BITS Research Note 03.2
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Editorial Note: From April 28 to May 9, 2003 the first ever Chemical Weapons
Convention Review Conference will be held at The Hague. During the conference state
parties to the Chemical Weapons Convention will review the progress made, since the
convention, which bans chemical weapons, entered into force. They will review advances in
science and technology, which impact the implementation of the treaty. And they will
discuss a topic gaining more and more importance: The use of incapacitant agents and so
called non-lethal-chemicals either in law enforcement or in warfare, and its implications
on both the Convention and international humanitarian law. The latter is the topic of this
The Chemical Weapons Convention (CWC) was concluded to renounce forever
all chemical weapons. Their prohibition must be strictly observed without interfering in
the peaceful use of chemicals. This can lead into a dilemma when it comes to discriminate
between the prohibited use of chemical weapons and the not prohibited use of certain
chemicals by police forces against civil uproar. The provisions of the CWC, correctly
interpreted, provide for discerning prohibited activities from not prohibited ones.
Some months ago, information appeared about a U.S. research and
development program on non-lethal chemical weapons that violates the CWC. The
Sunshine-Project reported on such activities regarding anaesthetics and
psychoactive substances, development of long-range military delivery devices for these
chemicals, including an 81mm chemical mortar round. Their intended use is against
"potentially hostile civilians", in anti-terrorism operations[ 1 ], counterinsurgency, and other military
operations. The hostage drama in Moscow[ 2 ]
was considered as one of the scenarios for which these new weapons could be needed.
Speculations about the possible wartime use of those weapons stirred up discussions that
raised doubts on the legal line of division between the use of chemical weapons on the one
hand and law enforcement measures, including riot control purposes, on the other. The
legal aspect of the issue is: Which chemical agents are not prohibited under
Article II, paragraph 9(d) of the Chemical Weapons Convention?
The statement of Ambassador von Wagner, former chairman of the
Conference on Disarmaments Ad Hoc Committee on Chemical Weapons, made when
introducing the final draft of the CWC ten years ago, gained new relevance:
"4. Particularly riot control agents constitute a real problem.
These irritants, physically disabling agents are used around the world in law enforcement
and riot control, by police and other organs responsible for maintaining law and order.
The same agents, however, would constitute an immediate risk and danger if they were
allowed to develop into a new generation of non-lethal but nonetheless effective agents of
warfare, causing insurmountable problems in trying to distinguish in the ensuing grey area
between real and non-lethal chemical weapons as well as between
real and non-lethal warfare units.
5. Only in the last week of negotiations a point near consensus has
been reached on this important issue touching upon the very scope of the Convention. It
was possible because a common view has emerged among delegations that the preparation and
application of any method of warfare dependent upon the toxic properties of chemicals
should be banned under the Convention..."[ 3 ]
2. Warnings against a legalisation of non-lethal
Since the start of negotiations, as early as 1974, documented evidence
exists that participants pleaded to confine the use of chemicals for civil purposes to
A Canadian paper from 1974[ 4
] states in its paragraph 9 (page 3):
"In the case of harassing or irritating agents which are widely
recognised as essential for civil riot control because of their quick reaction and short
duration without injury, it is unlikely that governments would be prepared to ban their
continued development, production and stockpiling. It might on the other hand be generally
accepted that the development, production and stockpiling of incapacitating agents could
be prohibited. This acceptance would stem from the unreliability and unpredictable effects
of incapacitating agents, particularly the psychochemicals. It would seem unlikely that
governments would wish to retain such agents for civil police use. In the event of there
being a disposition to prohibit incapacitating agents but to allow irritating agents for
civil use, an expert review committee could determine into which category fell those
chemicals above the agreed threshold of effectiveness".
A paper submitted by the U.S. to the CWC negotiating body in 1977[ 5 ] stated likewise: "In addition to
chemicals that kill or permanently disable, chemicals which have temporary, incapacitating
effects are potential chemical warfare agents. For this reason, it is appropriate to
consider their inclusion in a future arms control measure. The draft Conventions presented
by the Socialist countries (CCD/361), Japan (CCD/420), and the United Kingdom (CCD/512),
all appear to place restrictions upon incapacitants as well as on other agents. In
addition, the 10-nation memorandum on CW (CCD/400) would seem to advocate the prohibition
of incapacitants. One final conclusion of the U.S. paper is: "At present
incapacitating agents do not appear to have become a major component of CW stockpiles.
Their role could increase, however, if they were not covered in a CW agreement."
