Novichok and the Chemical Weapons Convention

[Cross-posted from The Trench]

Assassinations with nerve agents are rare. Very rare. The reason is simple: other means to eliminate a person are simpler and much more effective. The marginal benefit from using even some of the most toxic substances ever made by man is negligible. What is more, the attempt fails often, as Aum Shinrikyo experienced when trying to take out some of the cult’s enemies with VX before the 1995 sarin attack in the Tokyo underground. Last year’s murder of Kim Jong-nam, half-brother of North-Korean leader Kim Jong-un, also involved VX according to Malaysian authorities. However, the real perpetrator behind the two women who rubbed the substance in his face was quickly identified.

The surprise that the assassination attempt on former Russian spy Sergei Skripal and his daughter Yulia in Salisbury, UK on 4 March involved one of the Novichoks was not little. First, this family of nerve agents is relatively unknown. Outside specialised disarmament and HazMat communities few people would have been aware of its existence. Over 100 chemical structures are believed to belong to it, all related yet different. The group of chemical structures does not figure in the Annex on Chemicals of the Chemical Weapons Convention (CWC).  Second, the substance was produced in any sizeable quantities in only one single country, the Soviet Union. Third, the required precursor chemicals and the pathways to synthesise the final agents are completely obscure to most of the public.

The UK government has formally accused Russia of the assassination attempt and expelled 23 Russian diplomatic personnel. Moscow vehemently denies the accusal and has retaliated by demanding that a similar number of diplomats leave the country. It furthermore denies ever having developed and produced Novichoks. The incident follows an already bitter stand-off between the West and Russia over Syria’s proven chemical weapon (CW) use that blocks effective UN Security Council action and splits the Executive Council (EC) of the Organisation for the Prohibition of Chemical Weapons (OPCW). As the government of Prime Minister Theresa May has formally declared its intention to have the OPCW independently verify its analyses and share it with its international partners, the question is whether and how the international organisation can contribute to resolving the matter.

Ensuring compliance under the CWC

Beyond the CWC’s routine verification process involving declarations, assessments and inspections, Article IX ‘Consultations, Cooperation and Fact-Finding’ foresees procedures to resolve uncertainties about compliance or breaches of the convention. These procedures are consultations, clarification, challenge inspection and investigation of alleged use.

Consultation concerning anomalies

The CWC does not detail what consultations should entail, but views and encourages them together with information exchanges as one of the early (or low-key) diplomatic exchanges among states parties to resolve doubts or ambiguities about compliance.

According to a statement issued by the UK’s Foreign and Commonwealth Office, on 12 March Foreign Secretary Boris Johnson summoned the Russian Ambassador to seek an explanation from the Russian Government. The statement strongly suggests that the step was undertaken under the consultative process foreseen under Article IX. It added that Russia provided no meaningful response.

Summary of the consultation procedure (Slide by JP Zanders)

Clarification of compliance concerns

If in doubt or concerned about compliance, a state party may seek clarification. A state party will address the initial request for clarification to another state party, who must reply within 10 days. Although not stipulated in the convention, a degree of expectation exists that the latter would supply supplementary information (i.e. beyond what is available from, for instance, annual declarations or routine inspections) to address the concern.

In case the reply does not resolve the concern, the requesting state party may call for assistance from the EC, which must use its authority to lend weight to the request, including through forwarding the request within 24 hours. The state party to whom the clarification request is addressed has once again a maximum of 10 days to respond. If the replies still do not satisfy, the requesting state party my next request the EC to obtain further information, in which case it may (not ‘must’) decide to set up a group of experts to examine all available information and reports and submit a factual report. Although the group of experts can draw on previous inspection reports, it is in no position to launch its own inspection procedure.

After either of the two previous steps, the requesting state party may call for a special session of the EC, which then has the decision authority to ‘recommend any measure it deems appropriate to resolve the situation’. Although not stated explicitly in Article IX, those measures would presumably include obtention of further information or persuasion of the targeted state party to resolve the presumed violation in accordance with the CWC. If the requesting state party remains unsatisfied with the response, it may call for a special session of the Conference of States Parties (CSP) 60 days after the submission of the request for clarification to the EC. The CSP is to consider and may take any measure, which, as in the case of the EC, remains unspecified in the convention.

It is important to note that the launch of a clarification procedure does not require the outcome of routine inspections, but inspection reports may trigger additional requests for information. It should also be noted that the procedures described above do not affect the requesting state party’s right to call for a challenge inspection, nor are they affected by the conduct of a challenge inspection.

Summary of the clarification process (Slide by JP Zanders)

Challenge of non-compliance

Challenge inspections are the third tool outlined in CWC Article IX. It consists of a short-notice inspection at any site (irrespective of whether it has been declared or not) in a state party. Once the OPCW has authorised the challenge inspection the targeted state party has no right of refusal, but it can invoke the technique of managed access through which OPCW inspectors may be denied access to certain parts of the site. Managed access cannot be implemented in such a way that inspector access to the site as such is denied. However, irrespective of the outcome of the managed access negotiations between representatives of the challenged stated party and the OPCW inspectors, the latter retain full right to interview any staff member of the site (and thus possibly obtain relevant information about the areas to which they have been denied access).

Although a challenge inspection can be requested at any stage of consultation of clarification processes, the CWC encourages states parties to view the tool as an instrument of last resort.

