Weapons of Mass Destruction?

By Eileen Servidio,
President of the School of International Relations and Diplomacy at AGS, Professor and Chair of International Law

Posted on April 24th, 2013

Phew. We found some. Weapons of mass destruction. Right in Boston. Who would have thought it? But there they were.  I know this because Dzhokhar Tsarnaev, the younger of the two brothers alleged to have committed the Boston marathon bombings, was charged, April 15, with, inter alia:

“Unlawfully using and conspiring to use a weapon of mass destruction (namely, an improvised explosive device) against person and property within the United States used in interstate and foreign commerce and in an activity that affects interstate and foreign commerce, which offense and its results affected interstate and foreign commerce (including but not limited to, the Boston Marathon, private businesses in Eastern Massachusetts, and the City of Boston itself), resulting in death, in violation of 18 U.S. C. § 2332a.”[1]

Who would have thought that one would witness the use of weapons of mass destruction (WMD) in Boston?  Not I in any case. A bombing in Boston? Yes, that could be expected. Unfortunately, one can expect a bomb anywhere. But a WMD? No, not in Boston.

However, there is no doubt that the charge is legally, if not logically, founded. Among the definitions of WMD under 18 U.S. C. § 2332a is “any destructive device as defined in section 921 of this title (i.e. explosive device)."

Jumping over to section 921, one reads:

“(4) The term “destructive device” means—
(A) any explosive, incendiary, or poison gas—
(i) bomb,
(ii) grenade,
(iii) rocket having a propellant charge of more than four ounces,
(iv) missile having an explosive or incendiary charge of more than one-quarter ounce,
(v) mine, or
(vi) device similar to any of the devices described in the preceding clauses;
(B) any type of weapon (other than a shotgun or a shotgun shell which the Attorney General finds is generally recognized as particularly suitable for sporting purposes) by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, and which has any barrel with a bore of more than one-half inch in diameter; and
(C) any combination of parts either designed or intended for use in converting any device into any destructive device described in subparagraph (A) or (B) and from which a destructive device may be readily assembled.
The term “destructive device” shall not include any device which is neither designed nor redesigned for use as a weapon; any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar device; surplus ordnance sold, loaned, or given by the Secretary of the Army pursuant to the provisions of section 4684(2), 4685, or 4686 of title 10; or any other device which the Attorney General finds is not likely to be used as a weapon, is an antique, or is a rifle which the owner intends to use solely for sporting, recreational or cultural purposes.”

In other words the term "weapon of mass destruction" can almost mean any device that is a weapon not used for sporting, recreational or cultural purposes. (And therefore Iraq did have WMD, as every country would have according to this.

I have a problem with this. When I think of WMD, I think, chemical weapons, nuclear weapons, biological weapons capable of killing hundreds, perhaps thousands at a time; it is the word  ‘mass’ that implies that. Not weapons consisting of, and I quote the criminal complaint, “low-grade explosives that were housed in pressure cookers”.

In criminal law, the importance of the different degrees of behavior and reaction to this behavior cannot be stressed enough. The use of the term WMD, in this and similar cases, is not necessary for the federal government to go into its homeland security mode. The fact that the act can be recognized as an act of terrorism is enough for this to happen. The definition of WMD in the federal texts is a far cry from the definition generally offered on an international level.

The United Nations Commission on Conventional Armaments (CCA) defined the concept of WMD in 1948 as including “atomic explosive weapons, radio active weapons, lethal chemical and biological weapons, and any weapons developed in the future which have characteristics comparable in destruction effect to those of the atomic bomb or other weapons mentioned above”.[2]

Resolution 32/84 of the Assembly General of the United Nations relative to the Prohibition of the Development and Manufacture of New Types of Weapons of Mass Destruction and New Systems of Such Weapons reaffirms this definition on 12 December 1977.[3]  Other General Resolutions in this area dating from 1996 to 2009 refer also to this definition.[4]

Words are important in law. They mean precise things. Definitions of criminal behavior that are overly broad are generally considered dangerous, giving too much power to those who prosecute.  And no matter how serious the Boston bombing was, and it was, this does not take away ones right to put into question laws that are not only inappropriate but truly harmful to the criminal system.

The federal definition of WMD is large, gathering in it weapons that would be incapable of having the ‘mass’ effect that the terms so obviously implies. There is not only no convincing legal reason for this definition, it is prejudicial to the notion of WMD itself. It devalues the dangerousness of the concept. One does not call a slingshot a lethal weapon (although it could be). One does not call a homemade bomb a WMD.