Practice Relating to Rule 74. Chemical Weapons
The Military Manual (1993) of the Netherlands states: “It is generally accepted that this prohibition [of the use of chemical weapons] applies to States which have not ratified the Gas Protocol; it belongs to customary law.”
The Military Handbook (1995) of the Netherlands provides a general prohibition on the use of chemical weapons.
The Military Manual (2005) of the Netherlands states:
0452. Under the 1925 [Geneva] Gas Protocol, the use of asphyxiating, toxic or similar gases, liquids and solids is prohibited. Generally this prohibition is also assumed to apply to States which have not ratified the Gas Protocol, because it now belongs to international customary law. A number of States ratified the Gas Protocol with a reservation. Mostly, this reservation means that, when one party to an armed conflict uses a prohibited means of chemical warfare, the adversary is released from the reservation (principle of reciprocity).
0453. A treaty of more recent date is the 1993 Chemical Weapons Convention, also applicable to the Netherlands. This Convention prohibits the development, production, procurement and storage of chemical weapons. It also expressly prohibits the use of chemical weapons. This prohibition of use also applies to retaliation against an adversary which itself used chemical weapons first.
0454. The Chemical Weapons Convention defines chemical weapons as:
- toxic chemicals, including their precursors, except where intended for purposes not prohibited under the Convention. A “toxic chemical” is here defined as: any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals. A “precursor” is any chemical reactant which takes part at any stage in the production by whatever method of a toxic chemical, regardless of the method of production;
- munitions and other devices, specifically designed to cause death or other harm through the toxic properties of those toxic chemicals;
- equipment specifically designed for use directly in connection with the employment of munitions and other devices.
0458. Because of the military significance of modern chemical weapons, many States still allow for the possible use of such weapons.
Iraq’s use of chemical weapons in the war with Iran from 1980 to 1988 unmistakeably breached the Gas Protocol. Furthermore, Iraq had ratified that Protocol in 1931, with the “reciprocity reservation”.
In its chapter on non-international armed conflict, the manual states:
It is prohibited to use weapons causing unnecessary suffering or excessive injury, or that are indiscriminate. This means that biological, chemical, toxic or intoxicating weapons … are forbidden.
In its chapter on peace operations, the manual states: “As for the use of resources, the rules of the humanitarian law of war also apply. Thus the use of chemical or biological weapons is prohibited.”
The Definition of War Crimes Decree (1946) of the Netherlands includes the “use of deleterious and asphyxiating gases” in its list of war crimes.
According to the Chemical Weapons Act (1995) of the Netherlands, the development, production, acquisition, stockpiling, retaining, transfer and use of chemical weapons is prohibited.
Under the International Crimes Act (2003) of the Netherlands, “employing asphyxiating, poisonous or other gases and all analogous liquids, materials or devices” is a crime, when committed in an international armed conflict.
In its judgment in the Van Anraat case in 2005, the Hague District Court of the Netherlands stated:
It has been established that the accused, consciously and solely acting in pursuit of gain, has made an essential contribution to the chemical warfare program of Iraq during the nineteen eighties. His contribution has enabled, or at least facilitated, a great number of attacks with mustard gas on defenseless civilians. These attacks represent very serious war crimes.
In its judgment in 2007, the Hague Court of Appeal stated:
As results from the case file (in the period referred to in the charges), the Iraqi regime carried out multiple attacks with (among others) mustard gas during the war with Iran on places in that country, as well as on the border region between Iraq and Iran, where Kurdish population groups lived that were suspected of collaboration with the Iranian enemy. Those attacks caused the death of at least thousands of civilians (that did not participate in the conflict) and caused permanent and severe health problems to very many persons. It is beyond doubt that the regime in Bagdad by doing so committed extensive and extremely gross violations of the international humanitarian law by using a weapon that was already prohibited by the Geneva (Gas) Protocol of 17 June 1925.
The defendant has made an essential contribution to these violations – at a time that many, if not all other suppliers “pulled out” with regard to the increasing international pressure – by supplying many times in the course of several years (among other matters) very large quantities of a precursor for mustard gas; in doing so the defendant made significant profits. Those supplies enabled the Iraqi regime to (almost) continue their deadly (air) attacks in full force during a number of years. Apparently the defendant did not give his deliberate support to the aforementioned gross violations out of sympathy for the targets of the regime, but – as it should be assumed – the defendant acted exclusively in pursuit of large gains and fully neglected the consequences of his actions. Even today the defendant does not show any sense of guilt or any compassion for the numerous victims of the mustard gas attacks.
The Court recognizes that the proven offences were committed over more than twenty years ago and that the defendant is a man of advanced age, who is to be expected to spend a large part of the remaining years of his life in prison. The Court will only be able to attach limited weight to this slightly mitigating circumstance. In this case the most important aspect concerning the determination of the appropriate sanction – considering the extreme gross violation of the principles of humanitarian law that took place and the important supporting role that was played by the defendant – is to point out to the victims and survivors, as well as to the international legal community, how much value is put on the actions of the defendant and what severe punishment can only be the consequence of these actions.
In 1969, during the debate in the Third Committee of the UN General Assembly on Resolution 2597 (XXIV) reaffirming Resolution 2444 (XXIII), the Netherlands stated that it was “essential to update and broaden … the Geneva [Gas] Protocol and to extend [its] application to cover armed conflicts which are not international in character”.
In 1986, in a letter on the Iran–Iraq War submitted on behalf of the European Community to the UN Secretary-General, the Netherlands stated that the European Community member States were “particularly alarmed by renewed violations of humanitarian law and other laws of armed conflict, including the use of chemical weapons, and they condemn such violations wherever they occur”.
In 1989, in reply to a note verbale of the UN Secretary-General on the subject of chemical weapons, the Netherlands declared that it did not possess chemical weapons.
In 1989, the Netherlands co-sponsored a draft resolution in the UN Commission on Human Rights which expressed “grave concern about reports of killing of unarmed Kurdish civilians, in particular by military attacks during 1988 using, inter alia, chemical weapons and causing mass exodus to neighbouring countries”.
In 1991, during a debate in the First Committee of the UN General Assembly, the Netherlands expressed on behalf of the European Community, “the hope that States will make their commitment to the future Chemical Weapon Convention unambiguously clear” and declared: “It is important that [chemical] weapons be banned everywhere and forever.”
In an explanatory memorandum submitted to the Dutch Parliament in 1993 in the context of the ratification of the Chemical Weapons Convention, the Government of the Netherlands stated: “The absolute prohibition of the use of chemical weapons (Article 1 § b) should fall within the laws and customs of war, as mentioned in article 8 of the Criminal Law in Wartime Act.” It went on to say: “Thus, the use of chemical weapons during armed conflict is at all times a violation of article 8, and prosecutions and adjudication of such a violation will therefore take place in accordance with its provisions.”
At the First Conference of States Parties to the Chemical Weapons Convention in 1997, the Netherlands stated on behalf of the European Union: “Member states of the Union have worked actively to promote the universality of the Convention. We are committed to ensuring … that the treaty is universal.” It reconfirmed its good intentions by once more emphasizing its commitment to global chemical disarmament.