Summary of the challenge inspection process (Slide by JP Zanders)

Investigation of alleged use

Part XI of the Verification Annex details the process of investigating the alleged use of CW or the alleged use of riot control agents as a method of warfare. In case the alleged use involves a state not party to the CWC, then the Director-General of the OPCW will closely cooperate with the UN Secretary General.

The procedure is applied (and has been further developed) with respect to the many allegations of chemical warfare in Syria. It is less relevant to the Novichok case.

Pathways to resolving the Novichok matter

How the investigation of the Skripal assassination attempt plays out will largely depend on the next key decisions by the UK government. The OPCW experts travel to the UK under Article VIII, 38(e), which qualifies their activity as a ‘Technical Assistance Visit’ to help with the evaluation of an unscheduled chemical (the Novichock agent) is not listed in any of the three schedules in the Annex on Chemicals).  They will likely visit the sites of investigation and collect their own samples (if for no other reason than to validate any laboratory samples they may receive), take all materials and documents related to the forensic investigation back to the Netherlands where the sample will be divided up and sent to two or more designated OPCW laboratories. (The list for 2017 can be consulted here.)

After having received the report, the UK government may opt to pursue the case using its own diplomatic means, possibly together with its allies, or it may decide to invoke one of the procedures outlined above, the most likely one being the clarification process. Given the current level of political rhetoric and the earlier summons of the Russian Ambassador, consultations will have little utility left. To call for a challenge inspection the UK will need to have extraordinarily precise information about the production or storage location (which might be difficult if, for example, forensic analysis points to recent, small-scale synthesis of Novichok or to a chemical structure different from those associated with the Soviet programme).

At present the outcome of any one of the procedures is difficult to foresee. Neither the clarification process nor challenge inspection option have been invoked previously. Moreover, even though the CWC may at first sight seem to suggest a hierarchy among the different procedures in terms of increasing stringency or steps in an escalatory process, each one can be pursued independently. They may also be invoked in succession, or they can run in parallel. One procedure is not necessarily a prerequisite to another one.

Central to the understanding of the procedures is that the OPCW, as an independent international organisation dedicated to overseeing the implementation of the CWC, provides a forum for consultation and cooperation among states parties, also in matters concerning compliance or conflict resolution.


Humanization of Arms Control: Paving the Way for a World free of Nuclear Weapons (Routledge, 2017) – A short book presentation

The following is a guest post by my friend Daniel Rietiker, who is a Lecturer at the University of Lausanne.  It provides an review of his newly published book.

I think the issue of international human rights law and its application to the possession and potential use of nuclear weapons is worth discussing, so I welcome Daniel’s new book. I personally have some reservations about the scope of the application of human rights law to these subjects. And I’ll maybe post a comment or two in that vein, and encourage others to comment as well. But first, I welcome Daniel’s guest post. DJ


Humanization of Arms Control: Paving the Way for a World free of Nuclear Weapons (Routledge, 2017) – A short book presentation

BY: Daniel Rietiker

  1. Introductory remarks

The new book takes a new approach to arms control, by placing the victim of the relevant weapons at the centre of attention. It consists of two main parts. The first one is devoted to conventions dealing with weapons others than nuclear weapons (CWC, Ottawa Convention on anti-personnel mines and Oslo Convention on cluster munitions, and ATT). It is divided into three parts, namely the preparatory history of the relevant treaties, in particular the role played by civil society, the contribution of the relevant treaties to the protection of the human being and the implementation and verification of the treaties by human rights actors and institutions. The first part concludes that, within those treaties, the human-based approach is well established.

The question remains whether the same can be said for the field of nuclear weapons – question dealt with in the second part of the book. This part follows a similar structure to the first one. One of the main purposes of this part is to demonstrate the illegality of nuclear weapons under humanitarian and human rights law.

In this short presentation, I will concentrate on only one aspect of the book, namely the relevance of human rights to nuclear weapons, in particular to their actual use. I devoted quite a substantive part of my book to this aspect since I always had the impression that human rights law, contrary to humanitarian law, had been neglected in the doctrine of international law in respect of nuclear weapons, in spite of its advantages, which I will mention further below.

Moreover, the book distinguishes between the rights of direct victims of use of nuclear weapons attack, on the one hand, and those who are not directly exposed to such an attack, but suffer from the consequences of ionizing radiation, often years and decades later. Those consequences concern basically all nuclear activities, including the production of nuclear energy (and waste management), uranium mining and the scenario of nuclear accidents, as well as testing of nuclear weapons. In my book, I illustrate the example of a regional nuclear war, for instance between India and Pakistan, and I analyze its global human rights impact in terms of health, environment, climate and development.

In the present summary, however, I will for practical reasons limit my considerations to the direct victims of an attached launched by nuclear weapons.

The relevance of human rights to nuclear weapons has very recently been acknowledged officially, namely through the adoption of the new Treaty on the prohibition of nuclear weapons, in New York on 7th July 2017. Indeed, on several paragraphs, this treaty refers explicitly to human rights; first of all, in its preamble, where it states that:

“The States Parties to this Treaty (…) Reaffirming the need for all States at all times to comply with applicable  international law, including international humanitarian law and international human rights law” (§ 8 of the preamble).

Moreover, its Article 6 deals with “victim assistance and environmental remediation” and, apart from explicit references to human rights law, there are many other uses of language, such as “victims” of nuclear weapons, including “hibakusha”, that are closely linked to human rights violations.