In addition to the states mentioned in the U.S. paper[ 6 ], different political and regional
groups supported this view[ 7 ]. Towards the
end of the negotiations, the negotiating committee of the CD warned against the serious
dangers posed by non-lethal chemicals, if they were to develop into a new generation of
effective agents of warfare[ 8 ]. Until
the conclusion of the Convention there has been no position demanding that chemicals whose
toxic effects transgress the boundaries of the definition of riot control agents should be
eligible for law enforcement. Presently, strict observance of these boundaries has become
even more important.
A paper issued in November 2002 by the Federation of American
Scientists[ 9 ] characterises the present
dangers posed by new non-lethal agents as follows:
"Biomedical sciences and the pharmaceutical industry are in the
midst of a revolution in the science and technology of drug discovery that will
significantly complicate the control of chemical and biological weapons (CBW). The
Chemical Weapons Convention (CWC), the Biological and Toxin Weapons Convention (BWC) and
the Geneva Protocol are thus challenged by these technological developments. Scientists
contributing to this revolution need to understand the implications of their work, and
arms controllers must recognise that there are profound changes underway that will affect
the technical landscape of CBW control..." (page1)
"In fact, a categorical distinction between lethal and
non-lethal agents is not scientifically feasible. Not only are certain individuals more
susceptible to some agents, but synergy between two different non-lethal agents may make
their combination highly lethal to everyone. Rational strategies to discover such
synergistic pairs will soon be available. Thus, the development of multiple non-lethal
agents may provide a lethal CW capability, in clear violation of the Convention. Even
without synergism, stockpiles of non-lethal weapons and munitions would defeat a
fundamental goal of the Convention, to exclude completely the possibility of the use of
chemical weapons by preventing states from entering a war with a stockpile of CW whose use
is proscribed, but which might nevertheless be employed under pressure of military
necessity." (page 2)
3. Treaty provisions have to be interpreted correctly or will be
To prevent damage to the CWC, its legal authority must be strengthened
in order to uphold the fundamental humanistic achievements of this legal instrument.
Implementation of the CWC requires its interpretation. The rules of treaty interpretation
serve to apply the agreed provisions. Correct interpretation is guided by the principle
Pacta sunt servanda. The Vienna Convention on the Law of Treaties, concluded
on 23rd of May 1969 (Vienna Convention) codifies the norms of
customary international law on treaties which is binding for states and international
organisations. The general rule governing the interpretation of treaties is contained in
Article 31 of the Vienna Convention. Neglecting that rule would mean negating the law. The
following elements of this rule have a special bearing on the issues dealt with in this
Paragraph 1: A treaty shall 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.
Paragraph 3: There shall be taken into account, together with the
(c) Any relevant rules of international law applicable in the relations
between the parties.
4. The dividing line between activities prohibited under Article I and
activities not prohibited
According to the concept on which Article II is based, any toxic
chemical as defined in its paragraph 2 is a chemical weapon, "except where
intended for purposes not prohibited under this Convention, as long as the types and
quantities are consistent with such purposes
Paragraph 9 of Article II divides the exceptions into four categories
of purposes not prohibited under this Convention. Each category stands by
itself.[ 10 ]
Sub-paragraph 9 (d) exempts the use of toxic chemicals for the purpose
of law enforcement including domestic riot control from regulation. Nevertheless, their
use with the intent to cause harmful effects for humans moves them closer again to a
prohibited CW employment. The interrelated provisions discussed in this chapter separate
not prohibited action from prohibited use of chemical weapons.
- Law enforcement including domestic riot control presupposes a specific
factual situation in which domestic law and order are violated or endangered. Use of force
by police or other organs must be allowed within the scope of a states jurisdiction
to re-establish law and order[ 11 ].
- The consistency criterion of paragraph 1 of Article II stipulates, that types and
quantities of chemicals have to be consistent with the legitimate purpose. Its impact on
sub-paragraph 9(d) is significantly upgraded by paragraph 7 of Article II. A priory, it
excludes the types of agents named in one the CWC lists from being used for riot control.
The chemicals qualified as riot-control agents are characterised by their toxic effects.
Such effects are defined in much broader scope than those related to irritants. Beside
sensory irritation they also include physical disablement. Effects must manifest
themselves rapidly after exposure and disappear within a short time after termination of
use. These are the only type of chemical agents which are eligible under sub-paragraph
9(d)[ 12 ]. Further restrictions on these
exemptions are: Use of riot-control agents in bombs, spray containers or artillery
munitions, which would be inconsistent with the purpose. The same holds true for stored
quantities in excess of the requirements for the allowed purpose. All those chemicals not
in accordance with these purposes, together with their means of delivery, are prohibited
chemical weapons. They have to be declared and destroyed.
