Last modified: Thursday, August 29, 2013
Legal experts weigh in on Supreme Court case concerning Chemical Weapons Convention
FOR IMMEDIATE RELEASE
Aug. 29, 2013
BLOOMINGTON, Ind. -- An international group of leading arms control experts, composed of former diplomats, government officials and professors of international law, has filed an amicus brief urging the U.S. Supreme Court to uphold federal legislation that implements U.S. treaty obligations under the Chemical Weapons Convention. This group includes David P. Fidler from the Indiana University Maurer School of Law.
The case, Bond v. United States, involves the prosecution of Carol Ann Bond under criminal provisions in the Chemical Weapons Convention Implementation Act. Bond was convicted of federal crimes under the act for using toxic chemicals against a woman who had an affair with Bond's husband. The act criminalizes, among other things, using a "chemical weapon," defined as any "toxic chemical" that can "cause death, temporary incapacitation or permanent harm," except where the use involved activities intended for "peaceful purposes."
Bond challenged the federal government's interpretation of the Chemical Weapons Convention, asserting that the treaty did not apply to her case. But "Bond's suggestion that the Convention's reference to 'other peaceful purposes' permits all 'nonwarlike' uses is inconsistent with the Convention's plain terms," the brief states. She also argued that the CWC Implementation Act was unconstitutional because it exceeded Congress' authority to enact legislation to implement a valid treaty, encroached on state authority for local criminal matters and thus violated principles of federalism.
In the brief, the arms control experts support the U.S. government's position that, properly interpreted, the treaty requires states parties, including the United States, to apply its prohibitions on development, possession and use of chemical weapons to individuals, such as Bond, who obtain and use toxic chemicals as weapons. The legislation implementing the treaty in the U.S. fully complies with this obligation by including penal provisions applicable to individuals regardless of their motive or the impact of their actions.
According to the brief, the Chemical Weapons Convention "takes a deliberately comprehensive approach" under which "all toxic chemicals constitute chemical weapons and must be banned for both state and non-state use unless they are possessed and used for certain enumerated purposes and in quantities consistent with those purposes." The experts urge the Supreme Court to reject Bond's argument that her use of toxic chemicals to harm another person represents a "peaceful purpose" under the treaty and is not subject to the treaty's prohibitions. The brief emphasizes that the negotiators of the treaty applied a comprehensive strategy, in the words of the the agreement, "to exclude completely the possibility of the use of chemical weapons."
In terms of the constitutional question, the brief observes that both the Executive Branch and Congress subjected the Chemical Weapons Convention to careful constitutional scrutiny and concluded that it created no constitutional problems, including under federalism principles. The experts reject Bond's claims that U.S. implementation of the treaty could have relied on state law, and the brief argues that the federal government's foreign policy and national security interests in eliminating development, possession and use of chemical weapons in any context require federal legislation to create a uniform, consistent set of legal prohibitions, including penal sanctions.
The Supreme Court is expected to rule on Bond v. United States in its 2013-14 term.
The brief was submitted by lawyers at Debevoise & Plimpton LLP in New York on behalf of the experts, and, in addition to Fidler, it was signed by Ralf Trapp, former German arms control diplomat; Donald A. Mahley, former U.S. ambassador; professor Julian Perry Robinson, University of Sussex, retired; Thomas Graham Jr., former U.S. ambassador; professor Graham S. Pearson, University of Bradford; Guy Roberts, former U.S. official in the Department of Defense and NATO; Amy E. Smithson, James Martin Center for Nonproliferation Studies; professor David A. Koplow, Georgetown Law Center; and professor Barry Kellman, DePaul University College of Law.
The amicus brief is available online. Fidler is the James Louis Calamaras Professor at the Indiana University Maurer School of Law, where he has developed internationally recognized expertise on national and international legal issues involving chemical, biological, nuclear, "non-lethal" and cyber weapons. He can be reached at 812-855-6403 or dfidler@indiana.edu.