In brief, the new treaty prohibiting nuclear weapons confirms the close link between human rights law and nuclear weapons and related activities, in particular testing of nuclear weapons.

  1. The added value of human rights law in the nuclear age

What is the relevance of human rights law and what makes it worth being analyzed in the nuclear field? I only mention three of many more aspects that I have discussed in my book.

First of all, human rights law is applicable in all circumstances, contrary, inter alia, to international humanitarian law that only applies in times of armed conflict. It is true that all major human rights instruments contain clauses allowing to derogate from certain rights in times of emergency. Those derogations clauses have only rarely been used (recently by Turkey and France applying Article 15 of the ECHR), contain significant substantive and formal conditions that have to be met and, moreover, do not apply to particularly important rights, in particular the right not to be subject to torture, inhuman or degrading treatment.

Second, the particular nature of certain human rights has to be stressed. Certain fundamental rules of human rights law have to date attained customary law status and, therefore, apply also to States that have not ratified the relevant treaties. Moreover, the normative supremacy of certain norms of international law has to be stressed too. They belong to the peremptory norms of international law or norms of jus cogens in the sense of Articles 53 and 64 of the VCLT. For instance, if we take the example of the prohibition of genocide, one of the undisputed norms of jus cogens, it means that a genocide could not justify a counter-genocide. Also the prohibition of torture, inhuman and degrading treatment falls under this definition, which is of relevance for nuclear weapons, as will be shown below.

Third, there is also recognition, in international human rights law, of certain groups of victims that are particularly vulnerable, for instance indigenous peoples, children and women. Certain instruments, treaties as well as non binding declarations, have been adopted specifically for their protection, such as the or the UN Declaration on the rights of indigenous peoples (2007),  the UN Convention on the rights of the child, or the UN Convention on the Elimination of Discrimination against Women (CEDAW). Interestingly, the TPNW also refers to such groups, namely in paragraphs 4 and 7 of the preambular.

  1. Most relevant human rights for victims of direct attacks by nuclear weapons
  2. The right to life

The most obvious human right when talking about the use of nuclear weapons is the right to life. The ICJ, in its 1996 Advisory Opinion on the Legality of Use and Threat of Nuclear Weapons, confirmed the applicability of the right to life (Article 6 ICCPR) in time of armed conflict and, moreover, observed that the test of what is an “arbitrary deprivation of life” has to be determined in light of international law governing armed conflict, in particular humanitarian law (ICJ Reports 1996, § 25).

It is interesting that, contrary to the ICCPR (Article 4 and 6), within the ECHR, the right to life can be derogated from, in particular for “deaths resulting from lawful acts of war.” (Article 15 § 2). From my point of view, such a derogation would not be relevant in the case of use of nuclear weapons since its effects are so devastating, disproportionate and indiscriminate that the damage and harm caused to civil populations would be unacceptable and illegal under international humanitarian law. Therefore, the acts of war would not be “lawful”.

The ECtHR had to deal with cases introduced by relatives of civilians who died during combat operations against rebel groups. In order to ensure that the use of force was no more than “absolutely necessary”, the test under Article 2 ECHR, the Court examined whether the planning of the operation was such as to “avoid” or at least “minimise deaths”. In a case against Russia concerning air operations against rebels during the Second Chechen War, the ECtHR concluded that there had been a violation of the right to life, in particular for having exceeded what was necessary in the concrete situation:

“180. … the Court may be prepared to accept that the Russian authorities had no choice other than to carry out aerial strikes in order to be able to take over Urus-Martan, and that their actions were in pursuit of the aim set out in paragraph 2 (a) of Article 2 of the Convention, as alleged by the Government. It is, however, not convinced, having regard to the materials at its disposal, that the necessary degree of care was exercised in preparing the operation of 19 October 1999 in such a way as to avoid or minimise, to the greatest extent possible, the risk of a loss of life, both for the persons at whom the measures were directed and for civilians” (Khamzayev and Others v. Russia, no. 1503/02).

In this case, the Russian operation resulted in 6 deaths, 16 injuries, and 13 houses destroyed, caused by the use of high-explosive fragmentation bombs of caliber 250-270 kg. These weapons were considered “indiscriminate weapons” by the Court, which concluded that the use of such bombs in inhabited areas was “manifestly disproportionate” to the aim of dislodging the extremists (§ 189).

In light of this jurisprudence, the large number of deaths likely to be caused by a nuclear explosion would not meet the high standards of the ECHR and the ICCPR regarding the right to life. In light of the uncontrollable effects of a nuclear weapons use and the numerous victims, it seems impossible to administer the proof that sufficient precaution had been taken to “avoid or minimize” incidental loss of life.

Moreover, the presence of radiation after an attack would also hamper the ability to search for, rescue, and care for wounded, which could amount to further violations of the right to life. Indeed, recent studies have shown that one of the aspects that make nuclear weapons so special and fatal is the fact that no adequate rescue and medical response is possible due to the complete destruction of infrastructure, the death of medical personnel, and the long-lasting radioactivity rendering access to the are very difficult. In my book, I have mentioned several cases decided by the ECtHR that may illustrate the positive duties after a life-threatening incident in the aftermath of a nuclear explosion.