- The third provision in this context is paragraph 5 of Article 1 of the Convention. It
prohibits any use of riot control agents as a method of warfare. It does not cover other
categories of toxic chemicals since, according to paragraph 7 of Article II, they are not
eligible for purposes of sub-paragraph 9(d). Paragraph 5 of Article I also relates to
internal armed conflicts, including local, relatively small-scale outbreaks of violence.
Therefore, lawful use of riot control agents has to be counterchecked to confirm that it
does not constitute a method of warfare. The expression method of warfare has
been coined by the Geneva Conventions[ 13 ].
The humanitarian character of those norms requires their broad interpretation.
- These provisions are further supported by Article III, obligating each State Party to
declare chemicals it holds for riot control purposes.
The provisions discussed under Chapter 4 are closely interrelated. The
term riot control in sub-paragraph 9 (d) is the same as that defined in
paragraph 7 of Article II. This adds precision to the consistency criterion in Article II,
para. 1 when applied to sub-paragraph 9 d). Since the same term riot control
is used in the 5th paragraph of Article I, any toxic chemical intended to be used for law
enforcement including domestic riot control is prohibited as a method of warfare. Article
III, paragraph 1 e) provides for the transparency required. This context gives conclusive
proof, that sub-paragraph 9 d) cannot legitimise the use of any chemical agent except
those defined in paragraph 7.
6. The ordinary meaning of terms
According to their ordinary meaning, law enforcement is a
term with a general connotation, domestic riot control, in contrast, with a
special connotation. Consequently, when the question is raised which measures may be
needed to enforce law and order and which measures would be adequate for domestic riot
control, the answers will differ significantly:
A police officer on night patrol reprimanding individuals for
disturbing sleep is a measure of law enforcement. The same applies for the
dislocation and action of units of police and other security forces when riots are
immanent. The difference lies in the character and degree of the enforcement measures
ten Euros fine on the one hand, water-canons, police-sticks and tear-gas on the
other. In contrast, the term domestic riot control is unambiguous and requires enforcement
measures only of one special character, implying, among others, riot control agents.
The two terms are interrelated, the specific term (domestic riot
control) being contained in the general one (law enforcement). This relationship is
correctly expressed by the word including. Law enforcement and riot control
are not alternatives but parts of one category of purposes. This understanding is
also supported by other official versions of the conventions text:
- French: des fins de maintien de lordre public, y compris de lutte
antiémeute sur les plan intérieur
- Spanish: mantenimiento ordon, incluida la represión interna de disturbos
- Russian: pravoochanitelnie celi, vkljucaja borbu s besporjakami v strane (law
protection including fight against riots in the country).
Furthermore it should be mentioned that the treaty text reflects the
sense of wording regularly used during the negotiations. Between 1982 and 1992
irritants for law enforcement was used once[ 14 ] and the wording irritants for law enforcement and riot
control used in 14 editions of the Rolling Text.[ 15 ][ 16 ]
7. The context with the Geneva Protocol
The Preamble of the CWC refers to the Geneva Protocol in three
- Paragraph 3 recalls that the UNGA condemned all actions contrary to the principles and
objectives of the Geneva Protocol;
- paragraph 4 recognizes that the CWC reaffirms principles and objectives of and
obligations assumed under the Geneva Protocol;
- paragraph 6 states the resolve that the CWC, by excluding completely the possibility of
the use of CW through implementing its provisions, complements the obligations assumed
under the Geneva Protocol.
These statements are part and parcel of the object and purpose of the
CWC as such: To confirm the principles and objectives of the Geneva Protocol and to
complement the obligations assumed accordingly. For this mutual relationship between two
treaties Article 30, paragraph 2 of the Vienna Convention provides: "When a treaty
specifies that it is subject to, or that it is not to be considered as incompatible with,
an earlier or later treaty, the provisions of that other treaty prevail.".
