United States v Bond: The Finale
|Jun 28 2012|
|VERTIC Blog >> National Implementation Measures|
Yasemin Balci, London
Last month, the case United States v Bond reached its final stage. Following a decision last year by the US Supreme Court which allowed Ms Carol Anne Bond to challenge her conviction under the ‘Chemical Weapons Convention (CWC) Implementation Act of 1998’, the US Court of Appeals for the Third Circuit has now reviewed her case and upheld her conviction.
The correct application of this Act in criminal matters is good news for national implementation of the CWC, as it strengthens the norm against non-peaceful use of toxic chemicals and holds persons engaging in such activities liable, but the judgment also showed some misconceptions regarding the Convention.
Carol Anne Bond was prosecuted under the CWC Implementation Act for putting highly toxic chemicals on the car door handles, doorknob and mailbox of her friend, Ms Haynes, after finding out that Haynes was pregnant with the child of Ms Bond’s husband. Ms Bond was sentenced to six years imprisonment and a fine. She argued, however, that the CWC Implementation Act did not apply to her case and also questioned the validity of the Act.
The US Court of Appeals for the Third Circuit, to which this case was remanded by the US Supreme Court, did not agree with her on these two points, though nevertheless voiced some skepticism on the breadth and use of the Act.
First, the court stated that Ms Bond’s conduct clearly fell within the Act. The Act’s language may be broad, but it is clear. According to the Act, a toxic chemical, defined as “any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals” will be a chemical weapon, except if it is intended for a peaceful purpose and its type and quantity are consistent with that purpose. The Act then prohibits certain activities, such as the acquisition, transfer and use of a chemical weapon by any person. Ms Bond acquired and used toxic chemicals with the intent to harm Ms Haynes. Her acts are therefore covered by the Act.
Secondly, the court ruled that the CWC Implementation Act is valid. In the American legal system, an act implementing a treaty will be valid if the treaty itself is valid, unless the act is not rationally related to the treaty. The court stated that as a treaty aiming to prohibit chemical weapons and related to war and peace, the CWC has a ‘quintessentially international character’ and is therefore a valid treaty. Since the CWC Implementation Act ‘faithfully tracks the language of the Convention’, it follows that the Act is valid too.
However, with respect to the first argument, the court could not help mentioning that ‘one may well question whether Congress envisioned the Act being applied in a case like this’. While the Act is not unconstitutionally broad, ‘its breadth is certainly striking, seeing as it turns each kitchen cupboard and cleaning cabinet in America into a potential chemical weapons cache’.
With respect to the second argument, while the Act is legally valid, the court is critical of its enforcement by the executive, in particular the prosecution. ‘The decision to use the Act – a statute designed to implement a chemical weapons treaty – to deal with a jilted spouse’s revenge on her rival is, to be polite, a puzzling use of the federal government’s power.’ If prosecuted for another crime, for example assault, Ms Bond would probably have received a lower sentence, but it is the prosecutor’s prerogative to decide under which law to prosecute.
In short, while there is nothing legally wrong with the application of the CWC Implementation Act to Ms Bond’s case, the court seems troubled that the Act reaches a ‘domestic dispute’. As Judge Rendell writes in her concurring opinion, application of the Act would not ‘offend our sensibilities’ if the chemicals had been applied ‘on the seats of New York subway cars’. The judges show a tendency, which can also be seen in media reports on this case, to directly link the concept of individual use of chemical weapons with terrorism.
However, this is not how the CWC was conceived. The CWC is first and foremost a disarmament, not an anti-terrorism treaty, as evidenced by the first perambulatory clause of the Convention (“[d]etermined to act with a view to achieving effective progress towards general and complete disarmament …”). Moreover, the requirement to prohibit non-peaceful activities with toxic chemicals in Article VII of the Convention covers all natural and legal persons in a state’s territory. The duty to enact penal legislation in particular is not restricted to activities with a terrorist purpose. Ms Bond is clearly not a terrorist, but since she used toxic chemicals to harm her friend through their physiological effects, it is only right she was prosecuted under an Act that criminalizes exactly that behavior.
Last changed: Jun 28 2012 at 6:05 PMBack