Presentation by the Center for Arms Control and Non-Proliferation and the Scientists Working Group on Biological Chemical Weapons to the Open-Ended Working Group for the preparation of the Second Review Conference of the Chemical Weapons Convention
Advances in the life sciences are revealing increasingly powerful and sophisticated means for chemically manipulating human physiology, consciousness, mental function and behavior. There is growing interest among some governments in exploiting these advances to develop incapacitating chemicals for use in situations such as hostage rescue, counter-terrorism, counter-insurgency and urban warfare.
The Chemical Weapons Convention (CWC) bans the development, possession and use of chemical weapons that cause death, temporary incapacitation or permanent harm. The Convention clearly prohibits the use of incapacitating chemical weapons as a method of warfare, and no controversy exists about this conclusion. Nonetheless, as reported by the International Weapons of Mass Destruction Commission in June 2006, “[t]here is an increasing interest among some governments to adopt a more flexible interpretation of the CWC rules on the use of incapacitating chemical weapons, even as a method of warfare, in order to be able to use them in diverse situations.”
We are concerned that the increasing interest in incapacitating chemical weapons may make the development and use of such for armed conflict more likely, despite the clear prohibition of such activities. We are concerned that this increasing interest could ultimately lead to the development and use of chemical weapons for purposes of coercion, repression, wanton violence and social and political oppression. We are concerned that the development of new incapacitating chemical weapons may gradually undermine the protections that the CWC provides to military forces and civilians alike
To help prevent these negative outcomes, States Parties to the CWC must implement the law enforcement provision correctly, both in terms of its scope and applicability and in terms of the types of toxic chemicals that are consistent with law enforcement purposes under the CWC. Equally, States Parties must collectively establish additional measures that will facilitate the objective and accurate application of the treaty and ensure that compliance by States Parties is consistent and transparent.
Thus, States Parties should put forward and record their views on the law enforcement provision at the Second Review Conference. We do not anticipate that these statements will produce consensus at this time, but the presence of more evidence of State Party positions will significantly assist the task of objective, accurate and consistent treaty implementation.
To supplement this approach, CWC States Parties should, in their review of the text of the Convention, confirm in clear terms that the CWC prohibits the use of all toxic chemicals, including riot control agents, as a method of warfare. They should consider declaring that Schedule 2 and 3 chemicals are not of a type consistent with any law enforcement purpose under the CWC.
More generally, States Parties should make more frequent use of the Convention’s consultation and clarification process in order to clarify their respective policies with regard to incapacitating agents.
In keeping with the recommendations made by the International Weapons of Mass Destruction Commission, the States Parties should develop a procedure through which they declare the types and quantities of toxic chemicals, including riot control agents, they retain for law enforcement purposes. Such a procedure can help prevent the law enforcement provision from being misused to disguise the development and stockpiling of incapacitating chemicals intended for use in armed conflict.
Finally, the States Parties, in their decisions at the Second Review Conference, should establish a working group on toxic chemicals and law enforcement. They should task the working group to examine and report on the following issues:
- Common understandings of the meaning of the term “law enforcement” as used in Article II.9(d) in its context and in light of the object and purpose of the CWC and other relevant international law
- Criteria, standards and methods for objectively determining the types of toxic chemicals consistent with law enforcement purposes under the CWC.
Incapacitating Chemicals and the Law Enforcement Provision
On behalf of the Center for Arms Control and Non-Proliferation and the Scientists Working Group on Biological and Chemical Weapons, thank you for the opportunity to speak today. The Center has been working for nearly 30 years to reduce the threats posed by nuclear, chemical and biological weapons. We played a leading role in efforts to secure the US ratification of the Chemical Weapons Convention (CWC). Since 1989 the Scientists Working Group has been working to promote cooperative international action to prevent the development and use of biological and chemical weapons.
The topic of our presentation today is incapacitating chemicals and the law enforcement provision of the CWC. By “incapacitating chemicals” we mean those chemicals which are more powerful than declared riot control agents and whose chemical action on specific biochemical processes and physiological systems produce temporary physiological or mental effects, or both, which render individuals incapable of concerted effort in the performance of specific tasks. By definition, incapacitating chemicals must be designed and used without the intent to kill. That is not to say that they can not kill – recent experience clearly demonstrates that they can, and do.
