pakistan, allowing civilian trade in nuclear fuel and technologies, similar to the deal the U.S. signed with India. As he said in a recent presentation:
“The time has come to offer Pakistan a nuclear cooperation deal akin to India’s,” Fitzpatrick said as he launched a new book, “Overcoming Pakistan’s Nuclear Dangers,” in Washington.
“Providing a formula for nuclear normalization is the most powerful tool that Western countries can wield in positively shaping Pakistan’s nuclear posture,” Fitzpatrick said.
Yes, a deal like the India deal. What could possibly be wrong with that? Oh, right, now I remember: the India deal has been roundly criticized by most nonproliferation specialists, and is widely considered to have severely undermined the NPT and threatened its credibility as the cornerstone of nuclear law.
Below I’ll excerpt from my 2009 book on the India deal. Just replace the word “India” with the word “Pakistan.”
I don’t know what Mark is thinking, but I think this idea is going to go over like a lead balloon in the nonproliferation community.
In terms of the NPT Article III.2 obligations of the United States, the U.S. has argued that civilian nuclear cooperation with India, including transfers to India of nuclear fuel and enrichment technologies, is not in violation of its Article III.2 obligation not to “provide source or fissionable material . . . or equipment or materiel especially designed or prepared for the processing, use or production of special fissionable materiel, to any non-nuclear weapons state. . . ,” firstly because India is not a non-nuclear weapon state party to the NPT. The question of whether the term “non-nuclear weapon State” as used in Article III.2 of the NPT refers only to non-nuclear weapons states parties to the treaty, as specified in other NPT provisions, or whether the term in this Article refers more broadly to any state not in possession of nuclear weapons, whether NPT party or not, is one which is debated by international lawyers. However, in the case of India, this distinction is largely moot as India is in possession of nuclear weapons and thus could not be included in any definition of a non-nuclear weapons state. Thus, the U.S. argues that transfers to India are not subject to this provision of the NPT.
However, critics argue that, even if not a violation of the letter of the NPT’s provisions, the U.S.-India nuclear supply deal is undermining of the spirit of the NPT and of the grand bargain among NPT parties which the treaty represents. They argue that in concluding this deal to provide civilian nuclear technology to India, the United States, a Nuclear Weapon State under the NPT, is giving concessions to a state which has never undertaken the limiting obligations of the NPT, and which has in fact developed and is in possession of nuclear weapons. To NPT NNWS which have undertaken the obligations of the NPT and not pursued nuclear weapons programs as a result, and which have submitted all nuclear sites within their territory to full-scope IAEA safeguards, this deal appears to give to India, in exchange for only the most basic of nonproliferation commitments, the reward which NPT NNWS were required to undertake and maintain these much more stringent obligations to obtain. Many NPT NNWS see this granting of nuclear technology concessions to India by an NPT NWS as a positive reward for India’s decision to remain outside the NPT framework, and develop and maintain a nuclear weapons arsenal, which is the precise opposite to the incentive structure which the NPT sought to codify into international law.
This positive discrimination in favor of India, and its undermining effects upon the spirit of the NPT grand bargain, are most saliently seen in the contrasting cases of Brazil, the Ukraine, and South Africa. Each of these states had active nuclear weapons development programs and chose to give up their pursuit of nuclear weapons in order to take advantage of the NPT grand bargain, and the promise of positive assistance in the development of their civilian nuclear energy programs offered by NWS under the NPT framework. For India, which has not undertaken the reciprocal obligations of the NPT grand bargain, and which under the global partnership deal would still be allowed to maintain its nuclear weapons program untouched by the limited IAEA safeguards system to be administered only at civilian nuclear facilities nominated by the Indian government, now to be given the same concessions from a NWS that these other states obtained only through complete renunciation of their nuclear weapons programs and submission to full-scope IAEA safeguards, the double standard this deal represents and the resulting evisceration of the fundamental tenets of the agreement they struck with NWS in their acceptance of the NPT is clear.
The U.S.-India nuclear supply deal does appear to significantly weaken the NPT system by causing all NNWS, and particularly states like Iran which are the subject of what they see as prejudicial applications of nuclear nonproliferation law, to question anew their commitment to Article II of the NPT in light of the breakdown in the incentive structure of the NPT system of reciprocal, quid pro quo obligations which this deal represents.
It would be hard to find a more stark demonstration of how differently the IAEA and Western governments, led by the United States, have treated Iran and its nuclear program, as compared to other NPT NNWS who are under essentially the same legal obligations, than in the following couple of developments within the last week.
The first is a presentation given by Robert Einhorn, a recently retired senior US official, who many see as a close confidant of the administration, in which he floated a “trial balloon” of a possible comprehensive agreement between Iran and the P5+1. Among the elements of such a deal, Einhorn proposed the following:
Convert the underground uranium enrichment plant at Fordow into a research and development facility for testing more advanced centrifuges and conducting other nuclear research. Centrifuges there now would be removed to monitored storage.
Modify a heavy-water reactor under construction at Arak to greatly reduce its production of plutonium — another potential bomb fuel — by converting it into a light water reactor, fueling it with enriched uranium or reducing its power level. “Fueling the reactor with enriched uranium would make it more capable of producing medical isotopes than the original” planned facility, Einhorn writes.
Require even more stringent monitoring of the Iranian program than dictated by the Additional Protocol of the Nuclear Non-Proliferation Treaty, including “more frequent and wider access by International Atomic Energy Agency personnel, more extensive installation of surveillance and containment equipment and greater use of remote, real-time monitoring.”
Set up procedures to ensure that any questions about Iranian compliance are “investigated and resolved expeditiously.”
So, under Einhorn’s plan, Iran would get to keep a limited capacity to enrich uranium, but only at a limited number of agreed facilities, not to include the ones that could not be easily bombed if necessary by Israel or the U.S. Iran would also have to scrap plans for building a reactor at Arak that might produce some plutonium, but only if Iran built a separate reprocessing facility that it has no plans to build.
Now, juxtapose that development with the news this past week that Japan has agreed to repatriate some of the weapons grade plutonium contained in its massive stockpile of already separated plutonium, to the US, although according to this report:
The joint statement released at the summit by Washington and Tokyo did not specify how much nuclear material was being repatriated. According to a 10-year-old U.S. report on the Tokai research facility, roughly 1,210 pounds of bomb-ready uranium and 730 pounds of separated plutonium existed at the site, the Center for Public Integrity reported on Tuesday.
Though nonproliferation supporters commended the announcement on the coming withdrawal of fissile material from Tokai, the amount of plutonium held at the facility represents less than one percent of Japan’s worldwide stockpile and just 3.5 percent of the total amount held domestically. Those figures also do not take into account the 8 tons of plutonium the country could begin producing annually at its mixed-oxide fuel fabrication plant at Rokkasho, which is still under construction.
See any differences in treatment?
My friends Hilary and Flynt Leverett are hosting a piece by Gareth Porter over at Going to Tehran, which is essentially an excerpt from his new book entitled “Manufactured Crisis: The Untold Story of the Iran Nuclear Scare.” I confess that I haven’t read Porter’s book yet, even though I have been eagerly anticipating it. But this new piece gives a taste of what it contains, and I think it looks like an impressive work of journalism that deserves to be taken seriously and engaged with.
Even in this short piece, Porter provides an alternative narrative to the usual “laptop of death” source story, that I think sounds persuasive and sensible. Porter is by all accounts a well respected journalist, and he has devoted a lot of time and energy to this subject. I think his work is a serious challenge to the accepted narrative of the intelligence on which the IAEA and Western governments have relied in their political campaign to denigrate Iran’s nuclear program and force its unwinding.