The international Chemical Weapons Convention (CWC) came into force in 1997, and the US was a founding signatory of it.
As part of the US’s obligations under the CWC, the US Congress had to enact legislation that embedded the provisions of the CWC into the US legal code, which it did through the Chemical Weapons Convention Implementation Act of 1998. The definitions spelled out in Art. II of the CWC, including those highlighted in my previous post here, were incorporated as a body into Sec. 3 of this Act.
Sec. 229 of the Act, “Prohibited activities”, spells out that:
- “(a) Unlawful Conduct.–Except as provided in subsection (b), it shall be unlawful for any person knowingly–
“(1) to develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon; or
“(2) to assist or induce, in any way, any person to violate paragraph (1), or to attempt or conspire to violate paragraph (1).M
“(b) Exempted Agencies and Persons.–
“(1) In general.–Subsection (a) does not apply to the retention, ownership, possession, transfer, or receipt [but note that use and/or threatened use of a chem weapon is NOT exempted there ~HC] of a chemical weapon by a department, agency, or other entity of the United States, or by a person described in paragraph (2), pending destruction of the weapon.
“(2) Exempted persons.–A person referred to in paragraph (1) is–
“(A) any person, including a member of the Armed Forces of the United States, who is authorized by law or by an appropriate officer of the United States to retain, own, possess, transfer, or receive [but again, no exemption here for a person using or threatening to use one ~HC] the chemical weapon; or
“(B) in an emergency situation, any otherwise nonculpable person if the person is attempting to destroy or seize the weapon.
“(c) Jurisdiction.–Conduct prohibited by subsection (a) is within the jurisdiction of the United States if the prohibited conduct–
“(1) takes place in the United States;
“(2) takes place outside of the United States and is committed by a national of the United States;
…
Sec. 229A “Penalties” stipulates that:
- “(a) Criminal Penalties.–
“(1) In general.–Any person who violates section 229 of this title shall be fined under this title, or imprisoned for any term of years, or both.
“(2) Death penalty.–Any person who violates section 229 of this title and by whose action the death of another person is the result shall be punished by death or imprisoned for life.
…
That is the US civil code.
The military code, as laid down in the US Army Field Manual 27-10 “The Law of Land Warfare” uses language that harks back to some of the earliest provisions of international humanitarian law– that is, the Hague Conventions of 1908. Ch. 2, sec II of FM 27-10 states the following:
33. Means of Injuring the Enemy
Limited
a. Treaty Provision.
The right of belligerents to adopt means of
injuring the enemy is not unlimited. (HR, art. 22.)
b. The means employed are definitely restricted
by international declarations and conventions and by the laws and usages
of war.
34. Employment of Arms Causing
Unnecessary Injury
a. Treaty Provision.
It is especially forbidden * * * to
employ arms, projectiles, or material calculated to cause unnecessary suffering.
(HR, art. 23, par. (e).)
b. Interpretation. What weapons cause “unnecessary
injury” can only be determined in light of the practice of States in refraining
from the use of a given weapon because it is believed to have that effect.
The prohibition certainly does not extend to the use of explosives contained
in artillery projectiles, mines, rockets, or hand grenades. Usage has,
however, established the illegality of the use of lances with barbed heads,
irregular-shaped bullets, and projectiles filled with glass, the use of
any substance on bullets that would tend unnecessarily to inflame a wound
inflicted by them, and the scoring of the surface or the filing off of
the ends of the hard cases of bullets.
35. Atomic Weapons
…
36. Weapons Employing Fire
The use of weapons which employ fire, such as tracer
ammunition, flamethrowers, napalm and other incendiary agents, against
targets requiring their use is not violative of international law. They
should not, however, be employed in such a way as to cause unnecessary
suffering to individuals.
The “Battle Book” issued in July 1999 by the Army’s Command and General Staff College at Fort Leavenworth, KS, states more succinctly that:
- It is against the law of land warfare to employ WP against personnel targets.
I should state for the record that I am totally opposed to the death penalty. Also, that I do not believe there is any chance that the individual US service members who used WP in combat in Fallujah will ever be punished for those actions. And in a real sense– for them, as for the grunts who actually “committed” the abuses in Abu Ghraib prison– the real responsibility for their criminal misdeeds should be fixed far higher than at the level of the field operatives.
I do, however, think it is good to be clear about the legal status of the way WP was used in Fallujah so that, (1) we who are US citizens can start to fully understand what has been done in Iraq in our name, and with our tax dollars, and (2) we have a chance of drawing a clear line in the sand, based on the existing provisions in our legal code, and making sure that members of our armed forces (and “other government agencies”, = the CIA) stop the commission of acts that are inhumane, deeply violative of all national and global norms, and actually illegal.
This should be the case with respect both to the way that employees of our government treat detainees and other persons under their control, and to the way they engage in combat.
We desperately need, as a citizenry, to recommit our country to respect of the rule of law. Otherwise, what does it represent?
It all summarizes very neatly. If US forces deliberately used White Phosphorus for its caustic rather than it’s incendiary or smoke effect then it is prohibited by the CWC treaty.
