international weapons laws-of-war
What Constitutes a Chemical Weapon?
<p>Sean Spicer is currently under fire for a <a href="http://thehill.com/homenews/news/328306-spicer-even-hitler-didnt-use-chemical-weapons" rel="nofollow noreferrer">claim of his</a> that Hitler didn't use chemical weapons. <a href="http://www.politifact.com/truth-o-meter/statements/2017/apr/11/sean-spicer/did-adolf-hitler-use-chemical-weapons/" rel="nofollow noreferrer">According to politifact</a> this is not just false, but "Pants on Fire". </p>

<p>Politifact quotes part of the <a href="https://www.opcw.org/chemical-weapons-convention/articles/article-ii-definitions-and-criteria/" rel="nofollow noreferrer">definition of chemical weapons</a> from the Organization for the Prohibition of Chemical Weapons:</p>

<blockquote>
  <ol>
  <li><p>"Chemical Weapons" means the following, together or separately:</p>
  
  <p>(a) Toxic 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;</p>
  
  <p>(b) Munitions and devices, specifically designed to cause death or other harm through the toxic properties of those toxic chemicals
  specified in subparagraph (a), which would be released as a result of
  the employment of such munitions and devices;</p>
  
  <p>(c) Any equipment specifically designed for use directly in connection with the employment of munitions and devices specified in
  subparagraph (b).</p></li>
  </ol>
  
  <p>...</p>
  
  <ol start="9">
  <li><p>"Purposes Not Prohibited Under this Convention" means:</p>
  
  <p>(a) Industrial, agricultural, research, medical, pharmaceutical or other peaceful purposes;</p>
  
  <p>(b) Protective purposes, namely those purposes directly related to protection against toxic chemicals and to protection against chemical
  weapons;</p>
  
  <p>(c) Military purposes not connected with the use of chemical weapons and not dependent on the use of the toxic properties of
  chemicals as a method of warfare;</p>
  
  <p>(d) Law enforcement including domestic riot control purposes.</p></li>
  </ol>
</blockquote>

<p>They state that from this definition that Hitler did in fact use chemical weapons. </p>

<p>My question is: According to this definition, are the gas chambers used by Hitler chemical weapons and, does the lethal injection currently in use also qualify as a chemical weapon?</p>

<ol>
<li>The Nazi gas chambers used Zyklon B, a device and formulation for dispersing hydrogen cyanide (HCN), which is an extraordinarily lethal chemical.</li>
<li>In gas chambers these devices were employed in a manner specifically to cause the death of masses of persons through direct exposure to the chemical HCN.</li>
<li>But Zyklon B devices were developed and used for peaceful industrial and agricultural pest control.</li>
</ol>

<p>I could see arguments going both ways.  On the one hand: The Nazis used a lethal chemical to efficiently kill people on a massive scale.  If that fails to trigger a convention on chemical weapons the convention probably needs to be rewritten.</p>

<p>On the other hand: The gas chambers employed a literally unmodified industrial product, albeit contrary to its indicated use.  If the Nazis had instead built water-tight chambers and drowned the same civilians, that would also be constructing a device to use a chemical to cause mass death.  Does that make water a "chemical weapon?"</p>

<p>Paragraph 8 defines chemical weapon as "the following, together or separately". Before looking at the content, you have to ask what that could mean. In saying "or separately", that means that if <em>any one</em> of the following is true, it constitutes a chemical weapon. Subparagraph (a) identifies toxic chemicals (it qualifies) but with an exception ("intended for purposes not prohibited under this Convention"). The problem here is that this does not identify the scope of intent – intent in development, or intent in use? At the level of historical development, the intent was allowed, but the specific application was not clearly allowed. So Nazi gas may or may not count, depending on whether "developmental intent" vs. "applicational intent" holds sway.</p>

