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U.S. Grapples with Use of Nonlethal Agents
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Kerry Boyd

Picture yourself commanding U.S. forces entering Baghdad. As you march through the streets, you encounter Iraqi mobs armed with stones and two-by-fours exacting revenge against Baath party members or venting their anger against your troops. There might be combatants mixed in with civilians. Your orders are to secure the area with minimum civilian casualties while also protecting your soldiers. If you could choose between firing bullets into the crowd, charging with police batons, or temporarily incapacitating them with chemical agents, what would you do?

To many Pentagon officials, the appeal of such nonlethal chemical agents is obvious. Yet, the wisdom of using nonlethal chemical weapons is far from clear. Critics contend that so-called nonlethal chemical weapons are nearly as lethal as well-known killers, such as grenades and artillery. They argue that their use would undermine the Chemical Weapons Convention (CWC), which bans chemical weapons and requires their destruction. And they warn that much of the world would see U.S. use of riot control agents or stronger nonlethal chemical agents as hypocritical, since the Bush administration cites Iraqi possession and use of deadly chemical weapons as one of its primary reasons for overthrowing President Saddam Hussein. Much of the debate revolves around different legal interpretations of the CWC and U.S. law.

The use of chemical nonlethal weapons is sure to be a subject of discussion in The Hague, where delegations from around the world will gather April 28-May 9 for the first CWC review conference. It is unclear whether any state-party to the treaty will raise the issue at the conference, but many nongovernmental organizations are encouraging states to discuss the legality of using riot control agents and other incapacitating chemicals in military operations.

The Pros and Cons

The basic argument for using nonlethal chemical agents is that military commanders and soldiers often have only two options in conflict: kill or be killed. Drawing on the U.S. military experience in places such as Somalia and the former Yugoslavia, proponents argue that there are times when the military should have an alternative—something that temporarily incapacitates hostile forces or civilians without killing them.

Nonlethal weapons, according to the 1996 Department of Defense directive that established the department’s policies on nonlethal weapons, “are explicitly designed and primarily employed so as to incapacitate personnel or materiel, while minimizing fatalities, permanent injury to personnel, and undesired damage to property and the environment.” There are various types of nonlethal weapons, including rubber bullets, electromagnetic weapons, sticky foam, and chemical agents. Development and use of chemical agents designed to incapacitate people is particularly controversial.

One military option is using riot control agents to disperse crowds. The CWC defines riot control agents as chemicals that “can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure.”

Another nonlethal weapon the military might consider is chemical incapacitants such as the fentanyl derivative used to rescue hostages in a Moscow theater last October, which have more severe effects, such as loss of consciousness, and are longer lasting and more likely to cause fatalities. A general rule of thumb for understanding the difference between riot control and other chemical incapacitating agents is that riot control agents are designed to cause irritation and disperse a crowd while other chemical incapacitants, such as calmatives, are designed to incapacitate a person completely so that they could not run away.

With the need for a military alternative to killing in mind, Secretary of Defense Donald Rumsfeld told Congress February 5 that he was working to find ways to allow troops to use riot control agents without breaking any laws. In addition, the National Research Council, a private organization that provides services to the government, issued a report in November 2002 that recommended giving development of nonlethal weapons, including chemical incapacitants, a higher priority.

Some experts, however, question the claim that chemical incapacitants are less lethal than conventional weapons. They note that the gas Russian forces used to knock out Chechen militants and their hostages in Moscow defeated the captors but also killed at least 127 of about 750 hostages—nearly 17 percent. (See ACT, November 2002.) A 2003 Federation of American Scientists paper concluded that an “exceptionally safe” agent “delivered under ideal conditions to a uniformly healthy population” would kill 9 percent of those it sought to incapacitate. Under more realistic conditions, more people would die, since civilian populations would include many people in less than perfect health. By contrast, the FAS paper noted, the lethality of artillery in combat is 20 percent and is 10 percent for fragmentation grenades.

Debating Legality under the CWC

As the CWC review conference nears, arms control advocates are hoping to advance another key criticism of using chemical incapacitants in Iraq or other battlefields: that it would violate the treaty.

The CWC is somewhat murky on the issue of using such agents beyond domestic law enforcement. One provision bans the possession and use of chemical weapons but allows the use of “toxic chemicals and their precursors” in “law enforcement including domestic riot control purposes.” Another provision allows states-parties to possess “riot control agents” but bans their use “as a method of warfare.” (See ACT, March 2003.)

Therefore, a gray area between using nonlethal chemical agents for domestic law enforcement and for warfare remains undefined. U.S. officials argue that overseas peace-support missions fall under the rubric of law enforcement, therefore allowing the use of riot control and, possibly, stronger chemical incapacitants. But critics contend that the United States is the only country that considers it legal under the CWC to use chemical agents overseas.

Some critics have expressed particular concern that the United States would use such agents in Iraq. The debate will continue over the legal, moral, and military aspects of using nonlethal chemical agents. The issue, however, might be decided on the battlefield.