At the centenary of chemical warfare, a visit to Flanders’ World War I battlefields

YPRES, Belgium – Beautiful vistas and bright sunlight cannot blind the visitor to the pain of this place.

This place is Flanders Fields, the name given to the part of west Belgium, close to the French border, that saw intense battles and horrendous casualties during World War I. This town – Ypres in French and Ieper in Flemish, but called “Wipers” by British WWI soldiers – played a central role. So too nearby Passchendaele/Passendale. Both towns were leveled, and like many in the region, were rebuilt in the old manner after the war ended.

During the war, upwards of half a million persons died in this area alone.

Our visit to Flanders Fields occurred on the 4th of July. Memories linger, and were sparked again by today’s commemoration of the 100th anniversary of the 1st large-scale use, in Ypres, of chemical weapons; mustard gas, to be precise. It was the 3d compound to be attempted, after chlorine and phosgene proved less reliable as lethal weapons, according to our tour guide, Raoul Saracen, a retired history teacher. Initial efforts to fight back against chemicals also were crude: before the development and widespread distribution of gas masks, Canadian troops resorted to breathing through kerchiefs soaked in ammonia-rich urine.

The cruelty of chemical warfare did not stop its use. Recording other places where chemicals have been used was a signpost in Langemark, the cemetery where German soldiers (including several with whom I share a surname) are buried. Tokyo, Japan, Halabja, Iraq, and Ghouta, Syria, receive mention, though more recent gassing sites in that last country have yet to be added.

The thousands of headstones in the many Flanders Fields cemeteries of course give pause. So too the cramped trenches, still on display at Sanctuary Wood Museum.

Yet it was a different site that stole my breath – the “dressing station,” a kind of field hospital, at Essex Farm Cemetery. The station’s cement-bunker cells were small, dark, and saddening, a truly concrete reminder of the scourge of war.

 

Emerging security challenges require norm development, State lawyer says

IMG_5540At first blush, today’s security challenges may seem familiar. Yet they are new – emerging, in U.S. State Department parlance – because of the novel ways in which those challenges present themselves.

So explained Mallory Stewart (near right), Deputy Assistant Secretary of State for Emerging Security Challenges & Defense Policy, during her fascinating talk Monday at Tillar House, the Washington, D.C. headquarters of the American Society of International Law. We at Georgia Law’s Dean Rusk International Law Center were honored to join ASIL’s Nonproliferation, Arms Control & Disarmament Interest Group in cosponsoring Stewart’s talk, “Common Challenges to Diverse Security Threats.” (For the event video, see here.)

Stewart’s talk followed introductions by Kathleen A. Doty, Interest Group Co-Chair and our Center’s Associate Director for Global Practice Preparation, as well as opening remarks by yours truly (above, at right) respecting Dean Rusk’s arms control legacy.

Stewart pointed to technological change, in outer space and elsewhere, as one of the emerging challenges. Within this category was what is essentially garbage; that is, the debris left in outer space by state actors and, increasingly, nonstate/commercial actors, whose celestial flotsam and jetsam continue to orbit and present hazards to active satellites, space stations, and the like.

Another challenge is dual-use technology. Items as seemingly innocent as chlorine – a chemical essential to everyday cleaning – can become a security threat when deployed as a weapon, as is alleged to have happened during the ongoing conflict in Syria.

Yet another is ubiquity, the reality that technologies, such as cyber capabilities, are, literally, everywhere, and thus not easy to contain.

Containment – regulation – thus is difficult both to design and to effectuate. With regard to dual-use technologies, for instance, Stewart posed questions of intent: How, exactly, does one define and identify the moment that an innocent item is transformed into a weapon? What about attribution – in areas like cyberwarfare, how can the perpetrator be identified? How can attacks waged with such weapons be prohibited in advance?

Stewart gave due respect to the 20th C. arms control treaties that form the core portfolio of State’s Bureau of Arms Control, Verification & Compliance, where she practices. Nevertheless, stressing global interdependence, she stressed the need for more nimble forms of international lawmaking. To be precise, she looked to mechanisms of soft law, such as codes of conduct, as ways that states and other essential actors might develop norms for responsible behavior in the short term. In the longer term, if the internalization and implementation of such norms should prove successful, eventually legally binding treaties may result.

(Cross-posted from Exchange of Notes blog, where this post appears as Part 2 of a 2-part series; Part 1 is here.)

At Center event in D.C., reviewing namesake Rusk’s arms control legacy

outerspaceVisitors to Tillar House, the Washington, D.C., headquarters of the American Society of International Law, were treated Monday to a superb overview of emerging security challenges by the U.S. State Department lawyer who leads that portfolio, Mallory Stewart. I was proud both to have Georgia Law’s Dean Rusk International Law Center cosponsor, and also to serve as discussant for this important event. This post and the post above will outline the proceedings. (For the event video, see here.) This post consists of my opening remarks, which aimed to to reacquaint the audience with to the role that our Center’s namesake, Dean Rusk, played in building the arms control framework within which Stewart and her colleagues work.