<p>A bit of common sense tells you that "chemical weapon" cannot be defined in terms of developmental intent. <a href="https://en.wikipedia.org/wiki/Sulfur_mustard" rel="nofollow noreferrer">Mustard gas</a>, a notorious chemical weapon, was developed for uncertain purposes but apparently along the lines of "let's see what happens when we do this" (perhaps in 1822). Chlorine gas, another chemical weapon, was not even "developed", and was used as a general chemical agent for centuries. Phosgene, yet another chemical weapon, was synthesized in 1812 (for the purpose of scientific research) and was used in dye manufacturing – again, the original intent was not as a weapon. Sarin was originally developed as a pesticide... you can look at the long list of specific chemicals identified in the schedules <a href="https://www.opcw.org/chemical-weapons-convention/annexes/annex-on-chemicals/" rel="nofollow noreferrer">here</a>. We have to conclude that "original intent" is not the kind of intent referred to in the treaty, since to hold otherwise would lead to the absurdity that the convention applies to nothing. So the question is whether the specific <em>use</em> is allowed. (See below).</p>

<p>Subparagraph (b) adds "Munitions and devices, specifically designed to cause death or other harm through the toxic properties of those toxic chemicals": that is, it includes not just the toxic substances, but also the delivery systems with the proviso that the delivery system is designed to cause harm. It is conceivable that the Nazi gas chambers were originally <em>designed</em> to be permitted fumigation devices, though this would not be the case with the gas trucks. It is more probable that the specific chambers were developed for <a href="https://en.wikipedia.org/wiki/Zyklon_B#Use_in_the_Holocaust" rel="nofollow noreferrer">mass human extermination</a>. Under this subparagraph, Nazi gas chambers were also "chemical weapons" under that definition. (The historical question is whether the chambers were literally unmodified, and I am voting that there <em>were</em> modifications, which is a historical question best taken up on History SE).</p>

<p>Paragraph 9 articulates a possible escape hatch, a propos "intended for purposes not prohibited under this Convention". In particular "Law enforcement including domestic riot control purposes", is a convenient excuse. "Riot Control Agent" is defined as "Any chemical not listed in a Schedule, which can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure", but "Riot Control Purpose" is not defined. Under a narrow literalist construction of 9(d), if there is a law prohibiting being Jewish, one might attempt to argue that by creating such a law, the regime has immunized itself against the accusation of using chemical weapons. But such a construction of the convention is ludicrous, insofar as any offending regime could simply pass a law allowing chemical exterminations, and then they would be immunized against accusations of violating the treaty. This too is an absurd result.</p>

<p>The particular problem with subparagraph (d) is that it does not specifically limit "law enforcement use" to defined "Riot Control Agents". Indeed, the <a href="https://www.opcw.org/fileadmin/OPCW/CWC/CWC_en.pdf" rel="nofollow noreferrer">treaty</a> does not give a general exception to "Riot Control Agents", and that term is only used in connections with other prohibitions (Art. 1 para 5: "Each State Party undertakes not to use riot control agents as a method of warfare"; Art. X para 8(b), state parties may request assistance if "Riot control agents have been used against it as a method of warfare"). In other words, one could reasonably infer that the convention is not intended to prohibit use of Riot Control Agents for the purpose of (internal) law enforcement – mace is legal – but they cannot be used in warfare. That is not what the "law enforcement" exception says, though.</p>

<p>Just to cover all escape routes, we should turn back to the exception clause in (8): "except where intended for purposes not prohibited under this Convention". The convention does not actually clearly articulate any prohibitions nor does it specifically say "this is permitted", instead it defines "Purposes Not Prohibited Under this Convention" and then gives that list of 4 "not prohibited" uses. Since exterminating people is not one of the 4 "not prohibited" uses, we have to conclude that extermination of people is not allowed under the "except where intended for purposes not prohibited" clause.</p>

<p>All told, I conclude that both of the topically-relevant uses of chemical agents do constitute "use of chemical weapons", assuming the OPCW definition.</p>
