War crimes: providing the means

“People or companies that conduct (international) trade... in weapons or raw materials used for their production, should be warned that – if they do not exercise increased vigilance – they can become involved in most serious criminal offences. It should be made clear to them that they will face prosecution and long-term prison sentences...”

Court of Appeal The Hague, Judgment, 9 May 2007

Earlier this month, the Supreme Court of the Netherlands upheld the conviction of a Dutch businessman, Frans van Anraat, for being an accessory to war crimes committed by the Iraqi regime in the 1980s. It thereby confirmed in most regards a 2007 judgment by the Court of Appeal in The Hague, which had found Van Anraat guilty of being an accessory to a violation of the laws and customs of war for having 'intentionally provided the opportunity and means' for attacks with mustard gas carried out in 1987 and 1988.

Between 1980 and 1988, Van Anraat had supplied Saddam Hussein's regime with at least 1'160 tons of TDG. TDG (short for 'Thiodiglycol' ) can be used to make mustard gas, a poisonous gas first used in World War I. This gas was used by Iraq in multiple attacks during the war with Iran on places in that country, as well as on the border region between Iraq and Iran, which is mainly inhabited by Kurds. Mustard gas, as well as TDG, today fall under the 1993 Chemical Weapons Convention (CWC).

In the Court's view, Van Anraat knew that the TDG he supplied would be used for the production of mustard gas. Although TDG also has civilian applications, the Appeals Court considered that in the quantities as supplied by Van Anraat, the TDG could not have been used for non-military purposes. And, because Iraq was at war, Anraat was also 'very aware of the fact that – 'in the ordinary course of events' – the gas was going to be used', and that this use was actually taking place.

It should be noted that Dutch export control law did not require a special license for the export of TDG until the beginning of 1985. And of course, the Chemical Weapons Convention only entered into force in 1997. The 1925 Geneva Protocol certainly prohibited the use of mustard gas in war, but it said nothing about the possession, production or transfer of chemical weapon precursors. In addition, it was arguably only applicable in international armed conflicts, (although the customary international law norm against chemical weapons use was possibly already broader in scope and applied also to internal armed conflicts).

Van Anraat did not commit war crimes himself, nor did he supply the weapons with which they were committed. He 'only' furnished a precursor thereof (although an essential one) - a chemical moreover, that has legitimate civilian applications. Nevertheless, Van Anraat was convicted of a crime (a separate civil case will also be brought against him by victims of the attacks) because the Court found that 'it is beyond doubt that the regime in Bagdad...committed extensive and extremely gross violations of the international humanitarian law' – violations, to which Anraat made a 'conscious' and 'substantial contribution'.

In finding that serious violations of the laws of war had been committed, the Court did not exclusively base itself on the fact that a prohibited weapon had been used. Therefore, this judgment should also be of interest to persons trading in other types of weapons, including small arms and light weapons (SALW). The judgment sets another important precedent for holding criminally responsible persons who transfer arms that are likely to be used to commit gross violations of human rights law or serious violations of international humanitarian law. Hopefully, a future Arms Trade Treaty will ensure greater accountability in the international arms trade.

Maya Brehm

Photo Credit: Adapted from 'Justitia in Frankfurt' by chaouki on Flickr.

References:

• Gerechtshof 's-Gravenhage (Court of Appeal The Hague), Judgment, 9 May 2007, LJN: BA6734.

• Hoge Raad der Nederlanden (Supreme Court of the Netherlands), Judgment, 30 June 2009, LJN: BG4822.
  

CCM: Positive developments

Earlier this week, the Lao People's Democratic Republic ratified the 2008 Convention on Cluster Munitions (CCM) at a special event in New York at United Nations Headquarters.

Lao PDR’s accession to the CCM is significant not least because this South East Asian nation is the most heavily affected country in the world from unexploded submunitions due to a secret American bombing campaign in the 1960s and 1970s that pulverised entire areas of the country such as the Plain of Jars. A generation on, and Lao PDR’s people – the majority of them not even born during the bombing period – are saddled with a deadly legacy of unexploded ‘bombies’ (submunitions) in their fields, rivers and woods that threaten livelihoods and their very lives.

The figures are staggering. Lao PDR’s National Unexploded Ordnance Programme believes that, even under ideal firing conditions, at least 30 percent of the more than 260 million submunitions dropped on the country during the Indochina War would have failed to function as intended, leaving an estimated 78 million bombies to pose hazard to people going about their daily lives. Fifteen of Lao’s seventeen provinces were left affected by cluster munitions and other unexploded ordnance, and today ten provinces are still severely infested – with an estimated 300 people injured or killed per year.