. . .

Everyone knows, of course, about Dean Rusk and Vietnam – of his role in championing a foreign conflict that claimed more than a million American and Vietnamese lives between 1965 and 1974. Everyone knows, too, of his pivotal role in averting nuclear catastrophe during the Cuban Missile Crisis of 1962, when Rusk famously said,

“We are eyeball to eyeball, and the other fellow just blinked.”

What may be less well known – or been forgotten – is likewise significant. That is Rusk’s role in the design and implementation of the international arms control regime that has prevailed since the United States dropped atomic bombs on Japan seven decades ago. An Army officer who served in Asia and then in the War Department in D.C., Rusk, like many of his generation, did not fault the military decision. Yet in his memoir, As I Saw It, he wrote (p.122):

“[W]e made a mistake with the Manhattan Project from its inception. We should have built in a political task force to consider the ramifications of using the bomb.”

That position is consistent with Rusk’s own work, first as a State Department diplomat who championed the United Nations, NATO, and other multilateral postwar efforts, and ultimately as the head of that Cabinet department, for the entirety of the Kennedy and Johnson administrations.

As Secretary of State, Rusk oversaw the establishment of the U.S. Arms Control and Disarmament Agency, a forerunner of the Bureau for which our principal speaker, Mallory Stewart, now works. Moreover, Rusk was instrumental in the drafting, negotiation, conclusion, or implementation of at least seven major arms control treaties.

ltbtruskOne was the 1963 Limited Test Ban Treaty, about which Rusk wrote (p. 259):

“[A]fter the Cuban missile crisis, it was important to demonstrate that the United States and Soviet Union could coexist. The test ban required careful and extensive negotiations, but we and they did sign a major agreement on the heels of the most horrendous crisis the world has seen. … Such is the legacy of what President Kennedy felt was his proudest achievement.”

The other treaties were the Antarctic Treaty, the Outer Space Treaty, the Treaty of Tlatelolco, the Nuclear Non-Proliferation Treaty, the Seabed Arms Control Treaty, and the Anti-Ballistic Missile Treaty. Many of them remain at the core of the U.S. arms control portfolio to this day. Yet with the same modesty that pervades his memoir, Rusk wrote (p. 353):

“On the whole, our record on arms control under Lyndon Johnson was respectable.”

He did allow himself a light pat on the back (p.353):

“In reviewing the accomplishments of the Kennedy-Johnson years, I claim only one for myself: that with the agreements negotiated and our constant talking with the Soviets, my colleagues and I helped add eight years to the time since a nuclear weapon has been fired in anger.”

Rusk’s commitment to extending that time continued long after he left government, in 1969, and joined the faculty at the University of Georgia School of Law. Professor Rusk spoke often about arms control, with students, with the larger community, and with the stream of colleagues who consulted with him at his new home. Indeed, as late as 1985 – less than a decade before his death – Rusk welcomed to Athens, Georgia, former British Prime Minister Edward Heath, former Secretary of Defense McGeorge Bundy, former Secretary of State Alexander Haig, and others for a televised discussion entitled “Forty Years Since Hiroshima: What Next for Mankind?”

Rusk’s 1990 memoir returned to that question. In the final chapter, entitled “Dean Rusk’s Message to the Young,” he wrote (p. 630):

“Your generation will discover in the decades ahead whether mankind can organize a durable peace in a world in which thousands of megatons are lying around in the hands of frail human beings. A world in which collective security – what my generation used to try to curb the obscenity of war – is withering away, and we are not even discussing what shall take its place.”

We are here today to put the lie to that last line – that is, to discuss those very issues of global security. I look forward to Ms. Stewart’s remarks.

(Cross-posted from Exchange of Notes blog. Part 2 of this 2-part series outlines Mallory Stewart’s remarks. Credit for photo at top, of Rusk signing the Outer Space Treaty; credit for photo above of Rusk, standing just to the left of the portrait as President Kennedy signs the Limited Test Ban Treaty)

Breakthrough in drone-debate white noise

droneWhat once was a rather loud drone of debate over the use of armed, remote-controlled, aerial attack vehicles seems recently to have receded into background noise. Perhaps that’s in part because of newly perceived threats like ISIS — threats that many Americans, tired of U.S. ground-troop casualties, would rather see addressed by Reaper and Predator drones. (photo credit) Perhaps it’s because criticism of U.S. counterterrorism practices has muted since the days of the Bush Administration, or because reports of any such criticism now are relegated to the back pages of a few national newspapers.