Otherwise not…
I had assumed from the reports that the “Shake and Bake” missions were using WP as an incendiary. But the repeated use of the term of WP as a “psychological” weapon made me reread this BBC article which seems more consistent with the US using WP for it’s smoke effect directly on the enemy. The psychological factor appears to be that the regular artillery shells go off and make a huge boom while you are surrounded by smoke. Smoke means you can’t see where the weapons are striking, which is very frightening. Smoke also means your commander can’t see you running for your life, so you skip. Smoke also means the Americans can’t see you running away, so you think you can get away safely. I would love to know if infra-red technology can see through WP smoke. I admit this is speculative but it is the only scenario that fits the testimony quoted.
People hit by incendiaries like napalm often are unable to run and the soldiers using the weapon don’t refer to it as a “Psychological weapon”.
WP smoke is only mildly irritating and it’s not effective as a tear gas. Possibly it was a true psychological weapon.
The embedded reporters testimony is agonizingly ambiguous on the exact effect of the weapon on the insurgents:
I rather doubt that a single shell was a mixture of WP and high explosive. Anyway, the question seems to be: “If you’re in a building and a WP shell goes off do you experience a smoke effect, an incendiary effect or a caustic effect?”. The evidence we have to sift is that 1) the targets ran out right away, 2) the soldiers referred to it as psychological, and 3) The high explosives by themselves didn’t reach the insurgents, so probably the WP shell didn’t either.
The US Army Field Artillery Magazine is also skimpy (pdf) with the details:
But it sort of indicates the two munitions were fired separately and that the WP did not injure or kill the enemy. Otherwise why use the regular munitions with it? And if the WP didn’t kill the enemy it was aimed at then it probably didn’t kill any nearby civilians either.
You might want to view the Army Magazine as html so use this google search. It pops up first and you can hit the link to view in html.
Finally, numerous people have pointed out that it is illegal to use WP on civilians. It is, of course, illegal to use any weapon on civilians, like in a hotel bombing, so the WP issue is irrelevant.
Helena, thanks for the good journalism here. I would just point out that Section 229 of the Act, which you quote, is part of the U.S. *criminal* code (Title 18), not the civil code.
WarrenW, I cannot fathom what satisfaction you gain by defending the use of this weapon against the people of Fallujah. This was a despicable and clearly criminal act of exactly the sort we are currently trying to prosecute in Saddam Hussein’s war crimes trial.
John C.
It was not a criminal act to direct WP at combatants as a smoke or incendiary weapon.
I cannot fathom what satisfaction is gained by Helena and others of the so-called “Anti-war” movement by their efforts to install the fascist insurgency as the new government of Iraq. The only possible goal of slandering the US forces is to demoralize the US side to the benefit of the head-choppers and the hotel-bombers, and to the detriment of the constitutional government and the people they represent. The slanders against the US forces also objectively serves the purpose of drawing attention away from the atrocities committed by the insurgency.
I have begun to suspect that the “Anti-war” movement is funded by those who profited from the Oil-for-Palaces scandal and wish to return to those halcyon days. Under Saddam Hussein the wealth of Iraq was the private property of one man, today it is the property of the elected government of the Iraqi people.
Perhaps the “Anti-war” movement has some horrible grudge against Susanne Osthoff or Norman Kember and wants to see them eliminated? See also this article in the LA Times. These kidnappers and killers are the people Helena wants to put in charge of Iraq.
John C– thanks for that clarification. yes, I’d meant to write “civilian law”. Clearly, within civilian law (as opposed to military law), these provisions are part of the criminal code.
Warren W. I am just in wonder, yet again, at the depth of the hatred you harbor for anyone who disagrees with your view of the world. Why the intense motivation to try to re-parse the issue of the US forces’ use of the caustic substance WP directly AT their opponents (as opposed to, in order to create a smokescreen BETWEEN themselves and the opponents, or illumination OVER the battelefield?)
The Field Artillery account says “We fired ‘shake and bake’ missions at the insurgents“. The embedded reporter D. Mortenson wrote that the US soldiers “ran through the drill again and again, sending a mixture of burning white phosphorus and high explosives they call ‘shake ‘n bake’ into a cluster of buildings where insurgents have been spotted all week.”
I guess it must be tough for ardent war supporters like yourself, Warren, to see the extent to which in these weeks the tide of opinion is turning so strongly against the war; and to see the facts of exactly how the US forces have been behaving inside Iraq, and– crucially– the very harmful effects they have had on the lives of so many Iraqis start to come out in such abundance.
For intense ideologues, the adjustment to real life is always difficult. So I feel sorry for you, and hope your transition into a more reality-based and humane universe is not too hard on your psyche.
At the same time, your attempt to “use” against me the sad facts of the recent abductions in Iraq– including of one of my fellow Quakers from Virginia– is quite cynical and despicable. As too of course is your accusation that “These kidnappers and killers are the people Helena wants to put in charge of Iraq.”
It would be really nice if you could apologize for everything you wrote in those last two paragraphs. What baseless, sad, and sickly hostile nonsense!
