By Michael Crowley
Since its entry into force in 1997, the Chemical Weapons Convention (CWC) and its associated implementing body, the Organisation for the Prohibition of Chemical Weapons (OPCW),1 have become an important mechanism for global action combating the use of chemical weapons against armed forces and civilian populations under any circumstances, as demonstrated in Syria.
Riot Control Agents
Riot control agents, commonly known as tear gases, are defined by the CWC as “any chemical not listed” in one of three schedules of restricted chemicals that can produce “rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure.”4 Their use as a “method of warfare” is specifically prohibited under the CWC.5 The convention, however, permits the use of such chemicals for “law enforcement including domestic riot control purposes,”6 provided they are used in “types and quantities” consistent with such purposes.7
If the OPCW does not take appropriate action, the situation could dramatically worsen as a result of ongoing development, marketing, and subsequent deployment of a range of systems capable of delivering far greater amounts of riot control agent over wider areas or more extended distances than currently possible with standard law enforcement RCA dispersal mechanisms, such as hand-held sprays, grenades, and single-projectile launchers.
In recent years, the OPCW, notably its Scientific Advisory Board, finally has begun to examine these issues. In 2012 the board raised its concerns regarding “reports of the commercial availability of munitions apparently designed to deliver large amounts of riot control agents over long distances.”23 To date, however, few states-parties have clarified their national positions in this area.
Although the use of appropriate types and quantities of riot control agents for law enforcement purposes is permitted under the CWC, certain countries have developed additional weapons employing other distinct toxic chemicals, notably so-called incapacitating chemical agents (ICAs). These weapons, which ostensibly are for law enforcement, skirt or breach the convention’s prohibitions.
Preparing for 2018
1. For an online version of the text of the Chemical Weapons Convention (CWC), see Organisation for the Prohibition of Chemical Weapons (OPCW), “Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction,” n.d., https://www.opcw.org/fileadmin/OPCW/CWC/CWC_en.pdf.
2. OPCW Technical Secretariat, “The OPCW in 2025: Ensuring a World Free of Chemical Weapons,” S/1252/2015, March 6, 2015.
3. OPCW Technical Secretariat, “Report of the Advisory Panel on Future Priorities of the Organisation for the Prohibition of Chemical Weapons,” S/951/2011, July 25, 2011, para. 13.
4. CWC, art. II.7.
5. Ibid., art. I.5.
6. Ibid., art. II.9
7. Ibid., art. II.1.a.
8. Exec. Order No. 11850, 40 Fed. Reg. 16187 (April 8, 1975). See also U.S. Department of Defense, “Law of War Manual,” June 2015, sec. 6.16, http://www.defense.gov/Portals/1/Documents/pubs/Law-of-War-Manual-June-2015.pdf.
9. James D. Fry, “Contextualized Legal Reviews for the Methods and Means of Warfare: Cave Combat and International Humanitarian Law,” Columbia Journal of Transnational Law, Vol. 44, No. 2 (February 2006): 453-519.
10. Sunshine Project, “A Survey of Biological and Biochemical Weapons Related Research Activities in Turkey,” Sunshine Project Country Study, No. 3 (December 8, 2004), p. 15, http://www.sunshine-project.de/infos/Laenderstudien/Country%20Report%20Turkey.pdf.
11. Michael Crowley, Chemical Control: Regulation of Incapacitating Chemical Agent Weapons, Riot Control Agents and Their Means of Delivery (Basingstoke, Hampshire: Palgrave Macmillan, 2016), pp. 50-70.
12. Jeffrey Gettleman, “Kenya Investigates Use of Tear Gas on Schoolchildren,” The New York Times, January 20, 2015.
13. BBC News, “Hong Kong: Tear Gas and Clashes at Democracy Protest,” September 28, 2014, http://www.bbc.com/news/world-asia-china-29398962.
14. Amnesty International, “Amnesty: Pride March Ban Is a New Low,” June 30, 2015, http://humanrightsturkey.org/2015/06/30/amnesty-pride-march-ban-is-a-new-low/.
15. After surrounding all exits, police fired tear gas into the stadium, causing fear and confusion among the tens of thousands of peaceful pro-democracy supporters within. The combined forces then entered the stadium, shooting directly at the packed and terrified crowds. According to an International Commission of Inquiry, “[D]ozens of people attempting to escape through the stadium gates either suffocated or were trampled to death in stampedes, which were compounded by the use of tear gas.” Human Rights Watch estimated that 150 to 200 were killed and dozens of women and girls were raped in this attack. UN Security Council, “Letter Dated 18 December 2009 Addressed to the President of the Security Council by the Secretary-General,” S/2009/693, December 18, 2009, annex (containing “Report of the International Commission of Inquiry Mandated to Establish the Facts and Circumstances of the Events of 28 September 2009 in Guinea” at paragraph 198); Human Rights Watch, “Guinea: September 28 Massacre Was Premeditated,” October 27, 2009, https://www.hrw.org/news/2009/10/27/guinea-september-28-massacre-was-premeditated.
