Secretary of Defense Donald Rumsfeld said February 5 that he is trying to write rules of engagement that would allow the U.S. military to use “nonlethal riot agents” in some situations—and perhaps in Iraq—without breaking the law. It is a difficult task, he said, citing “a treaty that the United States signed” and “existing requirements.”
In his testimony before the House Armed Services Committee, Rumsfeld was most likely referring to the Chemical Weapons Convention (CWC) and an executive order that then-President Gerald Ford issued on April 8, 1975.
The United States signed the CWC in January 1993, and it entered into force in April 1997. The treaty 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,” provided that “the types and quantities are consistent with such purposes.” In addition, the CWC allows states-parties to possess “riot control agents,” defined as chemicals that “can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure.”
The CWC, however, bans the use of riot control agents “as a method of warfare.” (See ACT, December 2002.) The gray area between using riot control agents for domestic law enforcement and for warfare remains undefined. Some proponents of using riot control agents overseas argue that law enforcement allows for military missions such as peacekeeping and counterterrorism. Some opponents argue that using riot control agents beyond domestic law enforcement would certainly undermine the CWC and might also violate U.S. obligations under the treaty.
In addition to restrictions under the CWC, the U.S. military is also limited by Executive Order 11850. The order states that “the United States renounces…first use of riot control agents in war” with four exceptions. The military may use riot control agents “in areas under direct and distinct U.S. military control”—for example, to control prisoners of war. Second, the military may use such agents when “civilians are used to mask or screen attacks and civilian casualties can be reduced or avoided,” which might include a situation in which civilians are used as human shields—a concern some military experts have raised regarding a potential conflict in Iraq. Third, riot control agents may be used in certain rescue missions. Fourth, the military may use such agents “in rear echelon areas outside the zone of immediate combat” to defend convoys against rioting civilians, terrorists, and paramilitary groups. Some analysts debate whether certain of these exceptions would violate the CWC.
The executive order requires the secretary of defense to enforce the prohibition against the use of riot control agents by the military “unless such use has Presidential approval, in advance.” In his February 5 testimony, Rumsfeld said, “Absent a presidential waiver, in many instances our forces are allowed to shoot somebody and kill them, but they’re not allowed to use a nonlethal riot control agent under the law.”
Rumsfeld, however, stated his intention to try to find ways around the restrictions when Representative Marty Meehan (D-MA) asked him if there is any way to “untangle” the restrictions against riot control agents “within the next month or so.”
Rumsfeld stated: “We are doing our best to live within the straitjacket that has been imposed on us on this subject and trying to find ways that people can—that we can write things in a way that people can understand them and function and not break the law and still, in certain instances, be able to use nonlethal riot agents.”
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