Finally, one ongoing aspect on the right to life is noteworthy: The UN Human Rights Committee (HRC), the body implementing the ICCPR, after having already issued two so-called General Comments (GC) on the right to life referring explicitly to the danger of nuclear weapons, has started its considerations of a new GC no. 36 on the right to life some year ago. For the time being, a second draft has been adopted for further consideration. Contrary to the first draft, this draft contains quite a useful paragraph on nuclear weapons (without references):

“13. The [threat] or use of weapons of mass destruction, in particular nuclear weapons, which are indiscriminate in effect and can destroy human life on a catastrophic scale, is incompatible with respect for the right to life and may amount to a crime under international law. States parties must take all necessary measures to stop the proliferation of weapons of mass destruction, including measures to prevent their acquisition by non-state actors, to refrain from developing, producing, testing, stockpiling and using them, and to destroy existing stockpiles, all in accordance with their international obligations. They must also respect their international obligations to pursue in good faith negotiations in order to achieve the aim of nuclear disarmament under strict and effective international control  [and to afford adequate reparation to victims whose right to life has been adversely affected by the testing or use of weapons of mass destruction]. ”

  1. Other “civil” rights affected by the use of nuclear weapons

In order to fall within the ambit of Article 3 ECHR, ill-treatment must attain a certain minimum level of severity (so-called “threshold-theory”). Once this level is reached, the ECtHR usually determines which of the three categories of treatments is involved (torture, inhuman or degrading treatment).

In my book, I argue that the use of nuclear weapons could amount at least to “degrading treatment”, since it deprives the victims of their basic dignity. The standard formula developed and applied by the Court for this level is treatment “such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them” (see for instance Kudla v. Poland [Grand Chamber], 26 Occtober 2000, § 92).

For the reasons indicated in my book, I also suggest that the use of nuclear weapons could amount to “inhuman” treatment, and maybe even to “torture”.

It is also noteworthy that, in the case of Selçuk  and Sker v. Turkey, the ECtHR held that there was “inhuman” treatment when, as a part of a security operation, the security forces destroyed the elderly applicants’ home and property in a contemptuous manner and in their presence, without regard to their safety or welfare, depriving them of their livelihood and shelter and causing them great distress (in particular § 77). It is obvious that the destruction of one’s home by a nuclear blast is very likely to have a similar effect and could amount, on its own, to a breach of Article 3 ECHR.

Essentially for the same reason, namely destruction of homes and property, a nuclear attack would affect the victims’ right to respect for private life and home (in Europe, Article 8 ECHR) as well as the right to property (Article 1 of Protocol 1 to the ECHR). These rights are less protected than the values under Article 2 or Article 3, since they can be restricted and derogated from under Article 15 ECHR.

I have to stress that the rights chosen for the sake of this summary is only a selection. In my book, I draw the conclusion that, in the end of the day, the use of a nuclear weapon would certainly constitute the total denial of all basic human rights.

  1. Economic, social and cultural rights, considered with special regard to vulnerable groups of people

The rights of victims of use of nuclear weapons have also to be assessed in light of economic, social and cultural rights, which are likely to be breached by such an attack. In the book, the relevance of the following rights, in the context of nuclear weapons, is assessed: the right to development and the right not to be discriminated against, the rights to the highest standard of health and to a healthy environment, as well as the right to an adequate standard of living, in particular the rights to food and to water.

Concrete examples are, in particular, the cases decided by the ECtHR in environmental matters, including the right to water, a more recent human right that, for the reasons indicated in my book, are very relevant in the nuclear field.

The particular vulnerability of certain groups of people deserves special attention in the context of economic, social and cultural rights. The victimization of women and children also raises the topic of rights of future generations, in light of the fact, for instance, that after Chernobyl, many children were born with congenital deformations and considering that the latency period for many types of cancers is 25-30 years. As mentioned in the introductory part, the particular vulnerability of women, children and indigenous peoples is explicitly recognized in the TPNW.

  1. Concluding remarks

In light what precedes, it can be summarized that human rights are applicable in armed conflict and impose significant limits to the use of nuclear weapons, together with international humanitarian law. Moreover, human rights law has important advantages compared to humanitarian law, for instance the fact that certain rights cannot derived from under any circumstances. It is also worth repeating that a human rights approach to nuclear weapons has to be done in the broad sense, including the relevant civil rights as well as economic, social and cultural rights.

I am glad that the TPNW was adopted so quickly last summer, since it constitutes a kind of “blessing” of the suggestions and ideas that I made in my book. It is obvious, for me, that human rights have penetrated into the nuclear weapons field at latest in July 2017. The opposite seems, by the way, also to be more and more the case, recalling the example of the HRC, a human rights body, adopting a new GC on the right to live where it explicitly refers to the danger and risk of nuclear weapons.


Palestine’s withdrawal of its instrument of accession to the CWC (Part 2)

[Cross-posted from The Trench]

In my blog posting of 16 January entitled ‘Palestine: From a “will-be” party to the CWC to a “would-have-been”?’, I described how Palestine submitted its instrument of accession to the Chemical Weapons Convention (CWC) with the UN Secretary-General on 29 December, only to withdraw it on 8 January. Since having achieved the status of ‘UN non-member observer state’ in 2012, Palestine has joined over 50 international agreements, including the Biological and Toxin Weapons Convention, to which it became formally a party on 16 January. The CWC is the only treaty on which it reversed its position.

