On December 20, 2011, the European Court of Human Rights in Strasbourg, France, ruled that the “use of gas against terrorists during the Moscow theatre siege was justified.” It did not, that is, violate the right to life — enshrined in Article 2 of the European Convention on Human Rights — of the 700-plus hostages in a Moscow theater almost a decade ago.
In the early morning hours of October 26, 2002, Russian authorities pumped a “gas,” the exact composition of which is still unknown, into the Dubrovka Theater Center in Moscow in order to end a hostage crisis in which around 40 Chechen terrorists held more than 900 people hostage for over two days. As a result, in addition to most of the terrorists, 125 hostages died either during or shortly after the storming of the theater. Chaotic scenes outside the venue showed unconscious hostages being piled upon each other exposed to the rain and snow. Meanwhile, the Russian authorities refused to reveal the chemical agent used in the operation, which led to severe criticism at the time. A domestic investigation in 2003 concluded that the hostages died of “natural” causes and that the gas had at best an indirect effect.
Having exhausted all domestic juridical options, some 60 hostages who survived or relatives of the ones who died in the operation brought the case before the European Court of Human Rights. The court, in March 2010, declared as admissible the “complaints under Articles 2 and 3 about the use of force by the authorities, and the planning and conduct of the rescue operation of 26 October 2002.” But the judgement of December 20, 2011, concluded that the hostages’ right to life was not violated by the Russian authorities’ decision to “resolve the hostage crisis by force and use of gas,” but that a violation of Article 2 of the European Convention on Human Rights had occurred: a) the “inadequate planning and implementation of the rescue operation” and b) the “ineffectiveness of the investigation into the allegations of the authorities’ negligence in planning and carrying out the rescue operation as well as the lack of medical assistance to hostages.” This verdict and the reasoning behind it raise a number of problematic issues:
Not surprisingly, the court had difficulties reconciling this tension between assumed intention and de facto effects of the toxic chemical on a substantial number of the hostages. As Lynn Klotz, Martin Furmanski, and Mark Wheelis have shown in their paper, “Beware the Siren’s Song: Why ‘Non-Lethal’ Incapacitating Chemical Agents are Lethal,” this is to be expected given the inherent difficulties with the current state of science to produce an incapacitating chemical agent that is truly non-lethal. This is compounded by the practical difficulties of dosage control under field conditions: 1) People respond differently to the same dosage of an analgesic or anaesthetic drug (what incapacitates one person can kill the next); and 2) It is practically impossible to control dosage in an environment like the theater (exposure to more or less gas could depend on how close a hostage was to a vent). This is precisely why, in Article II of its Convention, the CWC makes no distinction between lethal and non-lethal chemical weapons, but rather focuses on the toxic properties of a chemical, “which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans.” Furthermore, also under the CWC’s Article II, all toxic chemicals are treated as chemical weapons, “except where intended for purposes not prohibited.” The use of riot-control agents, when not employed as a means of warfare, constitutes such an exemption, as does the use of toxic chemicals for law enforcement according to Article II 9.d of the CWC. Yet, what exactly constitutes “law enforcement” is left undefined in the Chemical Weapons Convention, as are the “types and quantities” that are deemed consistent with such use. These legal indeterminacies have caused extended debates among proponents and opponents of incapacitating chemical agents over the past decade.
Thus, the point here is not to argue that consideration of the stipulations of the Chemical Weapons Convention by the court would have produced much guidance or resulted in a more human rights-friendly judgment. Rather, in addition to green-lighting the state practice of Russian authorities using toxic chemicals, the judgment can be regarded by proponents of incapacitating chemical agents to lift what legal scholar David P. Fiddler has called the “fog of fentanyl” in their favor. In the absence of CWC clarity, the court’s judgment now risks making the mountain that opponents of incapacitating chemical agents for law enforcement have to climb steeper than previously assumed. Hence, a potential and somewhat worrying take-away message of the European Court of Human Rights’ judgment is that the use of toxic chemicals for law enforcement is fine, as long as precautions are taken to limit the damage to innocent bystanders and as long as the situation is comparably severe to the one in Moscow. In this sense, the ruling is quite unhelpful for strengthening the right to life against toxic chemicals and unhelpful for those who seek to avoid having the Chemical Weapons Convention undermined — especially in the run-up to the 2013 CWC Review Conference.
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