A recent New Yorker article deserves to break through this complacent fog: “The Unblinking Stare: The drone war in Pakistan,” by Steve Coll, a Pulitzer Prizewinning reporter on national security issues and dean of the Columbia Journalism School. It’s a great synthesis of reportage on the origins and evolution of the program, coupled with commentary that raises questions all ought to be asking.

Of particular note:

► The recognition that the practice of “‘signature strikes'” — drone-killings of “armed military-aged males engaged in or associated with suspicious activity even if their identities were unknown” — stands at odds with settled law. Coll cites a 2013 report by Christof Heyns, U.N. Special Rapporteur on extrajudicial, summary, or arbitrary executions, for the proposition that such strikes do not fall under either “proper standard for attacking a person under the laws of war … ‘continuous combat function’ or … ‘directly participating in hostilities.'” (Coll might’ve gone a step further, and acknowledged that “continuous combat function” is a concept not established in written international humanitarian law, and thus itself still subject to challenge.)  Concern over legality seems to have contributed to President Barack Obama’s tightening of drone-killing standards a year or so ago. The result? Since that time, “there has not been a single documented civilian casualty, child or adult, as a result of a drone strike in Waziristan.

► The role that children play in the story. Coll reports that a Pakistani documenter of human rights violations soon realized that data on drone-killings of adults stirred little interest; “if a drone missile killed an innocent adult male civilian, such as a vegetable vend[o]r or a fruit seller, the victim’s long hair and beard would be enough to stereotype him as a militant.” The documenter’s solution? “[F]ocus on children.” Thus were recorded, via photographs, the harm done to children in the course of drone attacks. Such photos helped fuel “a social-media contest,” Coll wrote, a contest that includes widely varying statistics about just how many civilians, of any age, have perished in U.S. strikes. The disparity makes it hard to evaluate — and thus hard to challenge — U.S. administration claims that drones are more humane, more precise than other sorts of aerial attacks.

Even if the claims are true, Coll questions whether that matters in the end. He cites a recent Foreign Affairs essay in which scholars Micah Zenko and Sarah Kreps argued that the promise of precision “may create more war.” And he writes of meeting in Islamabad with young men who acknowledged the upside of more precision, then added: “But they also talked about the suffering their families had endured — kidnappings, homes under pressure — and their own struggles to obtain an education. In their telling, the relative precision of the aircraft that assailed them wasn’t the point.”

Arms Trade Treaty has 50+ ratifications; will enter into force before year’s end

The Arms Trade Treaty will take effect on December 24, 2014.

The date was set today, after a spate of treaty actions during this whirlwind week of activities at the United Nations’ New York headquarters. Earlier this morning, the Arms Trade Treaty status page in the U.N. Treaty Collection database indicated that 45 states had joined the treaty, 5 short of the 50 needed. That same page now shows 52 states parties, each of which will become bound to the treaty’s terms when it enters into force on Christmas Eve.

fireToday’s joinders by Argentina, Bahamas, Portugal, the Czech Republic, St. Lucia, Senegal, and Uruguay made the difference. They join as states parties 2 permanent members of the U.N. Security Council, Britain and France, along with Albania, Antigua and Barbuda, Australia, Austria, Belgium, Bulgaria, Burkina Faso, Costa Rica, Croatia, Denmark, Dominican Republic, El Salvador, Estonia, Finland, Germany, Grenada, Guyana, Hungary, Iceland, Ireland, Italy, Jamaica, Japan, Latvia, Luxembourg, Mali, Malta, Mexico, Montenegro, New Zealand, Nigeria, Norway, Panama, Romania, Samoa, Sierra Leone, Slovakia, Slovenia, Spain, St. Vincent and the Grenadines, Sweden, The former Yugoslav Republic of Macedonia, and Trinidad and Tobago.

Many more states have signed but not ratified, the United States among them. The remaining 2 members of the P-5, Russia and China, have done neither; reasons here.

Fully half of the 20 arms-exporting countries have joined (specifically, Germany, France, Britain, Spain, Italy, Sweden, Norway, South Korea, South Africa, Belgium); 4 have signed (the United States, Ukraine, Netherlands, and Switzerland); and 6 remain fully outside the treaty regime (Russia, China, Israel, Canada, Uzbekhistan, and Belarus).

As previously posted, the treaty – adopted on April 2, 2013,  by the U.N. General Assembly – aims to curb trafficking in “conventional arms.” The term covers not only heavy weaponry and ammunition, but also small arms and light weapons; these latter constitute a leading cause of attacks that civilians endure in today’s armed conflicts. (credit for UN photo of burning of AK-47s handed over in 2009 South Sudan disarmament process) As stated in Article 2(3) of the treaty (full text text available here), each state party has obligated itself not to

‘transfer of conventional arms …, if it has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva  Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party.’