As such, Lao PDR is always going to be a special case for the new treaty. It is generally (if tacitly) recognised by others involved in the Oslo process that – even with the international assistance promised by other members of the CCM – Lao PDR is unlikely to achieve the treaty’s ten-year deadline for clearance and will eventually require an extension (as has just occurred in the Mine Ban Treaty context, for example, for certain countries that have not completed anti-personnel mine clearance activities for various reasons). But, hopefully, membership of the CCM will be a means to continually draw attention to and resources for post-conflict activities to reduce the hazards of unexploded submunitions and other ordnance on Laotian civilians.

At the same ceremony, the Democratic Republic of the Congo – another cluster munition-affected country – signed the CCM, which makes it the 96th to do so. And Iraq made a statement indicating its intent to join the CCM once domestic steps have been completed. Also, a week earlier, on 11 March, the Mexican Senate approved that country’s ratification of the CCM.

Although a country can provisionally apply the CCM at any time, to enter into force internationally the CCM needs to be ratified by 30 states. Less than five months after the CCM’s signing ceremony in Oslo last December, the treaty can already count on 6, and more will surely follow as 35 other states have publicly committed to ratify as soon as possible. As Iraq’s statement indicated, the number of signatories, which presently stands at 96, is also certain to increase soon.

So far many of the world’s largest producers and users of cluster munitions remain outside of the treaty. But there were encouraging developments last week in the US. On 11 March, President Obama signed the Omnibus Appropriations Act for fiscal year 2009, already passed by Congress. It enacts a ban on American exports of most cluster munitions, and has been described as a “qualified ban”.

Meanwhile, many members of both chambers of Congress have apparently cosponsored legislation to enact a ban on most cluster bombs – galvanised by Senators Patrick Leahy and Dianne Feinstein. And President Obama’s transition team are apparently studying the issue of whether the US should go the whole hog and join the CCM.

We’ll seek to provide more analysis in coming weeks.

John Borrie

Photo credit: Mary Wareham. Ambassador Kanika Phommachanh, Permanent Representative of the Lao PDR to the UN in New York, depositing her government's ratification of the Convention on Cluster Munitions with the UN's Office of Legal Affairs represented by Treaty Section Chief Annebeth Rosenboom. Laos became the fifth state to ratify - a total of 30 are required for the treaty to enter into force.

Lao reference: Lao PDR National Regulatory Authority, Lao National Unexploded Ordnance Programme and UNDP, Hazardous Ground: Cluster Munitions and UXO in the Lao PDR (2008).

IEDs a threat to peace and security

The Times ran an interesting article earlier this week entitled 'The success of the home-made bomb: increased use of improvised electronic devices poses threat to peace and security'. The article is the latest in a steady trickle of media reporting about what are frequently described as Improvised Explosive Devices (IEDs), which are a frequent weapon of insurgents in Iraq, the Taleban in Afghanistan and by various other violent actors in many conflicts around the world.

IEDs certainly aren't a new phenomenon, but they've become of increasing concern and profile for Western militaries this decade as they've found themselves in zones in which their troops are exposed to the weapons to a greater extent. The Times article mentioned above contends that up to 300 IEDs are detonated somewhere in the world every month. The countries affected include Algeria, Chechnya, Pakistan, Colombia and Sri Lanka as well as Afghanistan and Iraq mentioned already. Moreover, the Washington Post reported in July that suspected Shiite militiamen in Iraq have even begun using powerful rocket-propelled bombs described as Improvised Rocket Assisted Munitions, or IRAMs:

"They are propane tanks packed with hundreds of pounds of explosives and powered by 107mm rockets. They are often fired by remote control from the backs of trucks, sometimes in close succession. Rocket-propelled bombs have killed at least 21 people, including at least three U.S. soldiers, this year."

(You can see some pictures of IRAMs on the Long War Journal.)

Increasing amounts of money and other resources are being spent by some governments on detection and countermeasures in order to protect their troops. But, of course, beyond the military threats there are also the deadly hazards to civilians of IEDs - who usually have no protection whatsoever, and are, indeed, often the intended victims of IED attacks. Nor is this just a headache in places like Iraq: at least one media report indicates that the U.S. Department of Homeland Security and the FBI agree that "the homemade explosive devices that have wreaked havoc in Iraq pose a rising threat to the United States." Intelligence and law enforcement agencies in many other countries are also concerned.