As far as the scope of the prohibitions by the Geneva Protocol and
customary international law are concerned, this paper can only refer to the legal
literature commenting on the discussion of this subject, especially to volume III of the
SIPRI study[ 17 ]. This study comes to the
conclusion that the use of all toxic agents including non-lethal weapons, tear gas and
other irritants in war and in other armed conflict shall fall within the scope of the
prohibition of the Protocol as well as of the customary prohibition according to
the generally recognized rules of international law[ 18 ]. Important evidence for this interpretation is United Nations
General Assembly Resolution 2603 A (XXIV) which affirmed the comprehensive character of
The SIPRI study examined the history of the emergence of those rules in
the period following World War I up to the end of the 1960s. New impulses, also in
reaction to the use of irritants and herbicides in the Vietnam war, gave rise to a process
that finally resulted in the conclusion of the Biological and Toxin Weapons Convention and
the Chemical Weapons Convention. References in the Appendix prove that throughout the
process there was constant awareness of the comprehensive scope of the CW prohibition:
- the Report of the UN Secretary-General containing the unanimous report of the group of
consultant experts[ 19 ];
- the WHO Report on Health Aspects of Chemical and Biological Weapons;[ 20 ]
- the Statement of President Nixon of November 1969, reaffirming renunciation of the first
use of lethal chemical weapons and extending this renunciation to the first use of
incapacitating chemicals[ 21 ];
- President Nixons message of August 1970 initiating the ratification process of the
Geneva Protocol.[ 22 ]
- President Fords Executive Order 11850, of 4 August 1975 concerning renunciation of
certain uses in war of chemical herbicides and riot control agents.[ 23 ]
Throughout the negotiations of the Chemical Weapons Convention, the
achievement of a comprehensive CW ban with a comprehensive scope like the Geneva Protocol
was the generally shared objective. From the reference documents contained in the Appendix
to this research note it can be seen that the entire negotiation process of more than 20
years was a constant affirmation of this objective as reflected by state practice and opinio
juris, in other words, by the belief that this practice is consistent with the
existing law of this time. According to the principle of estoppel[ 24 ] such affirmative international
commitments strengthen international law and protect it against opportunist
interpretation. This process reached its climax in January 1989 at the Paris Conference
where 149 representatives of the State Parties to the Geneva Protocol and other interested
states (that means states not party to the Geneva Protocol) declared their determination
"to prevent any recourse to CW by completely eliminating them"[ 25 ].
After closure of the CWC negotiations, the process of strengthening the
Geneva Protocol continued through signature, ratification of and accession to the
Convention. As stated in paragraph four of the Preamble, all States Parties (be they
parties to the Geneva Protocol or not) are committed to abide by the principles and
objectives of and obligations assumed under the Geneva Protocol. Therefore, those rules
are applicable in the relations between the States Parties to the CWC as required in the
Vienna Convention, Article 31, paragraph 3 (c).
From this follows: Any interpretation of Article II, paragraph 9 (d) of
the Convention has to be in accordance with the comprehensive prohibition of use of
chemical weapons stipulated by the Geneva Protocol. (Solely the use of irritants for civil
purposes could be considered as not covered by the provisions of the Geneva Protocol.)
This excludes interpretation of sub-paragraph 9 (d) that would exempt from prohibition any
agent that is not a riot control agent as defined under Article II, paragraph 7.
8. Circumvention of the legal dividing line between prohibited
and not prohibited activities
By false interpretation[ 26
] non-lethal chemicals, while excluded by definition from use for law enforcement
including riot control purposes, are made eligible for such purposes. Law
enforcement is considered to be a purpose in itself. The argument goes: Since agent
X is not to be used for riot control purposes but for law enforcement purposes, it cannot
be a riot control agent. Therefore, it does not fall under of Article II, paragraph 7.
Consequently, the consistency criterion is not further specified and the relation with the
undefined term law enforcement deprives it of most of its relevance. Also the
safeguard against misuse as a means of warfare in Article I, paragraph 5 is bypassed. As a
surrogate for this provision, sub-paragraph 9 (c), despite having quite another function,
is artificially constructed into a clause against use of chemical agents as means of
This false interpretation negates the rules of the Vienna Convention in
toto: Pacta sunt servanda, good faith, object and purpose of the treaty, ordinary meaning
of terms, context here the interrelationship of sub-paragraph 9(d) with paragraph 7
and 1 (a) of Article II, paragraph 5 of Article I, and Article III,1 (e) as well as the
relationship to the Geneva Protocol (Article 30, paragraph 2 and Article 31, paragraph 3
The question whether a toxic chemical is not prohibited
under sub-paragraph 9 (d) will be answered by subsuming the intended purpose of its use,
its chemical properties, types (including its weaponisation), and quantities under
provisions of Article II:
- Is it a toxic chemical as defined in paragraph 2 ? if the answer is yes:
- Is it intended to be used for purposes of law enforcement including domestic riot
control as defined in sub-paragraph 9 (d) and is it not intended for use as a
method of warfare? if the answer is yes:
- Are the types and quantities of the chemical consistent with the intended purposes, and
more importantly, is the chemical not included in the CWC list and is it a riot control
agent as defined in paragraph 7 and not prohibited by the Geneva Protocol?
If the final answer is yes, the result will be: the
chemical is not a chemical weapon. However, it is prohibited as a method of warfare
according to Article I, paragraph 5, and subject to declaration according to Article III,
paragraph 1(e). If the answer is no, it is to be declared and destroyed under
Articles I, III and IV of the CWC.
