Chemical Weapons before the US Supreme Court: Bond v. United States

I’m very pleased to host another guest post from Dr. Daniel Rietiker.  This time Daniel provides a review and commentary of the recent decision of the U.S. Supreme Court in the Bond case.

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Chemical Weapons before the US Supreme Court: Bond v. United States, June 2, 2014 (case note)
Daniel Rietiker, PhD
It is rare that the Supreme Court of the United States deals with arms control or disarmament issues. It did so recently and delivered its opinion in the case of Bond v. the United States on June 2, 2014. The case arose from a lurid domestic dispute that started when a Pennsylvania woman, Ms. Bond, a microbiologist, learned that her husband was the father of her best friend’s child. This curious case deals with the obligation to implement the provisions of the 1993 Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction (CWC), and there deserves the following brief considerations.
[For the text of the opinion: http://www.supremecourt.gov/opinions/13pdf/12-158_6579.pdf%5D

The Facts of the Case
Petitioner Bond sought revenge against H with whom her husband had carried on an affair. She stole a quantity of 10-chloro-10H-phenoxarsine, an arsenic-based compound, from her employer, a chemical manufacturer. She also ordered a vial of potassium dichromate, a chemical commonly used in printing photographs or cleaning laboratory equipment, on Amazon.com. Both chemicals are toxic to humans and, in high enough doses, potentially lethal. It is undisputed, however, that Bond did not intend to kill H.

She then spread the two toxic chemicals on H’s car, mailbox, and door knob in hopes that H would develop an uncomfortable rash. On one occasion H suffered a minor chemical burn that she treated by rinsing with water, but Bond’s attempted assaults were otherwise entirely unsuccessful. The local authorities decided not to pursue the matter, but federal prosecutors charged Bond with violating, among other things, 18 U.S.C. Section 229(a), that is based on the 1993 Chemical Weapons Convention to which the US is a party. Bond moved to dismiss the chemical weapons charges on the ground that the Act violates the Tenth Amendment. When the District Court denied her motion, she pleaded guilty but reserved the right to appeal. The Third Circuit initially held that Bond lacked standing to raise her Tenth Amendment challenge, but the Supreme Court reversed. On remand, the Third Circuit rejected her Tenth Amendment argument and her additional argument that Section 229 does not reach her conduct.

The Legal Basis for the Prosecution
To implement the CWC, Congress enacted the Chemical Weapons Convention Implementation Act of 1998. The statute forbids, inter alia, any person knowingly to “possess[ ] or use . . . any chemical weapon,” (§229(a)(1)). A “chemical weapon” is “[a]toxic chemical and its precursors, except where intended for a purpose not prohibited under this chapter.” (§229F(1)(A)). A “toxic chemical” is “any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals. The term includes all such chemicals, regardless of their origin or of their method of production, and regardless of whether they are produced in facilities, in munitions or elsewhere.”(§229F(8)(A)). “[P]urposes not prohibited by this chapter” are defined as“[a]ny peaceful purpose related to an industrial, agricultural, research, medical, or pharmaceutical activity or other activity,” and other specific purposes. (§229F(7)).

The Court’s Opinion
Chief Justice John G. Roberts Jr. wrote a unanimous decision for the Court.
He started with Bond’s argument that Section 229 did not cover her conduct and recalled that a signatory nation should implement its obligations “in accordance with its constitutional processes.” (Art. VII(1) CWC). Bond was prosecuted under a federal statute, which, unlike the treaty, must be read consistent with the principles of federalism inherent in the constitutional structure of the US. As a result, it was not considered necessary to interpret the scope of the CWC in this case.

In the Court’s view, a fair reading of Section 229 must recognize the duty of “federal courts to be certain of Congress’s intent before finding that federal law overrides” the “usual constitutional balance of federal and state powers,” (Gregory v. Ashcroft, 501 U. S. 452, 460). In the instant case, the ambiguity in the statute derives from the improbably broad reach of the key statutory definition, the term “chemical weapon”, the deeply serious consequences of adopting such a boundless reading, and the lack of any apparent need to do so in light of the context from which the statute arose – a treaty about chemical warfare and terrorism, not about local assaults.