Retracting an instrument of accession is a highly unusual and the motivation behind the step was unclear. Since the blog posting, still nobody is able to offer even a beginning of an explanation for the step.

A rare step nonetheless

Prof. Masahiko Asada of the Graduate School of Law at Kyoto University responded to the blog posting by pointing out that there are in fact precedents involving the withdrawal of an instrument of ratification before the entry into force of a treaty. He specifically pointed to the 1995 UN Fish Stocks Agreement. Italy and Luxembourg ratified it in 1999 and 2000 respectively. Both countries withdrew their instruments ratification and re-ratified it in 2003 along with other European Union (then still the European Communities) members with declarations.

He also referred me to a publication prepared by the Treaty Section of the UN Office of Legal Affairs, Summary of Practice of the Secretary-General As Depositary of Multilateral Treaties. Section H (p. 47) describes circumstances and gives more examples:

157. A State that had deposited an instrument of ratification or of a similar nature may subsequently decide to withdraw its instrument. The Vienna Conference on the Law of Treaties did not address this question. The practice of the Secretary-General has been to allow such a withdrawal until the entry into force of the treaty, on the understanding that, until that time, States are not definitely bound by the treaty.

158. In some cases, States that had thus withdrawn an instrument subsequently deposited a new instrument, but this time with reservations. In this manner, they were in compliance with the rule according to which reservations must be made at the time of deposit of the instrument (see para. 204). Thus, for example, the Government of Greece, which on 6 December 1950 had deposited an instrument of acceptance of the Convention on the Intergovernmental Maritime Organization of 6 March 1948, withdrew that instrument on 26 March 1952 (before the entry into force of the Convention, which took place on 17 March 1958), but reaccepted the Convention on 31 December 1958, with a reservation. And the Government of Spain, which on 29 July 1958 had deposited an instrument of accession to the Customs Convention on the Temporary Importation for Private Use of Aircraft and Pleasure Boats, and Protocol of Signature, signed at Geneva on 18 May 1956, withdrew the said instrument on 2 October 1958 (before the entry into force of the Convention, which took place on 1 January 1959) and then deposited a new instrument with a reservation.

So, while there have been a few withdrawals of instruments of ratification, countries seem to have taken this step (1) when the treaty had not yet entered into force for anybody; and (2) possibly with the intention to re-ratify at a later stage but with the addition of reservations.

Palestine’s action does not seem to fit this practice.

First, none of the treaties in the examples concern international security or weapon control.

Second, Article XXII of the CWC stipulates that ‘The Articles of this Convention shall not be subject to reservations’. In other words, Palestine cannot retract its instrument of accession with a view of re-submitting it with a reservation. It could, however, express some reservations with respect to the annexes to the CWC provided these are not incompatible with the object and purpose of the convention.

Third, the UN Office of Legal Affairs also noted that ‘the withdrawal of instruments is accepted until the entry into force of the corresponding treaty’ (para. 159). The CWC has now been in force for over 20 years.

The UN Office of Legal Affairs primarily assessed the implications of such withdrawal on when a treaty takes legal effect. It did not delve into the question of withdrawal of accession. Yet, it seems to have left the door open for scenarios involving accession or succession (implying that the treaty would already have entered into force) when it referred to ‘instrument of ratification or of a similar nature‘. However, the lack of concrete examples may suggest that UN Secretary-General Guterres’ acceptance of the Palestinian retraction may yet have set a precedent in international legal history.

Answers? Questions! Questions? Answers!

Literally nobody has an explanation for Palestine’s withdrawal of its instrument of accession or an idea what the Palestinian Authority’s next move might be.

Senior staff within the Technical Secretariat of the Organisation for the Prohibition of Chemical Weapons (OPCW) were as confounded as anyone else. This puts to rest my benign suggestion that the OPCW might have alerted the UN Secretary-General to possible complications of Palestine joining the CWC without any formal preparations. No such steps or similar types of communication were undertaken.

Representatives from CWC states parties expressed similar surprise. One rumour circulating in The Hague suggested that Egypt had persuaded the Palestinian Authority in Ramallah to withdraw from the treaty. However, as one ambassador from a Western country told me, ‘this is all what it is, a rumour’. Some persons pointed to the prospect of US financial retaliation (which I explained, but discounted in the original blog posting), but nobody heard an American official even suggest such a possibility.

A former Arab ambassador reached out to colleagues and friends in the Middle East. He replied that nobody was able to provide answers to my questions. Palestinians reached out to the Authority and Palestinian diplomats in disarmament capitals, but again the answer was that ‘no one either knows or wants to talk about it’.

No explanation as to why Palestine withdrew its instrument of accession to the CWC is forthcoming at present. The questions raised in my initial blog posting remain open. Particularly vexing is: why the CWC, and not also one of the 54 other treaties that Palestine has joined over the past three years?

I would like to thank Prof. Masahiko Asada for having pointed me to the broader context of withdrawal of instruments of ratification. My great appreciation also goes to research colleagues and present and former diplomats who brought me in contact with relevant personalities and/or have tried to receive answers from relevant policy makers and implementers.

Palestine: From a ‘will-be’ party to the CWC to a ‘would-have-been’?

