An interesting recent decision by the European Court of Human Rights rejects a challenge based upon article 7 of the European Convention (non-retroactivity of criminal law). In Van Anraat v. Netherlands, the applicant challenged his conviction for war crimes based upon his involvement in the supply of ‘mustard gas’ (or thiodiglycol) to the Iraqi regime during the 1980s.
Van Anraat (shown with Saddam Hussein in the photo) argued that this was not a prohibition under customary international law. He said the use of such a weapon ‘could not be seen as morally or legally different from the use of napalm (an incendiary weapon) by United States forces during the Vietnam War (1959-1975) and was moreover insignificant in comparison with the possession of nuclear weapons by a small number of States and their actual use in anger in 1945. In these circumstances, he argued, he could not have been expected to realise at the time of the Iran-Iraq war that he was acting illegally by reason of his commercial activities.’ (para. 74).
A Chamber of the Court held as follows
89. Of the norm-creating character of the 1925 Geneva Gas Protocol there can be no doubt. This Protocol was opened for signature at a time when the use of noxious chemical substances on European battlefields was still a recent memory, with the explicit intention, stated in its Preamble, that the prohibition of any such future use should be “universally accepted as a part of International Law, binding alike the conscience and the practice of nations” (see paragraph 23 above).
90. The Court then notes that beginning in 1972 many of the States which had ratified the 1925 Protocol subject to a reservation of no first use withdrew their reservations, thus expressing their consent henceforth to be bound unconditionally. Also in 1972 a new conventional instrument was laid open for signature, the Biological Weapons Convention (see paragraph 37 above), which explicitly reaffirms the prohibition contained in the 1925 Geneva Gas Protocol (see paragraph 39 above). By the beginning of the Iran-Iraq War this treaty had been ratified or acceded to by a considerable majority of the States then in existence; others continued to do so even as the war continued (see paragraph 38 above). The Court takes these developments as proof not only of State practice consistent with the norm created by the 1925 Protocol but also of opinio iuris. The issuing, by a number of Governments, of instructions to their armed forces proscribing the use (or the first use) of chemical weapons (see paragraph 40 above) reinforces this view, as indeed does the drafting history of the Chemical Weapons Convention (see paragraph 51 above).
91. Finally, the Court must have regard to the repeated condemnation throughout the Iran-Iraq war by the General Assembly of the United Nations (see paragraphs 42-46 above) and the Security Council (see paragraphs 47-50 above) of the use in that war of chemical weapons.
92. The Court thus finds that at the time when the applicant supplied thiodiglycol to the Government of Iraq a norm of customary international law existed prohibiting the use of mustard gas as a weapon of war in an international conflict.
To the extent that the conflict might be deemed a non-international armed conflict, the Court said that Iraq was bound by common article 3 of the Geneva Conventions, adding that the Appeals chamber of the International Criminal Tribunal for the former Yugoslavia, in the Tadic Jurisdictional Decision, held that there was a rule of customary international law prohibiting the use of chemical weapons by States against civilian populations within their own territory (para. 94).
Responding to the arguments about nuclear weapons and napalm, the Chamber said: ‘Incendiary and nuclear weapons are subject to separate regimes not relevant to the present case (see paragraphs 34 and 41 above). That being the case, the applicant's comparison of mustard gas with napalm and nuclear weapons is irrelevant to the case before the Court.’ (para. 76)
Thanks to Fannie Lafontaine.