Legally incapacitated, politically outmaneuvered

When survivors of the 2002 theater siege in Moscow — in which Russian police used a gas widely believed to be a fentanyl derivative to flush out terrorists — brought claims before the European Court of Human Rights, the ruling came down with mixed results. On one hand, the court prescribed greater prerequisites for law enforcement’s use of incapacitating chemical agents; on the other hand, the ruling can be interpreted as legitimizing their use and making police employment of incapacitants acceptable. Meanwhile, with myopic rules governing the use of incapacitating agents, thanks to the foot-dragging of states party to the Chemical Weapons Convention, these toxic chemicals are perilously close to becoming just another tool in law enforcement’s arsenal.

States party to the Chemical Weapons Convention (CWC) have procrastinated in clarifying the law enforcement provision outlined in the convention for a decade. And now they may be outmaneuvered by NATO’s Standardization Agency, which has just published its own definition of incapacitating chemical agents — giving law enforcement broad scope to employ them. The CWC, however, includes a general prohibition of the development, production, storage, and use of toxic chemicals as weapons. Unfortunately, there exist a few exemptions — some say “loopholes” — to this general rule, one of which relates to the use of toxic chemicals for law enforcement, including riot control. While not as widely discussed as other chemical weapons disarmament and nonproliferation topics, the past few years have seen growing concerns over an increasing interest in incapacitating chemicals and the CWC’s law enforcement exemption, which is interpreted by some to give law enforcement access to chemicals banned for military use. Academic journals have featured articles on the matter and the International Committee of the Red Cross held international expert workshops in 2010 and the Spiez Laboratory (the Swiss national institute for nuclear, biological, and chemical protection) did the same in 2011. And this April, the Red Cross held another expert meeting, examining bodies of law outside the CWC that apply to incapacitating chemicals.

So what exactly does the CWC say about the use of chemical agents for law enforcement? According to the convention, “law enforcement including domestic riot control” is one of four “Purposes Not Prohibited Under this Convention.” Regrettably, the CWC does not contain a definition of “law enforcement,” nor does it specify the activities in which incapacitants could be used. This uncertainty has led to competing legal interpretations of the CWC put forward by diplomats and legal scholars.

At one end of the spectrum are the strict interpretations, like that of former Chairman of the Ad Hoc Committee on Chemical Weapons Ambassador Adolf von Wagner, who argues that “law enforcement” under the CWC is limited to riot control and capital punishment. By this reading, “law” means the limits of what is to be enforced, whereas “riot control” refers to the tools that can be used within the legal limits of law enforcement. And referring to capital punishment, von Wagner argues that the special case of judicially sanctioned chemical executions in the United States must not be exploited for broader interpretations of “law enforcement” that go beyond riot control agents — which the CWC does define.

Such a narrow interpretation of the law enforcement exemption is rejected by Indiana University Law Professor David Fidler, who argues that critics of a broad interpretation can’t have it both ways: that is, conceding that toxic chemicals can be used for capital punishment but must be restricted to riot control in all other instances. Fidler advocates an expansive interpretation, one that allows for toxic chemicals beyond riot control agents to be used under the law enforcement exemption. Additionally, Fidler claims that, even though a listed toxic chemical cannot be a riot control agent, given the variances in the CWC’s Verification Annex, some toxic chemicals are in fact permissible for law enforcement purposes. The problem with this interpretation is that it allows for the development, acquisition, and use for law enforcement of some of the very same listed chemical warfare agents that are prohibited for military use. It is difficult to see how this would be compatible with the overall objective of the CWC “to exclude completely the possibility of the use of chemical weapons.”

Because of this ambiguity, the recent International Committee of the Red Cross expert meeting turned to other bodies of law relevant to the use of incapacitants, such as international human rights law. The 1948 Universal Declaration of Human Rights protects the right to life in Article 3 and prohibits torture or cruel, inhuman, or degrading treatment in Article 5. Moreover, a recent UK Royal Society report highlighted so-called “biochemical incapacitants” as de facto lethal. As Red Cross meeting participants confirmed, the use of biochemical incapacitants under field conditions always carries the risk of fatalities. In addition, many of the long-term health effects of such toxic chemicals are unknown and might therefore constitute degrading treatment under human rights law. In short, law enforcement’s employment of toxic chemicals is simply not non-lethal. This was never clearer than during the Moscow theater crisis when the use of an incapacitating chemical agent put a stop to the situation — only to end up killing 125 hostages.

Another body of law that limits what states can or cannot do with certain toxic chemicals is covered in three international drug-control treaties: the 1961 Single Convention on Narcotic Drugs, as amended by the 1972 Protocol; the 1971 Convention on Psychotropic Substances; and the 1988 UN Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances, which also includes precursor chemicals. These treaties authorize only scientific and medical uses of controlled substances. Implementation is overseen by the International Narcotics Control Board in Vienna and is supported by an international secretariat. Special stocks for police and military uses are permitted under the treaties; but the control board’s 2003 report (paragraph 216) specifically clarifies that the limitation of internationally controlled substances to scientific and medical use extends to police and military forces as well. Among the controlled substances are fentanyl and its derivatives, one of which is likely to have been used in Moscow in 2002.

Broadening debate about the conflicting bodies of law and disparate views that govern law enforcement’s use of incapacitating chemical agents may be necessary. But it is worth keeping in mind that the Chemical Weapons Convention is the primary instrument of international law “to exclude completely the possibility of the use of chemical weapons.” If the law enforcement exemption is interpreted by CWC states parties in a narrow sense — i.e., only permitting the use of riot control agents — then much of the debate about other bodies of law becomes superfluous. In order to achieve real consensus, the Organisation for the Prohibition of Chemical Weapons’ Scientific Advisory Board should address the issue scientifically and technologically. Given recent assessments as to the unfeasibility of non-lethal incapacitating chemicals, and barring a major technological breakthrough, it would be surprising if the board came to the conclusion that non-lethal incapacitants are viable. On the basis of this scientific and technological clarification, the Third CWC Review Conference would then be in a position to initiate a process aimed at achieving a common understanding of the meaning of the exemption and the development, production, and use of incapacitating chemicals for law enforcement. It has been nine years since a few CWC states parties and the International Committee of the Red Cross unsuccessfully sought to address this issue at the First CWC Review Conference in 2003. With all the academic and policy work that has been devoted to the topic since then, the time is now ripe for incapacitating chemicals to move onto the Organisation for the Prohibition of Chemical Weapons’ official agenda.

Clarifying the law enforcement exemption in the CWC is currently especially urgent, as the definition of incapacitating chemical agents in a recent NATO Standardization Agreement flatly states: “Incapacitating agents are not, by their legal definition, considered to be chemical agents when used for law enforcement purposes, such as riot control.” This anything-goes approach, if adopted by NATO member states, would preempt a meaningful discussion among CWC states parties. As a result, CWC’s decade-long procrastination over the meaning of the law enforcement exemption would lead to CWC states being politically outmaneuvered by a military alliance — all of whose members are also CWC states parties. This would hardly qualify as effective, science-based multilateralism.