Advances in the life sciences are revealing increasingly powerful and sophisticated means for chemically manipulating human physiology, consciousness, mental function and behavior. There is growing interest among some governments (particularly the United States and Russia) in exploiting these advances to develop and use incapacitating chemical weapons for law enforcement purposes.
Moreover, as reported by the International Weapons of Mass Destruction Commission in June 2006, “[t]here is an increasing interest among some governments to adopt a more flexible interpretation of the CWC rules on the use of incapacitating chemical weapons, even as a method of warfare, in order to be able to use them in diverse situations.” Such situations include those associated with military occupation, peacekeeping, hostage rescue, urban warfare, counter-insurgency and counter-terrorism.
We are concerned that the increasing interest in incapacitating chemical weapons may make the development and use of such for armed conflict more likely, despite the clear prohibition of such activities. We are concerned that this increasing interest could ultimately lead to the development and use of chemical weapons for purposes of coercion, repression, unjustified violence and social and political oppression. We are concerned that the development of new incapacitating chemical weapons may gradually undermine the protections that the CWC provides to military forces and civilians alike
To help prevent these negative outcomes, States Parties to the CWC must implement the law enforcement provision correctly, both in terms of its scope and applicability and in terms of the types of toxic chemicals that are consistent with law enforcement purposes under the CWC. Equally, States Parties must collectively establish additional measures that will facilitate the objective and accurate application of the treaty and ensure that compliance by States Parties is consistent and transparent. Today we offer some thoughts on both of these subjects.
We will start, however, by highlighting some of our recent efforts to promote discussions of incapacitating chemical weapons. In 2003 we issued a widely cited technical analysis that demonstrated why so-called non-lethal incapacitating agents are repeatedly found to be, in fact, lethal. We have attached copies of this analysis to our written submission. In June 2005 we organized, with the Geneva Forum, a day-long symposium on “Incapacitating Biochemical Weapons: Scientific, Military, Legal and Policy Perspectives and Prospects,” attended by over 60 scientists, military experts, diplomats and representatives of international governmental organizations and civil society.
Today, we announce the publication of a new book on this topic, titled “Incapacitating Biochemical Weapons: Promise or Peril?” The book contains contributions from all of the speakers to the 2005 symposium, plus additional experts. It covers the scientific, operational, humanitarian, human rights, legal and political issues surrounding the development and use of incapacitating chemicals for military and law enforcement purposes. A broad range of views are represented. It is available here today, and we encourage you to take a copy, read it, and bring it back to your governments for consideration.
Nearly 60 years of effort have thus far failed to develop “usable” incapacitating agents, primarily because they have failed to solve the “dose-response problem.” This complex problem lies at the intersection of science, application and politics. It is described in detail in our 2003 analysis, and it is nicely illustrated by a 40 year-old statement by the Chair of the UK Chemical Defence Advisory Board: “any chemical agent, a small dose of which is capable of profound disturbance of bodily or mental function, is certain to be able to cause death in large dose…and no attack with a chemical warfare agent is likely to be designed with the primary objective of avoiding overhitting.”
Today, some governments appear to believe that scientific and technological advances, including increasing understanding of the human nervous system, will finally solve the dose-response problem. These advances are suggesting new ways to manipulate human physiology and brain function. However, today and for the foreseeable future, incapacitating chemicals will likely continue to cause a significant number of deaths when used under circumstances where the goal is to incapacitate the vast majority of those exposed, yet where there is little to no ability to control the exposure conditions and the individual dose delivered. As Russian researchers reported at the Third European Symposium on Non-Lethal Weapons in 2005: “If the level of 95 percent efficiency is absolutely required … there is no chance to eliminate hard consequences and fatalities. Calculations show that the majority of the hostages can get serious poisoning and part of them— fatality. This is the cost of releasing if no other solutions [are] left.”
The Russian researchers’ report brings into focus the fact that any “solution” to the dose-response problem will involve both technical development and military and political determinations that set the maximum “acceptable” level of mortality and morbidity for incapacitating chemical agents. Such determinations can and do change over time and vary from user to user. For instance, in the 1960s, a likely lethality rate of 2% or less was generally considered acceptable when developing an incapacitating agent for use in armed conflict (which is subject to fewer restrictions on the use of potentially lethal force than is law enforcement). More recent requirements for the development of “non-lethal” weapons for use by military forces appear to be either more or less stringent (ranging from 0.5% to 5% lethality rate). Some responses to the Russian use of a fentanyl-type agent in 2002 suggest that some believe a 15% lethality rate is, at least in some circumstances, “acceptable.”