Here’s hoping these newly assumed treaty obligations advance that worthy goal.

Arms Trade Treaty reaches 4/5 mark

Following a raft of ratifications this week, the Arms Trade Treaty is 4/5 of the way toward entry into force.

Paying-the-priceDepositing their instruments of ratification on Tuesday were Australia, Austria, Belgium, Burkina Faso, Jamaica, Luxembourg, Saint Vincent and the Grenadines, and Samoa. They join 30 other countries that’ve become full members of the treaty since its adoption by the U.N. General Assembly on April 2, 2013. Ten more joinders are needed for the treaty to take effect.

In its 28 articles, the Arms Trade Treaty provides for states parties’ regulation of traffic in a range of arms, from battle tanks to light weapons. (Prior posts available here.) As indicated by the Control Arms poster above, regulating the latter is a principal aim of treaty proponents. (image credit)

Among the 5 permanent members of the U.N. Security Council (among them major arms-exporting states), Britain and France have ratified. The United States signed last September, but the treaty has not been presented to the Senate for consideration. China has not signed; Deutsche Welle reported this week:

‘China has indicated that it would consider signing if the US ratified, which is unlikely to happen.’

And in late May, the Voice of Russia reported that the Russian Federation would not sign, for the following reasons:

‘Russia considers this document to be not completely thought through. It also discriminates against the Russian military-industrial complex.’

Epic painting puts chemicals prosecution, Bond v. United States, into perspective

gassed

In this month that marks the centenary of World War I, the U.S. Supreme Court evoked an epic image of that global conflict. Thus was rejected today the prosecutorial conflation of chemical warfare with what the Court in Bond v. United States called an “unremarkable local offense.”

The image is the one above: John Singer Sargent’s 1919 painting, Gassed. Fully 20 feet wide and 7-1/2 feet tall, it hangs in the Imperial War Museum in London. (image credit) Writing for a 6-member majority, Chief Justice John G. Roberts, Jr., described the scene, one that Sargent had encountered in 1917 on a battlefield in France:

‘[T]wo lines of soldiers, blinded by mustard gas, clinging single file to orderlies guiding them to an improvised aid station. There they would receive little treatment and no relief; many suffered for weeks only to have the gas claim their lives. The soldiers were shown staggering through piles of comrades too seriously burned to even join the procession.’

The tragedy, Roberts wrote, contributed “to an overwhelming consensus in the international community that toxic chemicals should never again be used as weapons against human beings” – a consensus reflected in instruments like the 1992 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, which today has 190 parties. Among them is the United States, which, Roberts explained, “gave domestic effect” to the obligations it had assumed under that treaty in 1998, when it passed the Chemical Weapons Convention Implementation Act, 18 U.S.C. § 229 et seq. The statute makes the use of “chemical weapons,” a federal crime, punishable by death if the use resulted in death. It “‘goes without saying,'” Roberts concluded, that Congress had in mind tragedies along the lines depicted above – or at least as grave as the mid-1990s sarin gas attacks in Japan. He deemed well out of Congress’ mind the facts at bar: “an amateur attempt by a jilted wife to injure her husband’s lover, which ended up causing only a minor thumb burn readily treated by rinsing with water.”

This overturning of a federal conviction on federalism grounds did more than give perspective on the acts under review. It also avoided the asked-for reconsideration of Missouri v. Holland (1920), a precedent nearly as old as Sargent’s painting. There a unanimous Court upheld a federal statute that gave domestic effect to a 1916 treaty by regulating the hunting of birds that fly between the United States and Canada. Invoking the Constitution’s treaty-making and supremacy clauses, Justice Oliver Wendell Holmes, Jr., wrote:

‘If the treaty is valid, there can be no dispute about the validity of the statute under Article I, § 8, as a necessary and proper means to execute the powers of the Government.’

Holmes’ terse reasoning invites questions, many of them bruited about in the months since the Court announced it would review the decision below in Bond. (See, for example, this article by my Georgia Law colleague Harlan Cohen.) Roberts’ majority opinion declined, but 3 Justices who disagreed with him accepted that invitation. “[T]he Treaty Power is itself a limited federal power,” Justice Clarence Thomas wrote in a concurrence-in-the-judgment that Justices Antonin Scalia and Samuel Alito, Jr., joined. In another concurrence-in-judgment Scalia, joined by Thomas, attributed others’ reluctance to revisit Holland to the nature of the case. “We would not give the Government’s support of the Holland principle the time of day,” they insisted, “were we confronted with ‘treaty-implementing’ legislation that abrogated the freedom of speech or some other constitutionally protected individual right.” Whether they are right remains a question for another day.