Conjectures about non-lethal weapons and the CWC*

by Malcolm Dando


Tear Gas - © Jos van Zetten from Amsterdam, the NetherlandsA smart suited young academic (hereafter Acad) put down his glass and emphasised that Article II.I (a) of the Chemical Weapons Convention (CWC) states that chemical weapon means "Toxic chemicals and their precursors, except where intended for purposes not prohibited under the Convention, as long as the types and quantities are consistent with such purposes" and he added that toxic chemical is defined in Article II.2 to mean "Any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals. This includes all such chemicals, regardless of their origin or their method of production..." (see www.opcw.org)

 

The old, bald, and somewhat dishevelled bartender (hereafter BS) looked up and remarked that Acad certainly seemed to know a great deal about the CWC, but asked why, given that definition of a chemical weapon, Article II.9(d) of the Convention gives as an allowable purpose "Law enforcement including domestic riot control purposes"? Surely, he suggested riot control agents (RCAs) are toxic chemicals?  Acad struggled to find the appropriate page in his blue plastic covered short version of the Convention and tried to buy time by indicating that he wanted to get the precise wording.

 

His equally smart but older, and obviously ex-military friend (hereafter Cap), said that he could help out on that issue. The Swiss, he explained, in their paper on Riot Control and Incapacitants Agents under the Chemical Weapons Convention (RC-2/NAT.12, 9 April 2008) for the Second Review Conference had noted that RCAs are defined in a special category for the purpose of the Convention. Article II.7 states that riot control agents are "Any chemical not listed in a Schedule, which can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure." So it is clear, he argued, that RCAs are in a different category from incapacitating agents that act directly on the Central Nervous System to cause longer physiological effects such as on cognition, perception or consciousness.

 

Navy recruits experience mild tear gas effects inside the 'confidence chamber' at Recruiting Training Commands Great Lakes.Acad, sensing a quick recovery of his expert status, added that obviously the States negotiating the Convention could not have banned domestic riot control and had sensibly agreed that all RCAs would be subject to declarations. BS said he could follow that argument, but he was still puzzled as to why they had also agreed in Article I.5 that "Each State Party undertakes not to use riot control agents as a method of warfare."  Cap stepped in again to help Acad on this point. He said it was easy to understand given the history of the use of RCAs in warfare, for example to enhance the use of lethal force and the danger of misunderstanding leading to retaliation with lethal agents. “Yes, remember how it all began with RCAs in the First World War”, chipped in Acad.

 

BS smiled. This was not the first time he had been in discussions about the CWC in his Athens bar. He replied that he could accept those points, but noted that "method of warfare" was not defined in the Convention. Moreover, he asked, didn't one Sate Party ratify the Convention with a different interpretation of it from its allies, so as to allow the use of such agents in defensive military modes of operation? (see, William J Clinton, Report on the Chemical Weapons Convention – Message from the President, PM 129, 23 June, as printed in Congressional Record (daily edition), 24 June 1994, p.S7635) Acad reached for his iPod and said he would check that out on the net.

 

BS said he was glad that Acad wanted to continue their conversation because there was something else that puzzled him about Article II 9. (d), so he hoped that Acad and the Cap might also be able to help him with another question.  Looking up from his iPod, Acad readily agreed because he was sure this part of the Article was quite clear. Taking the opportunity, BS said he was puzzled because the text seemed to imply that domestic riot control purposes were a sub-category of a larger category of law enforcement purposes and thus, although "law enforcement" was also not defined in the Convention, it seemed to him that there must also be other categories of law enforcement chemicals like incapacitants.

 

A Syrian soldier aims an AK-47 assault rifle from his position in a foxhole during a firepower demonstration, part of Operation Desert Shield. The soldier is wearing a Soviet-made Model ShMS nuclear-biological-chemical warfare mask.By this time Acad was clearly getting fed up and said in no uncertain terms that he was not going to put up with this nitpicking from BS. He was sure that the CWC was going to prevent the misuse of toxic chemicals for hostile purposes ever again. People who knew him realised that would not put BS off from asking further questions: "What do you make of the claim that using an agent that attacks the Central Nervous System to deal with a hostage crisis is perfectly acceptable as law enforcement under the Convention?" he asked (see News Chronology section of The CBW Conventions Bulletin, 59, March 2003, pp 13-14)). Cap stepped in to prevent trouble and explained that State Parties had rather different objectives when they negotiated the Convention: some wanted to exclude RCAs and other such agents from the prohibition entirely while others wanted to include them as much as possible. So he argued that the text resulting from the necessary compromises has a lot of ambiguities (see, Michael Crowley, Dangerous Ambiguities: Regulation of Riot Control Agents and Incapacitants under the Chemical Weapons Convention, October, 2009, available at www.brad.ac.uk/acad/nlw).

 

That does not matter as long as the main job of dismantling the huge Cold War stocks of lethal chemical weapons is successful said Acad.  However, BS had a further problem.  He argued that Acad’s optimistic position rested on the assumption that an arrangement with so many ambiguities could remain stable in an era of major advances in neuroscience and drug delivery and police and military concerns over how to deal with terrorists and wars amongst the people. Acad had had enough of this questioning and said firmly that if the problem was important he was sure that State Parties would sort it out in the upcoming Third Review Conference in 2013. BS turned towards another customer and, in parting, said that he did not know much about what would happen at the Review Conference but at least he was sure that he did not know!

* With apologies to all Classicists.

 

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