More focused and systematic data collection about IEDs is needed, as well as some policy dialogue at the international level in the arms control field about whether and how work in this area might be of benefit. Unfortunately, we're headed into arms control silly season from here until the end of the year, with UN First Committee in New York, the biological weapons, anti-personnel mines and Certain Convention Weapons Conventions' meetings in Geneva, and the Convention on Cluster Munitions signing ceremony in Oslo where most multilateral arms control attention will be - not to mention an upcoming U.S. presidential election and an unfolding world financial crisis.

However, someone thinking and blogging on these things on a frequent basis is Landmine Action UK's Policy & Research Manager Richard Moyes, whose Explosive Violence blog Disarmament Insight also has a link to at right. Richard is also, it seems, keeping a useful ad hoc log of explosive violence incidents, many of which pertain to IED use: you can check that out here.

We certainly can't claim ignorance that IEDs are a problem, even if a lot more investigation and attention is needed.

John Borrie

Image credit: borrowed from Richard's Explosive Violence blog.

Body counting

The Atlantic Monthly online is running an interesting story in its April issue looking at the on-going - and increasingly nasty - debate over the grim question of how many Iraqis have died as a result of the March 2003 invasion.

Estimates of these deaths vary widely, from around 80,000 to as high as a million, according to the article. Estimates out there include a 2006 study in the Lancet, a British medical journal , research by the World Health organisation published in the New England Journal of Medicine and (not mentioned in the article) on-going documentation work by an independent research group based in the UK, Iraq Body Count.

Debate about methodologies and numbers is all useful in the name of thorough research (although it seems to have become personally rather bitter over Iraq). But whichever estimate proves to be nearest the mark, we should always remember the shattered human lives and the misery and insecurity behind the statistics - otherwise such concerns take on a tinge of ghoulishness. Even the lowest Iraq estimates demonstrate the civilian casualties are considerable, as they are in a number of other conflicts around the world not paid so much attention.

In addition, Megan McCardle, the Atlantic Monthly article's author, puts an interesting spin on the debate by introducing the notion of "anchoring effects" - well known thanks to cognitive scientists like Daniel Kahneman and the late Amos Tversky, whose work on mental biases we've discussed before on this blog. Their empirical research, and that of others, has shown that human beings tend to fixate on numbers we've heard, even if they're arbitrary or wrong. These effects persist, even when the number has been discredited.

"We anchor most strongly on the first number we hear, particularly when it is shocking and precise—like, say, 601,027 violent deaths in Iraq. And even when such a number is presented only as a central estimate in a wide range of statistical possibilities (as the Lancet study’s figure was), we tend to ignore the range, focusing instead on the lovely, hard number in the middle. Human beings are terrible at dealing with uncertainty, and besides, headlines seldom highlight margins of error.

When information supports positions we already hold, we of course tend to accept it less critically; when the opposite is true, we can be quite good at shutting the information out. “Motivated reasoning” is a mighty force, as anyone who has argued politics in a bar at 2 a.m. can attest. Scientists have observed the process, using a functional MRI machine to peer into the brain while it processes political statements, and their report is unsurprising. When we are assessing neutral statements, activity is concentrated in the areas that control higher reasoning. But when we process statements with political valence, suddenly our emotional cortices light up as well. Indeed, some research indicates that the emotion precedes, and governs, the higher cognition—that logic is, literally, an afterthought.

But cognitive bias is not limited to partisans; we all anchor on the numbers we hear. The Lancet article’s central estimate exerts a gravitational pull on even its harshest critics, who seem to be mentally benchmarking their estimates by how much they differ from that 601,027. Others who are not motivated to disprove that number tend to orbit even closer."

Collecting data on conflict is difficult and, by necessity, rather imprecise, which is why in the domain of statistics methodology is so important. Relative margins of error can have huge impacts on data, as could the consequences of embedding spurious "facts" in the minds of the public and of policy-makers. Something we all have to bear in mind.


John Borrie

Picture by mattsmith569 retrieved from Flickr.com.

Cognitive Dissonance: Don’t Mention the War…

The way we perceive our world can have a significant impact on our decision-making and the way we interact with others. A recent Washington Post article reported on a psychological experiment carried out by Roy Baumeister that revealed one way our perceptions can influence how we view others.

In the experiment, Baumeister asked participants to describe a situation in which they hurt someone else and a situation when they were personally hurt. They were also asked to describe how much pain these incidents caused another (or caused them) and whether their unkindness (or the unkindness directed at them) was justified.

Come time to find out, when participants were on the receiving end of an unkind act (like a betrayal or a lie), they felt the act was “inexplicable, senseless and immoral” and that the pain caused by the act lasted a long time. (Surprise, surprise.) When these same participants were asked about the time they hurt someone else, however, they viewed their actions as “justified” and that they caused only brief pain.