[Cross-posted from The Trench]

Something really remarkable happened in the first two weeks of 2018. On 2 January, quite out of the blue came the notification by UN Secretary-General António Guterres that the State of Palestine had deposited its instrument of accession to the Chemical Weapons Convention (CWC). It was to become the 193rd state party on 28 January, thirty days after having submitted the document (29 December). Indeed, ‘was’. Guterres formally informed UN members on 11 January that Palestine had withdrawn its instrument of accession three days earlier.

States withdrawing from a disarmament or arms control treaty is extremely rare. But it does happen. North Korea, for example, left the Nuclear Non-Proliferation Treaty (NPT) in 2003. However, I do not recall having come across an instrument of accession being withdrawn after its formal deposit. (Internet searches did not yield any results either, although poor selection of search terms might be responsible for that.) The closest is the ‘unsigning’ of treaties (as the USA did with the Rome Statute of the International Criminal Court). In those cases the agreement had not yet entered into force for the country concerned.

Palestine’s initial action on the CWC did not come in isolation. Today, 16 January 2018, the Implementation Support Unit announced that Palestine had become the 180th state party to the Biological and Toxin Weapons Convention (BTWC).

Out of the blue

I have been expecting Palestine’s accession to the CWC since it attempted to attend 2014 CWC Conference of States Parties (CSP) as a non-State Party observer. I do not recollect similar efforts since then, certainly not at last November’s CSP. The attendance request caused some unease among certain participating states. However, it was denied because the Palestinian delegation had not registered before the formal deadline and the CSP had already formally approved the list of attending observers.

Palestine became eligible to join treaties on 29 November 2012 when the UN General Assembly granted it status of ‘non-member observer state’ (Resolution A/RES/67/19). According to the UN Under-Secretary-General for Legal Affairs, the upgrade from ‘observer entity’ is significant because ‘Palestine may participate in multilateral treaties to which the Secretary-General is the depositary and in international conferences convened under the auspices of the UN that are open to “all States” (the “all States” formula)’. In reality the impact is broader, as is evidenced by Palestine’s accession to the NPT in February 2015 (instrument deposited with Moscow) and the BTWC (deposit with Russia and the United Kingdom). The Holy See is the only other sovereign entity with similar status. It joined the NPT in February 1971, the BTWC in January 2002, and the CWC in June 1999.

Since the upgrade Palestine has gone trough three waves of treaty adhesion: April 2014 (15 documents), December 2014 (18 documents), and December 2017 (22 documents). The treaties in question are listed in annex below. They fall in four major areas, namely diplomatic relations; human, economic and social rights; environmental law; and humanitarian/arms control law.

Of the 22 Palestinian applications in December, the UN Secretary-General issued Depositary Notifications for 19 treaties on 2 and 3 January. The notifications included several weapon control treaties. Only the instrument of accession to the CWC was subsequently withdrawn.

Why the retraction?

Since achieving UN Observer State status in 2012 Palestine has pursued a deliberate policy of becoming a respected member of the international community by unreservedly adhering to international law. In his Master of Laws dissertation entitled Palestine’s Ratification of International Treaties – A Back Door to Independence? (Lund University, 2016), Victor Persson argued that ‘ratifying international treaties strengthens Palestine’s claim for statehood through recognition, which in turn increases pressure for independence on its occupier, Israel’.

However, the latest wave of applications may have been more impulsive than considered. On the day of the deposit of the instruments of accession the Israeli daily Haaretz claimed that US President Donald Trump’s announcement on 6 December to move the US embassy from Tel Aviv to Jerusalem prompted Palestinian President Mahmoud Abbas’ decision. The article further noted that Israel’s ambassador to the UN was holding meetings with his US counterpart to formulate a joint response to the Palestinian move. Meanwhile, the rhetoric between Washington and Ramallah has grown increasingly strident.

Focussing on the escalating conflict, three explanations for the retraction of the instrument of accession seemed possible.

Power politics

First, the USA (and through it, Israel) exerted great pressure on UN Secretary-General Guterres to force Palestine to reconsider its action. However, while nobody should be surprised about consultations with him, in his role as depositary he is just an executioner. As Article 77 of the Vienna Convention on the Law of Treaties states, one of the functions of a treaty depositary is ‘Receiving any signatures to the treaty and receiving and keeping custody of any instruments, notifications and communications relating to it’. The USA could also have leaned on some of its Arab partners in the region, but given his mood and escalating anger with Washington it appears unlikely that President Abbas would have been persuaded.

Financial coercion

Second, as noted earlier, the CWC is the only treaty for which Palestine rescinded its accession. Of all the treaties it applied to join, the CWC is the only one with a dedicated international organisation. (The International Atomic Energy Agency, which supports aspects of NPT implementation, is founded in a different document.) The USA is not loath to exercising the power of the purse to try and compel international organisations to more or less toe its line. For example, in October 2011 the board of UN Educational, Scientific and Cultural Organization (UNESCO) voted to admit Palestine as a state, which prompted Washington to cut in its annual contributions to the organisation. In April 2016 the UN Framework Convention on Climate Change (UNFCCC) accepted the Palestinian Authority as a state party, prompting a group of US Senators to demand that the UN agency be denied any further US funding.

The root of such actions lies in US Federal Law. As explained by the American Center for Law and Justice, US Public Law 101-246 (1990) provides:

No funds authorized to be appropriated by this Act or any other Act shall be available for the United Nations or any specialized agency thereof which accords the Palestine Liberation Organization the same standing as member states.

