Analysis
Chemical weapons: in Ukraine as elsewhere, the law still has a say
A resident searches for his belongings in an apartment building destroyed during fighting between Ukrainian and Russian forces in Borodyanka, Ukraine, April 5, 2022. AP - Vadim Ghirda
Text by: Léopold Picot Follow
7 mins
On several occasions, faced with the fierce resistance of the last Ukrainian soldiers besieged in Mariupol, the use of chemical weapons by Russia was feared.
And the threat continues to hover as the conflict bogs down in the East.
How can the law prevail for this type of weapon, when the Syrian example has shown all its limits?
Response elements.
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Rumors of the use of chemical weapons are insistent in the Ukrainian conflict, and recall their use by the regime of Bashar al-Assad in Syria.
The West is worried about this, especially in the strategic port of Mariupol, believing that it would be a terrible shift on the part of Russia.
But these positions are reminiscent of those taken by the Americans during the war in Syria: Barack Obama had then estimated that the use of chemical weapons would constitute a "red line" not to be crossed...
before constantly pushing back the said line
despite the evidence.
The rules laying down the framework for the use of certain weapons are nevertheless set by international humanitarian law (IHL) but they are the subject of numerous negotiations and interpretations, reducing or increasing their scope of application.
Rather comprehensive humanitarian law
Some weapons, deemed far too dangerous to be framed only by the general principles of the Geneva Conventions, are the subject of separate treaties.
The use of anti-personnel mines and chemical weapons is supervised, even prohibited, because they can affect unarmed populations long after the end of a conflict and their multiplication required specific supervision.
This framework, however, sometimes leaves States free to use this type of weapon in certain contexts, as is the case with
phosphorus bombs.
But the strength of international humanitarian law is to restrict the possibility of using certain weapons, even if the treaty concerning them has not been ratified.
Depending on the nature of the intended target, its surroundings and the temporal and spatial perimeter of the weapon, the latter may run counter to the principles of proportionality or distinction.
Cluster munitions, for example, can cause many collateral victims: some munitions can explode months after the end of the conflict.
Joanne Kirkham is a doctoral student at the University of Paris Panthéon-Assas, specializing in the study of lethal autonomous weapons systems in international law: "
Russia, like Ukraine, has not ratified the convention on weapons cluster munitions.
So even though a certain number of States have done so, it is believed that their use may be permitted by Russia if ever they do not contravene humanitarian law.
But here, we realize that the use by Russia in densely populated areas or too close to civilian homes is prohibited by humanitarian law.
".
This use thus opens the way to legal consequences.
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To read also:
War crimes in Ukraine: what can international humanitarian law still do?
A risk of isolation
Because international humanitarian law (IHL) does not only have a symbolic value.
The fact of ratifying a treaty and contravening it, or not respecting the Geneva conventions, is a risk, explains the researcher from Paris Panthéon-Assas: "
The commitment of the responsibility of the State has consequences, a commitment to the victim, a formal apology, specific sanctions.
On the other side, there is the question of the people who deployed it, for example military commanders or soldiers who used a prohibited weapon who could be prosecuted for not having used it in the right way.
And this is the question we ask ourselves, for example, for cluster munitions
:
one could engage their criminal, individual responsibility, either at the level of the State, or at the international level.
»
If the legal consequences are rare and rather serve as a scarecrow, these texts can above all allow the international community to justify economic or political sanctions vis-à-vis an offending State.
“
As soon as the State has accepted this obligation, there are various avenues that open up, even if in terms of effectiveness, it is a little more complicated.
Generally, what happens
is what happened in Syria, for example.
We denounce, we put in place sanctions, but it is more complicated to bring this kind of question to justice
, ”explains Joanne Kirkham.
The main risk for a State is therefore to find itself isolated internationally.
Supervise from the design
International humanitarian law also intervenes upstream.
When a weapon is invented, it must be subjected to a review of legality.
We verify that the weapon does not contravene the principles of international law.
Hence the interest of having the Geneva Conventions and their very generic principles.
The case of blinding lasers is unique in this respect.
The principle of "superfluous evils" made it possible to regulate very quickly these weapons, which made it possible to blind soldiers for life.
“
This is the only example of a weapon ban before it is used.
We don't really know why, there was a very big campaign about this in the 1990s, it must be scary, blindness as a disability.
We managed to get that.
“, is surprised Philippe Lagrange, professor of law at the University of Poitiers and specialist in public international law.
If the principles of IHL do not directly exclude the invented weapon, its very nature can cause it to fall directly into one of the treaties already signed, for example that of cluster munitions.
International humanitarian law therefore makes it possible to cover a large part of the innovations in the armaments sector, but not all of them.
A very long time
Innovation can pose new problems for the law, which do not always fit into the principles and treaties that already exist.
International humanitarian law chases after innovation, sometimes several decades behind, explains Joanne Kirkham "
The creation, implementation and concretization of these texts take a lot of time, States must be agreement, whether it is written, reread, signed, ratified, that is why there are very few specific texts in relation to weapons technologies, new technologies, compared to the new technologies that fall.
»
This is the case of new areas of conflict.
What if a satellite is targeted by a weapon?
Which court has jurisdiction to rule?
Cyberspace, underwater and spatial spaces are spaces of legal vagueness.
Can the principles of humanitarian law apply to the care files of a hospital, in the same way as its physical structure?
The consequences of a blockage of digital services could however have consequences just as dramatic as a direct bombardment.
An Estonian police officer walks by a robot used to locate explosives near the Ministry of Defense building in Tallinn, Estonia, August 11, 2011. ASSOCIATED PRESS - Timur Nisametdinov
Artificial intelligence (AI) also raises new questions for international humanitarian law.
When an army corps systematically targets civilians, it is easy to find the person responsible.
But what to do when the machine has decided to fire on its own?
Supporters of AI say it will reduce blunders, critics say it will be even more complex to identify those responsible.
In any case, in Ukraine, we are still far from the war of the future.
The use of chemical weapons could lead to a toughening of Western sanctions against the Kremlin.
International humanitarian law is thus used more by belligerents and observers with the aim of politically and economically isolating the parties involved, than to legally condemn the State at fault.
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