The Court furthermore recalled that where the breadth of a statutory definition creates ambiguity, it is appropriate to look to the ordinary meaning of the term being defined (here “ chemical weapon”) in settling on a fair reading of the statute (Johnson v. United States, 559 U. S. 133). It considered that an ordinary speaker would not describe Bond’s feud-driven act of spreading irritating chemicals as involving a “chemical weapon.” and that the chemicals at issue here bear little resemblance to those whose prohibition was the object of the CWC.

The Court concluded that the Government’s reading of Section 229 would transform a statute concerned with acts of war, assassination, and terrorism into a massive federal anti-poisoning regime that reaches the simplest of assaults. It added that “[a]ny parent would be guilty of a serious federal offense – possessing of a chemical weapon – when, exasperated by the children’s repeated failure to clean the goldfish tank, he considers poisoning the fish with a few drops of vinegar.” In light of the principle that Congress does not normally intrude upon the States’ police power, the Court could not conclude that Congress meant to punish Bond’s crime with a federal prosecution for a chemical weapons attack. In fact, only a handful of prosecutions have been brought under Section 229, and most of those involved crimes not traditionally within the States’ purview, e.g., terrorist plots.

The Court furthermore suggested that Pennsylvania’s laws were sufficient to prosecute assaults like Bond’s and that there was no indication in Section 229 that Congress intended to abandon its traditional reluctance to define as a federal crime conduct readily denounced as criminal by the States (United States v. Bass, 404 US, at 349). That principle goes to the very structure of the Constitution and protects the liberty of the individual from arbitrary power. The global need to prevent chemical warfare does not require the Federal Government to “reach into the kitchen cupboard”.
As a result, the Court reversed and remanded.

Justices Scalia, Thomas and Alito each issued a concurring opinion. They indicated that they would have rested the decision on constitutional grounds, saying that the chemical weapons law covered minor crimes but that Congress had over-stepped its constitutional authority by enacting it. Justice Scalia challenged the logic and workability of the argument of the majority according to which the test proscribed by Section 229 depends on the particular chemicals that the defendant used as well as on the circumstances in which she used them. He agreed that poisoning a goldfish tank is apparently out, but asked himself what if the fish belongs to a Congressman or Governor and the act is meant as a menacing message?

Comments on the Case in the Light of the CWC and Disarmament Law in General
From my point of view, the opinion is worth reading for those interested in chemical weapon issues, and this at least for the following reasons:

1. The opinion provides for a useful summary of the motifs that triggered the negotiations and conclusion of the CWC, namely the use of this dreadful weapon, beginning with World War I, when over a million casualties, up to 100 000 of them fatal, are estimated to have been caused by chemicals. Iraq’s use of nerve agents and mustard gas during its war with Iran in the 1980s, as well as the attacks with sarin gas by Japanese extremists in 1994 and 1995, are also mentioned. On the other hand, I find it surprising that the opinion does not at all address the recent use of chemical weapons in Syria, clearly reported and acknowledged not only by civil society (see, for instance, the Human Rights Watch report “Attacks on Ghouta”, published on 10 September 2013), but also by the UN Security Council (Resolution 2118(2013) of 27 September 2013).

2. Moreover, the opinion lays out certain essential features of the CWC, in particular the definition of “chemical weapons”. As a reminder, the CWC defines chemical weapons as“[t]oxic chemicals and their precursors, except where intended for purposes not prohibited under this Convention, as long as the types and quantities are consistent with such purposes.” (Art. II(1)(a)). “Toxic Chemical,” in turn, is defined as “Any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals. This includes all such chemicals, regardless of their origin or of their method of production, and regardless of whether they are produced in facilities, in munitions or elsewhere.” (Art. II(2)). “Purposes Not Prohibited Under this Convention” means “[i]ndustrial, agricultural, research, medical, pharmaceutical or other peaceful purposes,” (Art. II(9)(a)), and other specific purposes not at issue here (Arts. II(9)(b)–(d)). In the light of this definition, that has simply been copied into Section 229 (see above), it seems clear to me that Bond’s conduct falls in the ambit of the CWC.

