Shortly after the poison-gas raid on the Moscow theater, I raised the question whether gas really ought to be called a “weapon of mass destruction.” But as a matter of current positive international law, it is. Therefore, Putin’s action in ordering its use constituted a crime. [If this is wrong, I’d be happy to be corrected.]

What follows from that? Precisely nothing. That’s the problem with international law.

What ought to follow from it? I’m not sure.

We now know some of the details. The hostage-takers had bombs, with which they threatened to blow the place sky-high, killing all 800 hostages. Apparently the Russian plan was to knock out everyone in the theater with a mix of aerosolized Fentanyl (a powerful, low-dose, short-acting synthetic narcotic, used by intravenous injection as a surgical anaesthetic) and a sedative (probably a short-acting benzodiazepine, but no one has said). [Or maybe it wasn’t Fentanyl itself, but one of its even-more-potent analogues, some of which have effective doses measured in micrograms, which makes them roughly three orders of magnitude more potent per unit weight than heroin.] The idea would have been to knock everyone out with the gas, sweep in, deal with the hostage-takers, and then quickly inject all the survivors with Naloxone, an opioid antagonist. That could have saved virtually everyone who didn’t get shot in the raid. However, no one bothered to tell the EMTs or the hospitals that they should expect to be dealing with acute narcotic overdose. (Security, you know.)

High doses of narcotics can cause people to stop breathing by paralyzing the nerve that drives the diaphragm, so there’s not much time to get the antidote in before they start to lose brain cells. After three minutes, it’s probably just as well if the victim doesn’t come back. After ten minutes, forget about it. But those times are from when breathing stops, which isn’t right away, so the thing might have been feasible if they’d had a wave of EMTs coming in right behind the commandos.

Okay, it could have been managed better, but it wasn’t. That may be criminally stupid, but it’s not in itself criminal. And the overall idea was actually pretty creative, compared to a dumb Attica-style raid, which would have been completely legal but might have killed many more people if those bombs had gone off. [If the gas had been used only to incapacitate, I’m pretty sure that would have made it legal; but if I recall the rules correctly using gas to knock someone out so you can then shoot him violates the law of war.] No one that I’ve seen has proposed a way of doing the job that would have killed fewer people. (Other that is, than executing the actual plan competently with respect to handling the casualties.)

So let’s assume, in the absence of a better assumption, that the plan chosen (modulo the poor planning for the aftermath) was actually the casualty-minimizing way of ending the crisis, short of giving in to the attackers’ demands. And let’s also assume that it constituted a war crime. Forgetting that nothing will actually be done about it, what should be done about it?

Search me.

I’ve always rather liked Michael Walzer’s suggestion that an official forced by the situation to commit a crime because the alternative would be worse — the “dirty hands” situation — ought to then resign. That doesn’t make doing the right, but criminal, thing impossible, but it puts a tax on doing so that encourages officials to search diligently for alternatives.

But so what? Putin isn’t going to resign, no one is going to call for him to resign, and no one’s going to kidnap him and fly him to the Hague to stand trial for using poison gas. International criminal trials are for losers.

It’s not as if I had a better suggestion to offer. But there it is.


Wrong! Jacob T. Levy says that the relevant conventions make an exception for domestic law enforcement. I’m not sure I find that entirely comforting, though he also explains why SH’s gassing of the Kurds wouldn’t be covered by the exception. He provides the relevant citations.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com