Helena:
The fact that the WP was directed AT the enemy position, just as artillery was, does not indicate that the effect was caustic. Since the artillery shrapnel did not reach the insurgents, the WP from the shells probably didn’t either. The smoke, however, would have gone everywhere, around corners and into basements. Even under doors.
What seems to have been done is to send enormous smoke grenades into buildings via the same artillery tubes (and along the same trajectory) as the High Explosives that were not doing their job. Americans like to engage in combat at night. The experience of being in a possibly darkened building (or bunker), unable to see or be seen, while artillery pounds your position, has got to be a unique “Psychological” experience. The insurgents, after the WP effects, were able to run out of the building to their doom. So apparently neither the WP nor the regular artillery harmed them when they were inside. The psychological factors may include the fact that the insurgents could not be seen by their commanders nor by the Americans, so they felt that running was safe.
This is not a “Re-parse” but a realistic interpretation of limited testimonies. It is only the vicious anti-American and anti-Democratic hatred of the “Anti-war” movement that let them leap to the conclusion that the WP was being used as a caustic agent.
My “Intense motivation” is only to the truth.
The irony and the internal contradiction in the “Anti-war” position of supporting their own kidnappers is indeed a powerful X-Ray to illuminating the fallacies of the “Anti-war” position. This is relevant to political analysis and is neither cynical nor despicable.
If indeed, you do not support the insurgents as the future rulers of Iraq, now is the time to say so. I would be delighted to hear it.
Also, if any of you turn up any additional evidence as to what exactly happened with the WP (as distinct from innuendo and propaganda), I’d also like to hear that.
WarrenW, you are only deluding yourself. The rest of the world is not fooled. We know that WP shells were intentionally fired into buildings known to be inhabited by human beings. Arguments about “incendiary” versus “toxic” effects are not going to distract anyone from the essential truth. There is no mystery about what happens when a WP shell explodes in the immediate vicinity of human beings – no mystery at all.
The really pathetic aspect of your attempts to defend this practice is your obviously sincere belief that you are supporting U.S. foreign policy. You are doing the exact opposite. You are helping to kick the last legs out from under any future leadership role the U.S. might hope to play on human rights issues, WMD proliferation issues, post-conflict reconciliation issues, etc.
And you can’t fall back on the argument that this is war, so we’ve got to do whatever is necessary to win. It’s one thing for me to argue that wars inevitably involve atrocities, and that “war crime” is a redundant phrase. I’ve already been exposed here as a fatalist and enemy of the people. It’s another thing for a true-blue American patriot like yourself to take a dirty weapon that’s being used to burn the flesh off women and children, and try to wrap it up like a yellow brick in the road to freedom and democracy.
John C.
We don’t know that the WP fired by the US troops was fired into residences occupied by civilians. The troops were getting fire from the buildings at one point, indicating that the residents had fled. Or if there were civilian residents in those buildings or bunkers, ever.
The exact point I made is that there is no strength to the accusation that the US did “burn the flesh off women and children”. In fact, the evidence we have indicates that most likely the WP was used simply as a smoke generator.
And I did not just distinguish between “incendiary” and “toxic” effects. I put forth the evidence that the most probable usage of the WP was for smoke generation. How could you have missed this?
You’ve got quite a lot of facts dead wrong.
My entire point is that the limited information we have does not support the idea that the US used WP as a chemical weapon against anybody. And that most of the “Anti-war” movement is not serious about examining evidence.
While to you “There is no mystery about what happens when a WP shell explodes in the immediate vicinity of human beings”, it is a still very doubtful that the WP exploded close to anyone. Since if the US Army could have got the WP close enough to act as a weapon, the artillery they shot first would have been lethal, eliminating the need for any WP at all. The WP and the artillery were launched from the same artillery weapons along the same trajectory. Regular artillery shells explode with steel shrapnel that will reach further than particles of phosphorus. Think about what these facts mean.
I don’t understand your “enemy of the people” comments but I think you are saying something like the truth doesn’t matter. I don’t believe this.
Frankly, the white phosphorous issue is not the best case that anti-war groups have. WP was used extensively as an anti-personnel munition by the IDF in Beirut in 1983 and by the Russians in Grozny in 1994 and 1995. International treaties are soft on WP and other legal incendiaries that aren’t air-delivered, saying they can be used as long as they aren’t targeted at civilians. (They do NOT speak to the possibility that a civilian may be incidentally hurt in their use directed against combatants, which is the current effort of anti-war evidence gathering in Fallujah).
International treaties are more exacting on air-delivered incendiaries, such as MK-77 bombs (which the Americans admitted using in Fallujah at the same time they denied using WP from Nov 7-10). These air-delivered incendiaries CANNOT be used in civilian areas REGARDLESS of an intent not to harm civilians.
So why all the attention on WP and not the MK-77s (the descendant of napalm)? Probably because of the WP flip-flop, followed by the description of WP tactics in Field Artillery magazine. But shouldn’t the real scrutiny be on the MK-77s?