Turning now to the provisions of the Chemical Weapons Convention, the CWC bans the development, production, acquisition, stockpiling, retention and use of toxic chemicals that cause death, temporary incapacitation or permanent harm, except, according to Article II.1(a), “where intended for purposes not prohibited … as long as the types and quantities are consistent with such purposes.” One of those purposes not prohibited, listed in Article II.9(d), is “law enforcement, including domestic riot control.”
This provision was controversial during the CWC’s negotiation, and it has raised questions since the treaty was completed. It has been discussed and debated at length in policy circles, but the CWC process has not formally addressed its meaning, its intersection with the types and quantities limitation, or the concerns surrounding it with respect to the potential development of incapacitating chemical weapons.
Any reading of the law enforcement provision must address two main questions. First, what actions qualify as law enforcement purposes under the CWC? Second, what types of toxic chemicals are consistent with such purposes? Today we offer some thoughts on both of these questions. Ultimately, they must be collectively addressed by the States Parties to the Convention.
In considering these questions, we are guided by three treaty interpretation principles found in the Vienna Convention on the Law of Treaties: first, that a treaty must be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose;” second, that interpretation must take into account “any relevant rules of international law;” and third that interpretation must take into consideration “subsequent [state] practice in the application of the treaty,” insofar as that practice “establishes the agreement of the parties regarding its interpretation.”
With regard to the first question, we submit that law enforcement purposes under the CWC include:
- Domestic law enforcement within a state’s own territory or areas subject to its jurisdiction, but not in areas not subject to its jurisdiction
- Regulation of the behavior of prisoners of war in accordance with the rules of international law
- Extrajurisdictional law enforcement undertaken by military forces in accordance with international law during military occupation or peacekeeping operations, such as:
- maintaining public order and safety in areas subject to their control
- ensuring the security of their members and property, the occupying administration, and the lines of communication used by them
- enforcing the laws of the occupied territory and the laws promulgated by the occupying authority pursuant to its responsibilities under the international law of occupation
We submit that law enforcement purposes under the CWC DO NOT include actions taken:
- Against organized armed groups which exercise such control over part of a state’s territory as to enable them to carry out sustained and concerted military operations, or which engage in protracted, non-terrorist armed violence against governmental authorities, irrespective of their degree of territorial control
- Against combatant forces during those law enforcement purposes permitted by international law listed above (the types of law enforcement activities that international law allows military forces to undertake address the interaction of military troops and non-combatants, not the engagement of combatant forces)
With regard to the second question, the CWC makes clear that toxic chemicals listed in Schedule 1 of the Verification Annex may not be developed, produced or used for any law enforcement purpose. Meanwhile, existing riot control agents are clearly often consistent with law enforcement purposes under the CWC (this is not an absolute – it is unlikely, for instance, that artillery shells containing an existing riot control agent are consistent with such law enforcement purposes).
In between the existing riot control agents and the Schedule 1 chemicals lies a wide range of toxic chemicals, including the chemicals listed on Schedules 2 and 3 of the Verification Annex, and fentanyl and its derivatives. As described in several chapters of our book, there are other potential incapacitants either in existence or on the horizon.
International human rights law obligates governments contemplating the use of force to protect the right to life, prohibits governments from arbitrarily taking the life of persons subject to their jurisdiction, and mandates that they refrain from inflicting cruel inhuman and degrading treatment on individuals. Thus, international human rights law requires that any use of force must be governed by certain principles. First, the use of force must be justified by the particular circumstances at hand. Second, both the use of force and the effects of its use must be strictly proportionate to, and no more than absolutely necessary for, the legitimate objective to be achieved. Third, the use of force must take into account the need to protect individuals from indiscriminate or arbitrary effects of it use.