Moreover, Public Law 103-236, enacted in 1994, prohibits

voluntary or assessed contribution to any affiliated organization of the United Nations which grants full membership as a state to any organization or group that does not have the internationally recognized attributes of statehood.

According to this line of reasoning, pressure would have been exerted on Palestine to rescind its accession because of fears that the OPCW might otherwise lose over 25% of its budget.

This scenario also seems problematic. First, while the UN Secretary-General may be the CWC’s depositary, the OPCW is an independent treaty implementation organisation rather than a specialised UN agency. Second, contrary to UNESCO or UNFCCC, it is not the OPCW that invites in Palestine (or any other entity). A state automatically becomes an OPCW member as soon as the CWC enters into force for it. No single entity—another state party, the OPCW Technical Secretariat, or the UN Secretary-General—can halt or block that dynamic. Third, no US official has hinted in conversations since the Palestinian delegation attempted to officially participate in an OPCW meeting in 2014 that withholding contributions to the annual budget was an option. On the contrary, the USA has too great stakes in the successful global implementation of the CWC.

Avoidance to internationalise the Israeli–Palestinian conflict

Finally, a third possible explanation was suggested by several people from the Middle East whom I contacted: all parties involved tend to avoid internationalising the Israeli–Palestinian conflict.

Palestine’s joining the CWC could indeed have risked the opposite effect because of Israel’s widespread use of riot control agents and other irritants in the occupied territories. Any request to the OPCW to investigate such use would require clarification of the legal status of the occupied territories under international law. Only if Israel exerts full legal jurisdiction over those areas in which it uses riot control agents, it could be argued that such use is domestic and therefore part of legitimate law enforcement. Given Israel’s settlement policies, Palestine will continue to contest Israel’s jurisdiction over large swaths of land. OPCW investigators require authorisation by the state party concerned to access the site of an alleged incident. Israel, of course, is not a party to the CWC and questions would arise whether OPCW personnel can access all parts of the Palestinian territory without requiring transit approval by Israeli authorities (see also below). In addition, given the rawness of international feeling about the Israeli–Palestinian conflict, political and ideological divisions similar to the ones exposed by the debates on Syria’s CW use might split decision-making in the OPCW even further.

This hypothesis leaves open who might be the instigator of the pressure to have Palestine withdraw its instrument of accession and which diplomatic channels might have been used. It also ignores the various options—many of which could and would be devised within the treaty framework once issues are formally raised—available under the CWC to address any specific threats posed by CW to a state party. Indeed, similar legal and political questions have already been considered in connection with Palestine’s accession in January 2015 to the Rome Statute founding the International Criminal Court (ICC). Even while some key players are not party to the Statute, Beti Hohler concluded her analysis of Palestinian accession as follows:

By assessing admissibility of a case, the ICC would effectively be called to assess Israel’s justice system and its capability to genuinely deal with war crimes allegations. Whilst the actual determination would be made on the basis of a specific case and the individual concerned, it cannot be overlooked that Israel in general has a well functioning legal system headed by a respected supreme court.

What is then the likelihood of an intervention by the ICC following Palestine’s accession? Besides the aforementioned legal issues, policy and political realities should also be considered. The reality is that the ICC is heavily dependent on the support of its states parties, including for any type of enforcement as well as for actually ensuring the attendance of suspected perpetrators at The Hague.

In conclusion, the impact of Palestine’s accession to the ICC and what will be its political implications for the Middle East peace process remains to be seen. There are at the moment far more questions than there are clear-cut answers.

One thing however is certain: with Palestine’s accession to the Statute, the legal framework has changed and the parties to the conflict would be wise to accept and respect that.

A more benign explanation for the retraction of accession?

Did you know that the CWC contains 42 instances of situations that will legally affect states parties or require actions that they must complete within 30 days? One example is that the treaty enters into force for a new state party 30 days after the deposit of the instrument of ratification or accession (Article XXI, 2). Another one is that a new state party must submit a series of detailed declarations not later than 30 days after the CWC enters into force for it.

Given that President Abbas seems to have decided to take action on accession in retaliation for the announced move of the US embassy to Jerusalem, did the Palestinian government fully appreciate the level of preparations joining the CWC requires? The country may lie in an active conflict zone, but it is hardly a Syria that would justify consideration of exceptional measures.

Other countries with internal or cross-border conflicts have become member of the OPCW. However, the process takes time. It often involves regional organisations and other states parties facilitating or supporting interactions, providing concrete assistance with legal and practical preparations, teaching and training officials as well as reaching out to key stakeholder communities (including parliamentarians, industry, academia, or any other constituency whose activities could be affected by the treaty) to build political support and capacity. Expert staff from the OPCW Technical Secretariat may already be involved in the concrete preparations to meet the treaty requirements within the set deadlines well before a state becomes a party. In fact, the deposit of the instrument of accession may be timed in function of milestones achieved.

Palestine would face an additional major legal and practical problem: how and where would inspectors enter or exit its territory? First, the Palestinian territories are non-contiguous. Second, the Palestinian Authority does not control all of the Palestinian territory, which means that it would have to special arrangements with Hamas who controls the Gaza strip. However, while a border crossing with Jordan could conceivably be designated as the CWC-required Point of Entry/Point of Exit (Verification Annex, Part I ‘Definitions’, para. 24), the Gaza strip is completely surrounded by Egypt and Israel, two non-states parties. Reaching it over land from the West Bank, by air or via a sea port would likely involve Israel one way or another.

