When the first flash of conflict between the caravan of Central American migrants and the U.S. military burst on Sunday, the United States Customs and Border Protection agency sealed the border. We also used a chemical weapon on foreign soil in violation of international law.
“We ran, but when you run the gas asphyxiates you more,” said 23-year-old Honduran Ana Zuniga, while cradling her 3-year-old daughter.
The little girl pictured is not only unarmed, she’s unshoed. Yet, @realDonaldTrump ordered tear gas be fired against her. If this is not your America stay loud. We are putting out this fire. https://t.co/vqNBmTEPlp
— Rep. Eric Swalwell (@RepSwalwell) November 26, 2018
American police used tear gas at the Standing Rock protests; on protesters in Ferguson, Missouri in the wake of the death of Michael Brown; on the Occupy Wall Street encampment in Oakland, California, and against the Ku Klux Klan. Phoenix, Arizona used it against neo-Nazis in 2010 and anti-Trump protesters in 2017. Tear gas is arguably as American as apple pie.
Tear gas is also a chemical weapon.
“Children screamed and coughed in the mayhem of the tear gas. Fumes were carried by the wind toward people who were hundreds of feet away, not attempting to enter the U.S.,” wrote Christopher Sherman of the Associated Press of Sunday’s clash. “Yards away on the U.S. side, shoppers streamed in and out of an outlet mall.”
“Tear gas” is a catch-all term for a few riot control agents. The most common are chloroacetophenone and chlorobenzylidenemalononitrile. Immediate symptoms of riot control agents include coughing, wheezing, shortness of breath, rashes and burns. High doses cause respiratory arrest, blindness or immediate death from chemical burns to the lungs.
And it’s illegal. The 1993 Chemical Weapons Convention specifically bans the use of riot control agents in warfare. Richard Nixon also signed Executive Order 11850 which renounced the use of herbicides and riot control agents except in rare circumstances (border crossings not being among them).
What is or isn’t a war is admittedly a thorny debate. But warfare is a little easier to parse — United States law defines an “act of war” as armed conflict between military forces of any origin, or armed conflict between two or more nations. Donald Trump has instructed troops to consider a thrown rock equivalent to a rifle, and to engage the migrants accordingly.
Because Trump said that the troops he left at the border over Thanksgiving could shoot migrants for throwing rocks, it could be argued that he created warfare — armed conflict between Americans and citizens of foreign nations.
America just used a chemical weapon banned in war on Refugees. https://t.co/q4uRUuRFvE
— David Hogg (@davidhogg111) November 26, 2018
“Anybody throwing stones, rocks, like they did to the Mexican military where they badly hurt police and soldiers of Mexico, we will consider that a firearm,” Trump said. “Because there is not much difference when you get hit in the face with a rock, which as you know, it was very violent a few days ago. Very, very violent. It was a break in of a country. They broke into Mexico.”
There is little room to doubt that this creates warfare and certainly satisfies the definition of an act of war under American law, which means that the rules of war also apply. Speaking in terms of international law, you can use some chemical weapons like tear gas on your own people, but you cannot do so in warfare.
By so expressly and explicitly framing the conflict on the border as a military action, President Trump has made it easy to argue that the Chemical Weapons Convention was violated when authorizing the use of chemical weapons on migrants.
To whatever extent President Trump views the border as a warzone, he must be in turn viewed as a war criminal.
After all, this isn’t even close to the first crime against humanity that the Trump administration has dabbled with when it comes to Central American immigrants. The policy of family separation may have amounted to torture, according to the United Nations. And a former prosecutor at the Nuremberg trials called Trump’s act of separating immigrant children from their families a crime against humanity.
As for “breaking in” to Mexico, evidence suggests American munitions physically invaded Mexico to carry out chemical weapons attacks. The New York Times reported that at least two dozen canisters of tear gas were found on the Mexican side of the border.
Someone tweeted at me “what are they supposed to do?” And the answer is “never fire tear gas at children for any reason ever until the end of time.” https://t.co/bTzZtCZJU6
— hend amry (@LibyaLiberty) November 26, 2018
Not only does the shockingly cavalier use of a chemical weapon on unarmed migrants seeking asylum (which is both legal and a human right) likely amount to a stark violation of international law, but stands as a grim portent of what will happen when the huddled masses yearning to breathe free finally, tempest-tossed, reach our border.
Sunday was a preamble, both for the migrants and for the Trump administration. What is a nation willing to do when its first salvo against unarmed migrants is chemical weapons?
We don’t even need to wonder what comes next, we’ve been told: Rifles.
Katelyn Kivel is a contributing editor and senior legal reporter for Grit Post in Kalamazoo, Michigan. Follow her on Twitter @KatelynKivel.