Iraq’s Abandoned CW’s
Posted: October 15, 2014 Filed under: Nuclear 8 CommentsThere’s a lot of buzz in the Twitterverse about this new article in the NYT on the subject of the caches of pre-1991 chemical weapon munitions that have been found in Iraq since the 2003 invasion, and the injuries that they have caused, particularly to U.S. soldiers serving in Iraq.
The piece is very important and paints a terrible picture of the wounds received by U.S. soldiers who inadvertently came into contact with these discarded and most often buried munitions. It is a damning portrayal of how the U.S. military mishandled both the facts concerning the existence of these caches, as well as the care for the injured soldiers.
The piece also provides further information on the number and extent of these caches than I’ve seen before. It says that in all 4500 such non-militarily-usable, yet still extremely dangerous, munitions have been discovered. It further observes, disturbingly, that at least some of this stockpile is now in the hands of ISIL; a topic also addressed recently by Joe Cirincione and Paul Walker here.
There has been some misinterpretation among some of the less sophisticated denizens of the Twitterverse, that this report constitutes evidence supporting the U.S. narrative justifying the 2003 invasion. However, the article itself points out several times, correctly, that the fact of the existence of these caches is not a revelation. It’s been known since the 2004 Duelfer Report. These munitions are old, discarded and non-militarily-usable. They are not the droids the empire was looking for. So no, this article does not provide any support to the (still) erroneous U.S. justification for the 2003 Iraq war.
What it does do is several things. First and foremost, as I mentioned above, it is a shameful narrative about how the U.S. government and military treated U.S. soldiers who were injured by these discarded CW munitions. Second, it does provide greater understanding of the scope of Iraq’s existing caches of still very dangerous chemical weapons, including information about where many of their components came from (hint – the West).
There are a couple of arms control law points that stuck out to me in this article. One is the question of whether the chronicled failures of the U.S. military to properly report and dispose of the CW munitions they found in Iraq constitute a violation by the U.S. of the Chemical Weapons Convention. I honestly haven’t had time to give this a lot of thought yet (I’m teaching three courses this semester), but I would be interested in the views of CWC experts like Jean-Pascal Zanders on this question. My first impression would be that, since these were not CW on U.S. soil, or in any way owned by the U.S., therefore U.S. responsibility would not be triggered. I suppose the only thing that is holding me back from that tentative conclusion is the fact that, as an occupying power, the U.S. was legally responsible at least to some extent for what went on in their occupied territory during the period of occupation. Would this responsibility extend to reporting and disposal of old CW munitions they found in Iraq? I honestly don’t know.
One point that is driven home forcefully to me by this article is the clarity it provides concerning the moral and legal responsibility that Western nations have for supplying Iraq with chemical weapons-related-materials during the 1980’s with (as we now know) full knowledge that they would be used against Iran’s military, and a reasonable foreseeability that they would also be used against civilians (which they were). Readers will recall that I posted a paper written by one of my students on this subject last year, and I continue to recommend it. This is a truly shameful chapter of history for Western countries, including the United States. To have knowingly supplied chemical weapons-related-materials to Saddam Hussein, knowing good and well that he would use them. I find that unconscionable, and I have never heard anyone offer any kind of reasonable explanation or justification for it. Nor, I think, could there be one.
Arms Control Law 
Its possible to raise the argument that “U.S. was legally responsible at least to some extent for what went on in their occupied territory during the period of occupation” in Iraq, specially if we read some of the duties of the occupying power under the 1907 Hague Regulations (arts 42-56) and the Fourth Geneva Convention (GC IV, art. 27-34 and 47-78). However my concern is different here, these “chemical weapon munitions” were found when the USA along with a “coalition” decided to invade IRAQ. The coalition was formed by USA, United Kingdom, Spain, Australia and Poland. Are these countries responsible too? And what about the other countries that supported this invasion sending troops? This issue is everyones concern and the International community as a whole has failed to act diligently on it.
That’s a good question. A friend recently brought to my attention the fact that the CWC in Article III requires parties to declare CW’s that are anywhere under their “jurisdiction or control” (http://www.opcw.org/chemical-weapons-convention/articles/article-iii-declarations/). I think this fits very snugly with the idea that an occupying power has effective control over an occupied territory. So it would indeed seem from this that the US had an obligation under the CWC to declare any CW it found to the OPCW, and coordinate with the OPCW the destruction of the munitions. This the US did not do.
I know there are some who will argue that the CWC did not apply during the time because it was a situation of armed conflict. I addressed this claim in my 2009 book on pages 14-15. Treaties are not presumptively suspended in their application during armed conflict. And I see absolutely no reason to think that the CWC would not apply during an armed conflict. So I would dismiss that argument.
You raise the very correct point that it was not only the US that occupied Iraq. I’d have to think about it, but I seem to remember that different coalition countries had different parts of the country under their effective control, e.g. with the UK controlling the south of the country. So I suppose the analysis would be that whoever found CW munitions in the area they effectively controlled, had the obligation to declare them to the CWC (assuming they were a CWC party themselves).
I just have a small follow-up question. When I read the Art. III Declarations I was wondering whether you “should” consider these reporting obligations as continuous? It “could” be as well be a one-time obligation – the terms are in my opinion ambiguous.
From an IHL perspective I have further doubts on the existence of such far reaching obligations. Occupation does not imply sovereignty over a territory.
“The duties of the occupying power include restoring and ensuring, as far as possible, public order and safety; providing the population with food and medical supplies; agreeing to relief schemes undertaken by other States or impartial humanitarian organizations if the population is inadequately supplied; maintaining medical facilities and services; ensuring public health and hygiene; and facilitating the work of educational institutions.” (see: https://www.icrc.org/eng/resources/documents/misc/5lmm37.htm)
In my opinion, the detection and reporting of chemical weapons is not necessarily included by the duty to establish order and safety or anything that is explicitly mentioned in the Geneva Conventions or Additional Protocols.
I just have difficulties to see a clear-cut legal obligation to report those weapons by the U.S..
What — if any — are the legal implications of this?
From the NYTimes article:
“In five of six incidents in which troops were wounded by chemical agents, the munitions appeared to have been designed in the United States, manufactured in Europe and filled in chemical agent production lines built in Iraq by Western companies.”
What were (likely) US-designed and Euro-facilitated CW doing in Iraq?
There’s probably a good reason this was made a secret. Not national security but embarrassment and legal implications.
Isn’t the conventional wisdom that they were in Iraq because the West provided them to Iraq during the 1980’s, to aid in Iraq’s fight against Iran? That’s what I understand.
Yes, my question was just whether at that time there were any legal issues with the West transferring this know how and materiel to Iraq with the (possible) knowledge they were tp be used as CWs
That’s a darn good question. I’m actually discussing it with a friend now. I’d say if it happened during the CWC era there would be a much clearer answer. Per CWC article II, transferring CW related munitions is a violation. In the pre-1991 context, I don’t know if there was anything on point.
According to the NY Times article, the Pentagon did not follow the steps outlined in the CWC, “but says that it adhered to the convention’s spirit.” The Pentagon also justified its failure to comply with the CWC by stating that the convention “did not envisage the conditions found in Iraq.” This seems like a dangerous precedent to set in relation to compliance with the CWC. Any state could easily claim that the CWC didn’t envisage the conditions found in a given conflict zone. The US should take responsibility for its failure to comply with the CWC in Iraq with regard to abandoned CWs, and should avoid setting a precedent that will ultimately weaken the normative strength of the CWC.