10. Further action
Consideration and action by the States Parties, the policy-making
organs of the OPCW, especially at the CWC Review Conference, as well as public discussion
on this subject is required:
The Review Conference should
- reaffirm that the prohibitions of the CWC cover all chemicals regardless of their origin
or method of production[ 27 ];
- recall, that die CWC complements the obligations not to use such weapons, assumed under
the Geneva Protocol of 1925 and
- warn against any violation of these norms.
Dr. Walter Krutzsch was a member of the GDR delegation negotiating
the Chemical Weapons Convention from 1985-1990; he served as a Senior Legal Officer of the
Preparatory Committee for the OPCW from 1994-1998.
See: Appendix, 57
 The opiate
fentanyl, an anaesthetic, was used to free 700 hostages in a Moscow theatre; 128 hostages
were killed and a great number injured by the gas.
Appendix, 6, 11, 13, 18.
Appendix, 8, 9, 10, 14, 16, 20, 21, 24, 25, 27, 28, 30, 31.
Appendix, 51, 52, 53.
of American Scientists Working Group on Biological Weapons, Non-lethal biological and
chemical weapons, Washington, November 2002 http://www.fas.org/bwc/papers/nonlethalCBW.pdf
applies also for sub-paragraph 9 (c) that cannot influence the interpretation of
this wording is understood as implicitly tolerating a states practice of using toxic
chemicals for capital punishment. This was considered necessary to avoid creating an
obstacle to enter into the CWC without compromising the object and purpose and, at the
same time, to avoid infringing upon the world-wide endeavours to abolish capital
punishment. This intention would be counteracted by using it as an argument for a
misinterpretation of sub-paragraph 9 d) in order to justify the would-be legalisation of
non-lethal chemical weapons.
Krutzsch, Trapp, A Commentary to the Chemical Weapons Convention, Martinus Nijhoff
Publishers, Dortrecht/Boston/London, 1994, p.36.
expression method of warfare has been used, i.a. in the Protocol additional to
the Geneva Conventions of 12 August 1949 relating to the protection of victims of
international armed conflicts . (Protocol I ) 12.12.77, Part III, Methods and Means of
Warfare and Section I, Methods and Means of Warfare. With regard to the obligation to
respect the rules of warfare, Article 35 Basic Rules stipulates: In
any armed conflict, the right of the Parties to the conflict to choose methods and means
of warfare is not unlimited. The applicability for non-international conflicts
results from Article 43 Armed forces: The armed forces of a Party to the
conflict consists of organised armed forces, groups and units which are under a command
responsible to that Party for the conduct of its subordinates, even if that Party is
represented by a government or an authority not recognised by an adverse Party. See
also: Krutzsch, Trapp, ibid. p.18-19.
32, 33, 34, 35, 36, 37 ,38, 40, 41, 42, 43, 44, 45, 46
1982 and 1992, relevant text was used in at least 36 cases in the records of negotiation
results (Rolling Text) and official papers of participating delegations. In
those cases the following terms were used synonymously, often two different versions in
one paper in a number of cases:
law enforcement purposes (2), domestic law enforcement and riot-control
purposes (2), law enforcement and riot-control purposes (15), domestic law enforcement and
domestic riot-control purposes (14), domestic law enforcement or riot-control purposes,
such as CS, CN and CR (1), law enforcement including domestic riot-control purposes (2)
comprehensive overview is given in "The Problem of Chemical and Biological
Warfare", Volume III, CBW and the Law of War; SIPRI, Stockholm International Peace
Research Institute. 1973 Almqvist & Wiksell.
 See also
"The Problem of Chemical and Biological Warfare" ibid. p. 59 to 64.
Appendix, 15. However, of the four exceptions from the prohibition specified in the
Executive Order only that concerning the use of riot control agents in prisoner-of -war
camps may be in compliance with paragraph 9 (d) of the CWC. The others have been overruled
by the CWC since paragraph 5 of Article I prohibits the use of riot control agents as a
method of warfare.
"The Problem of Chemical and Biological Warfare" ibid. p. 64.
"Law Enforcement and the CWC, the CBW Conventions Bulletin, Quarterly Journal of the
Harvard Sussex Program on CBW Armament and Arms Limitation, issue No.58, December 2002.
Malcolm Dando, Scientific and technological change and the future of the CWC: the problem
of non-lethal weapons. disarmament forum (four . 2002), p. 42. United Nations Institute
for Disarmament Research.
go to the next page for Appendix - Documents
Related to "Non-lethal Che-micals and Law Enforcement including riot control"