16. Michael Crowley, “Drawing the Line: Regulation of ‘Wide Area’ Riot Control Agent Delivery Mechanisms Under the Chemical Weapons Convention,” Bradford Non-Lethal Weapons Research Project and Omega Research Foundation, April 2013, http://www.omegaresearchfoundation.org/assets/downloads/publications/BNLWRP%20ORF%20RCA%20Munitions%20Report%20April%202013.pdf; Michael Crowley, “Tear Gassing by Remote Control: The Development and Promotion of Remotely Operated Means of Delivering or Dispersing Riot Control Agents,” Oxford Research Group, December 2015, http://www.oxfordresearchgroup.org.uk/sites/default/files/Tear%20Gassing%20By%20Remote%20Control%20Report.pdf.
17. NonLethal Technologies Inc., “The IronFist: The Cost Effective Solution for Rapid Deployment of Non-Lethal Munitions,” n.d., http://www.nonlethaltechnologies.com/Video/IRONFIST.pdf.
18. Crowley, “Tear Gassing by Remote Control,” pp. 10-11 (citing an undated catalog distributed at the Asia Pacific China Police Expo 2012 by the China Ordnance Equipment Research Institute in Beijing on May 22-25, 2012). Information is from an unofficial translation of the Chinese original on file with the Omega Research Foundation.
19. Crowley, “Drawing the Line,” pp. 25-38.
20. Desert Wolf, “Skunk Riot Control Copter,” n.d., http://www.desert-wolf.com/dw/products/unmanned-aerial-systems/skunk-riot-control-copter.html.
21. Guy Martin, “Desert Wolf Adding Grenades to Skunk Riot Control UAV,” Defenceweb, October 7, 2015, http://www.defenceweb.co.za/index.php?option=com_content&view=article&id=40961:desert-wolf-adding-grenades-to-skunk-riot-control-uav&catid=35:Aerospace&Itemid=107.
22. Leo Kelion, “African Firm Is Selling Pepper-Spray Bullet Firing Drones,” BBC News, June 18, 2014, http://www.bbc.co.uk/news/technology-27902634.
23. OPCW Conference of the States Parties, “Report of the Scientific Advisory Board on Developments in Science and Technology for the Third Special Session of the Conference of the States Parties to Review the Operation of the Chemical Weapons Convention,” RC-3/DG.1, October 29, 2012.
24. Crowley, Chemical Control, pp. 102, 232-234.
25. Ibid., pp. 15-16.
26. BMA Board of Science, “The Use of Drugs as Weapons: The Concerns and Responsibilities of Healthcare Professionals,” British Medical Association, May 2007, http://bmaopac.hosted.exlibrisgroup.com/exlibris/aleph/a21_1/apache_media/4X3AARHLYDEYT6TMU9X91F5AUJYBI1.pdf.
27. The Royal Society, “Brain Waves Module 3: Neuroscience, Conflict and Security,” February 2012, https://royalsociety.org/~/media/Royal_Society_Content/policy/projects/brain-waves/2012-02-06-BW3.pdf.
28. Michael Crowley and Malcolm Dando, “Down the Slippery Slope? A Study of Contemporary Dual-Use Chemical and Life Science Research Potentially Applicable to Incapacitating Chemical Agent Weapons,” Bradford Non-Lethal Weapons Research Project and Biochemical Security 2030 Project, October 2014, https://biochemsec2030dotorg.files.wordpress.com/2013/08/down-the-slippery-slope-final-web.pdf.
29. Robert P. Mikulak, Statement to the OPCW Executive Council, July 7, 2015, https://www.opcw.org/fileadmin/OPCW/EC/79/en/USA.pdf.
30. OPCW Conference of the States Parties, “Aerosolisation of Central Nervous System-Acting Chemicals for Law Enforcement Purposes,” C-20/NAT.2/Rev.1, December 3, 2015 (joint paper by Australia, Austria, Belgium, Brazil, Bulgaria, Canada, Chile, Cyprus, Germany, Finland, Ireland, Japan, New Zealand, Norway, Poland, Portugal, Korea, Spain, Switzerland, Turkey, the United Kingdom, and the United States).
31. OPCW Executive Council, “Statement by the Delegation of the Russian Federation at the Seventy-Ninth Session of the Executive Council,” EC-79/NAT.15, July 8, 2015.
32. CWC, art. VIII.22.