3. Moreover, and this aspect is clearly underdeveloped in the opinion, the applicability of the CWC does not depend on an ongoing armed conflict in the sense of the Geneva Conventions, but applies also in peace times. Art. I is very clear in this regard: “Each State Party to this Convention undertakes never under any circumstances…” In other words, the allegation by the majority of the Court according to which the CWC is above all a response to war crimes and “warlike” activities is subject to caution. Interestingly, many judgment of the European Court of Human Rights (ECtHR) having led to violations of the right to life (Art. 2 ECHR) or the right not to be subject to cruel or inhuman treatment (Art. 3 ECHR) caused by chemical weapons or riot control agents, rely to a certain extent on the CWC, even thought the underlying situations fell short of an armed conflict (see, for instance, Finogenov and others v. Russia, No. 18299/03, Judgment of 20 December 2011, or Ali Güneş v. Turkey, no. 9829/07, 10 April 2012).

4. The Court also recalled that, although the Convention is a binding international agreement in the sense of the 1969 Vienna Convention on the Law of Treaties it is not “self-executing”, and has therefore to be implemented in the national legal systems. The CWC provides that “[e]ach State Party shall, in accordance with its constitutional processes, adopt the necessary measures to implement its obligations under this Convention.” (Art. VII(1)). “In particular,” each State Party shall “[p]rohibit natural and legal persons anywhere…under its jurisdiction…from undertaking any activity prohibited to a State Party under this Convention, including enacting penal legislation with respect to such activity.” (Art. VII (1)(a)). The United States, by enacting section 229, pursued the fulfilment of this treaty obligation. On the other hand, it cannot be claimed that the CWC imposes on the States an obligation to prosecute and punish an individual each time a conduct that might fall in the ambit of the treaty is at stake. Criminal prosecution and punishment is a State’s prerogative and a field where the authorities traditionally enjoy a broad margin of appreciation, the so-called prosecutorial discretion (in this sense, opinion, p. 19). Therefore, considering the minor gravity of the present case, the US would not have been responsible, from an international law point of view, for failing to initiate prosecutions against Bond. Another question, closely linked but not dealt with by the Court, is whether the measures taken by the authorities were sufficient in order to prevent her from stealing the toxic and potentially lethal chemicals from her employer, presumably a private company. The CWC, although non-self-executing, is a treaty that, once implemented in the domestic legal order, imposes obligations on private persons and companies. In such a situation of a “horizontal” effect, the States Parties must ensure that private entities dealing with dangerous chemicals are well trained and that they take the necessary safety measures against accidents and abuse (see, in this sense, Art. VII(1)(b) CWC).

5. Lastly, for scholars interested more broadly in questions of arms control and disarmament, the opinion provides for a significant confirmation of the ultimate aim of all arms control measures, that lies in “general and complete disarmament”. Indeed, the Court recalled “[t]hat the nations that ratified the Convention (States Parties) had bold aspirations for it: general and complete disarmament under strict and effective international control, including the prohibition and elimination of all types of weapons of mass destruction.” (opinion, p. 2). It is obvious that this kind of statement, expressed by the Supreme Court of one of the main nuclear powers, is a valuable reference in the assessment of the pending applications introduced by the Republic of the Marshall Islands before the ICJ against the Nuclear-Weapon States with regard to their obligations stemming from Article VI NPT (see the discussion on this topic in this blog, including my post dated June 10, 2014, under “Nuclear”).

To sum up, there is no doubt that, in the light of the principle pacta sunt servanda and Article VII(1) CWC, the Congress was obliged to enact legislation implementing the CWC. It did so by adopting Section 229, which is largely identical with the general obligations under Art. I CWC. This catalogue of duties turns out to be too vague to be compatible with the fundamental principles of a fair criminal trial. Moreover, from my point of view, by prosecuting Ms. Bond based on section 229, the authorities, given the special circumstances of the case, used a sledgehammer to crack a nut. In other words, the measure taken against Bond turns out to be clearly disproportionate.

On the other hand, the fact that the application of the CWC does not depend on an armed conflict can be considered an opportunity with a view of prosecuting other, more serious acts committed in peace times through the use of chemicals, such as the widespread practice, in particular in India or Pakistan, of acid throwing against women, defacing and often marginalizing them for life. I hope that the approach adopted by the majority of the Court in the – admittedly awkward – Bond case will not have negative repercussions on potential prosecutions of that kind.

(Daniel Rietiker, PhD, Lecturer in international law, University of Lausanne, Swiss Member of the ILA’s International Committee on Nuclear Weapons, Non-Proliferation & Contemporary International Law and, currently, Visiting Fellow at the Human Rights Program of Harvard Law School)