This phenomenon, known to psychologists as cognitive dissonance, plays a major role in our professional and personal lives. It means that when we inflict pain on another person (or group of people) we recognize this is not the right thing to do. We also believe that we’re a good person deep-down, which is in direct conflict with our behavior. Thus our brains downplay the harm we’ve caused.

Alternatively, when we’re on the receiving end of a wrongdoing, we often can’t imagine seeing the situation from the perspective of the person that caused us harm. Who empathizes with a “wrongdoer”? In this case, it’s much easier to focus on the immoral and nasty nature of the acts against us.

An interesting aspect of these dissonant feelings, and how we subsequently behave, is that the process happens in our subconscious. Shankar Vedantum, a Washington Post columnist, observed that a perfect example of cognitive dissonance at work is the way Republicans and Democrats who supported the war in Iraq are now justifying it. Many Republicans refuse to believe there were no weapons of mass destruction in Iraq (someone must have run off with them) and some Democrats seem to simply forget they supported the invasion at all.

According to one researcher, “[This] is the way memory works and the way the brain works. We ignore, forget or dismiss information that suggests we might be wrong. We rewrite our memories to confirm what we believe.” In this case, subconscious, dissonant feelings are influencing policymakers’ behavior and the decisions they’re making (or not making) in the present.

Like everyone else, disarmament diplomats also experience cognitive dissonance in their work. Awareness of this phenomenon is important because valuable time can be wasted while playing the “blame game” and trying to best justify our mistakes.


Ashley Thornton


References

Shankar Vedantam, “Bush: Naturally, Never Wrong”, Washington Post (9 July 2007), available online here.

Carol Tavris & Elliot Aronson, Mistakes Were Made (but Not by Me): Why We Justify Foolish Beliefs, Bad Decisions, and Hurtful Acts, May 2007: Harcourt, 304 pages.

On the Ropes

BBC Radio Four (Intelligent Speech is how the Beeb modestly describes it) has some of the best radio programmes in the English-speaking world.

Many will be familiar with the BBC World Service. But unless you’ve lived in the numerous isles off just of the west European coast, chances are that you will not quite understand how addictive the station is. From aficionados of Women’s Hour to eccentric fans of Mornington Crescent and Just a Minute, Radio Four listeners are a peculiarly well-read, well informed group of obsessives. (I should here, I suppose - if I have to - give the The Archers addicts a mention. But they’re a very strange lot and are probably right now listening to one of the twice-repeated daily episodes dedicated to the sleepy, fictitious farming town of Ambridge and its drama-queen inhabitants).

(Disarmament Insight team note – for our part, we’re addicted to Melvyn Bragg’s weekly BBC Radio Four show and pod cast on the history of ideas, In Our Time.)

It was to just such an erudite public audience that Dr Hans Blix, former Director-General of the International Atomic Energy Agency (IAEA) and former Chairman of the UN Monitoring, Verification and Inspection Commission in Iraq bared his soul.

On the Ropes is a half-hour interview slot in which journalist John Humphreys interviews famous people about a difficult time in their lives, in which they have had to endure stormy weather.

Dr Blix was asked tough questions about the time leading up to the 2003 invasion of Iraq. No doubt all reading this will remember how Dr Blix, along with Dr ElBaradei of the IAEA, regularly faced the Security Council to give accounts of the progress that UN inspectors were making in the search for weapons of mass destruction (WMD) in Iraq.

In the On the Ropes interview we learned of Dr Blix’s dawning realization that there were no major stocks of biological weapons in Iraq, or any other type of WMD for that matter. He was also increasingly uncomfortably aware that this understanding was not going to be able to stop the war. He talked also in the interview about Dr David Kelly, the British bioweapons inspector who died soon after the invasion.

The interview is thought-provoking, honest and, at times, moving. It’s a fascinating account of how one man – Blix – with the knowledge was also powerless to stop the war, despite being able to tell the facts openly and honestly. Something this Swedish lawyer is still determined to do.

I recommend you take the time to listen to On the Ropes and – who knows? – you may become as addicted to Radio Four as the rest of us.


Guest blog from Patricia Lewis

Patricia is Director of UNIDIR.


References

Dr. Blix’s radio interview is online at: http://www.bbc.co.uk/radio4/ontheropes/pip/sy4r8/

BBC Radio 4’s show entitled “In Our Time” can be downloaded at: http://www.bbc.co.uk/radio4/history/inourtime/

Photo of Hans Blix retrieved from Flickr, see http://www.flickr.com/photos/epsen/447192121/