In keeping with international human rights law, we submit that the more toxic a chemical is (as determined, inter alia, by the nature and duration of its effects and the dose required to achieve those effects) and the more difficult it is to control the effects of its use (i.e. to control the individual dosage received and/or the exposure conditions), the less likely that the chemical (alone and/or in the context of its delivery system) is of a type consistent with law enforcement purposes under the CWC, and the greater the restrictions that must be placed on its development, production, and use. Thus, for instance, most Schedule 2 and 3 chemicals are unlikely to be consistent with any credible law enforcement purpose under the CWC. Excluding the use of toxic chemicals for capital punishment, we submit that a toxic chemical that is likely to have unpredictable or uncontrollable, severely damaging or potentially lethal effects is generally not of a type consistent with any valid law enforcement purpose under the CWC. Also, lest there be any doubt, States Parties to the CWC are always obligated to ensure that their development, production, stockpiling or use of any potential incapacitating agent is consistent with the provisions of the Convention. There are no free passes.
State practice suggests that the CWC is more restrictive in connection with the use of toxic chemicals by military forces in extraterritorial law enforcement activities than it is in connection with such use in domestic law enforcement activities. CWC States Parties have never claimed the ability to use, or have actually used, toxic chemicals other than riot control agents for the types of law enforcement activities permitted by international law. Indeed, extraterritorial law enforcement activities do not benefit from the wider discretion international law generally recognizes that governments have within their own territories. Moreover, the CWC’s object and purpose of prohibiting the use of chemical weapons in armed conflict means that heightened scrutiny, and extra safeguards, are appropriate when extraterritorial military activities involving toxic chemicals are at issue.
The Russian use of a fentanyl type agent in the Dubrovka theatre siege in October 2002 raised the issue of whether some toxic chemicals other than riot control agents might be consistent with some law enforcement purposes. However, the nervousness and concern expressed by States and CWC experts about this incident suggests that such agreement has not yet been definitively established among the States Parties. Indeed, although the agent may have seemed consistent with certain law enforcement purposes prior to its use, States Parties might conclude upon examination that this agent (and other fentanyl type agents) may not be consistent with any valid law enforcement purpose under the CWC. More attention by States Parties is needed on the issue of how to determine if a toxic chemical is of a type consistent with law enforcement purposes under the CWC.
The law enforcement provision of the CWC deserves direct attention from the States Parties at the Second Review Conference. Without such attention, a small number of States Parties may continue to develop inappropriate perspectives on this provision and to pursue more extensive research and development on incapacitating chemical weapons.
To prevent such actions from introducing uncertainty into the CWC, States Parties should put forward their views on the law enforcement provision, on the record, at the Second Review Conference. We do not anticipate that these statements will produce consensus at this time, but the presence of more evidence of State Party positions will significantly assist the task of objective, accurate and consistent treaty implementation.
To supplement this approach, CWC States Parties should, in their review of the text of the Convention, confirm in clear terms that the CWC prohibits the use of all toxic chemicals, including riot control agents, as a method of warfare. They should consider declaring that Schedule 2 and 3 chemicals are not of a type consistent with any law enforcement purpose under the CWC.
More generally, States Parties should make more frequent use of the Convention’s consultation and clarification process in order to clarify their respective policies with regard to incapacitating agents.
In keeping with the recommendations made by the International Weapons of Mass Destruction Commission, the States Parties should develop a procedure through which they declare the types and quantities of toxic chemicals, including riot control agents, they retain for law enforcement purposes. Such a procedure can help prevent the law enforcement provision from being misused to disguise the development and stockpiling of incapacitating chemicals intended for use in armed conflict.
Finally, the States Parties, in their decisions at the Second Review Conference, should establish a working group on toxic chemicals and law enforcement. They should task the working group to examine and report on the following issues:
- Common understandings of the meaning of the term “law enforcement” as used in Article II.9(d) in its context and in light of the object and purpose of the CWC and other relevant international law
- Criteria, standards and methods for objectively determining the types of toxic chemicals consistent with law enforcement purposes under the CWC.
Technological advances in the life sciences raise issues that the CWC process must confront now to forestall potentially more dangerous developments for governments, militaries, and societies. In the broadest strategic sense, the fundamental question facing States Parties is whether the potential benefits of introducing a new category of chemical weapons into the world are worth the potential detriments.
The Second Review Conference provides an opportune moment to evaluate the Convention in light of emerging capabilities and threats. It should establish strategies to prevent complacency or fear of controversy from influencing the potential military and law enforcement trajectories of increasingly powerful, sophisticated, and dangerous incapacitating chemicals.