So, a benign explanation might hold that the OPCW alerted the UN Secretary-General or regional states parties to the host of practical problems the unexpected application would pose for Palestine.

Perhaps persuasion might not have been all that difficult. In the afore-cited dissertation, Victor Persson points to the possible role of another significant domestic factor in the process:

due to the current suspension of the parliament, Palestine must choose either to postpone the implementation process or implement the treaties by presidential decree. Postponing the implementation would raise doubts on Palestine’s commitment to follow its new international obligations. Implementing international law by presidential decree on the other hand is an undemocratic legislative procedure.

That dilemma does not even begin to address the complexity of CWC implementation.

In summary

At present it is not at all clear why Palestine retracted its accession to the CWC. The immediate explanations—different types of diplomatic pressure by different actors or prevention of internationalising the conflict with Israel—do not answer why the CWC is the only one out of more than 50 treaties that suffered this fate. The observation that the convention is the only international agreement to be served by its own international organisation offers few grounds to assume that the OPCW would be exposed to financial coercion.

An alternative explanation is that the Palestinian authorities have withdrawn the instrument of accession after having been informed of the complex ramifications of becoming a party to the CWC. The impulsiveness of the initial decision in the wake of the US announcement to move the embassy to Jerusalem seems to support this hypothesis. However, this line of thought still requires confirmation on the ground, whether in the Middle East, New York or The Hague.

Annex: Palestine’s waves of treaty adhesion

The first wave (April 2014)

  • Vienna Convention on Consular Services
  • Vienna Convention on Diplomatic Relations
  • The Vienna Convention on the Law of Treaties
  • Convention on the Elimination of All Forms of Discrimination against Women
  • Convention on the Rights of the Child and the Optional Protocol to the Convention on the Rights of the Child (on the involvement of children in armed conflict)
  • Convention on the Rights of Persons with Disabilities
  • International Convention on the Elimination of All Forms of Racial Discrimination
  • International Convention on the Suppression and Punishment of the Crime of Apartheid
  • International Covenant on Civil and Political Rights
  • International Covenant on Economic, Social and Cultural Rights
  • UN Convention against Corruption
  • Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
  • Convention on the Prevention and Punishment of the Crime of Genocide
  • Geneva Conventions of 12 August 1949 and Additional Protocols
  • Hague Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations Concerning the Laws and Customs of War on Land

The second wave (December 2014)

  • Convention on the Political Rights of Women
  • Convention on the Recognition and Enforcement of Foreign Arbitral Awards
  • Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal
  • Convention on Biological Diversity and the Cartagena Protocol on Biosafety to the Convention on Biological Diversity
  • Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II)
  • Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol III)
  • Convention on the Law of the Non-Navigational Uses of International Watercourses
  • Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents
  • United Nations Convention against Transnational Organized Crime
  • Convention on the Safety of United Nations and Associated Personnel and the Optional Protocol to the Convention on the Safety of United Nations and Associated Personnel
  • United Nations Convention on the Law of the Sea
  • Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity
  • Agreement on the Privileges and Immunities of the International Criminal Court
  • Rome Statute of the International Criminal Court
  • Declaration in accordance with the Rome Statute of the International Criminal Court
  • The Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons
  • The Treaty on the Non-Proliferation of Nuclear Weapons
  • Convention on Cluster Munitions

The third wave (December 2017)

  • International Convention for the Suppression of Acts of Nuclear Terrorism
  • Convention on the Physical Protection of Nuclear Material
  • Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides International Trade
  • Stockholm Convention on Persistent Organic Pollutants
  • The Convention for the Protection of the Mediterranean Sea Against Pollution
  • The Convention on the Prohibition of Military or Any Modification Techniques (Environmental Modification Convention or ENMOD)
  • Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
  • Chemical Weapons Convention
  • Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (Geneva Protocol)
  • Biological and Toxin Weapons Convention
  • Anti-Personnel Mine Ban Convention
  • Remnants of War additional protocol one (CCW APV 2006)
  • Arms Trade treaty
  • United Nations Convention on Contracts for the International Sale of Goods
  • Single Convention on Narcotic Drugs of 1961 as amended by the 1972 Protocol
  • Convention on Psychotropic Substances of 1971
  • United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988
  • United Nations Convention to Combat Desertification
  • The Convention on International Transport of Goods Under Cover of TIR Carnets
  • Protocol on the Sale of Children, Child Prostitution and Child Pornography
  • Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime
  • The Amendment to article 8 of the Rome Statute of the International Criminal Court

(As an aside, the Treaty on the Prohibition of Nuclear Weapons intriguingly does not figure in the latter list, even though Palestine signed it when it was opened for signature on 20 September 2017.)

Tear gas from the trenches into city streets

Book Review

Anna Feigenbaum, Tear Gas (Verso: London, 2017), 224p.

Anna Feigenbaum is an academic at the Centre for the Study of Journalism, Culture and Community, Bournemouth University. Her interest lies in data storytelling, an approach that benefits from increasing access to data to build a more complex narrative in support of social change. That narrative is furthermore interwoven with practitioners’ experience and empirical research. Her just published book Tear Gas: From the Battlefields of WW1 to the Streets of Today uses this approach to explain how a chemical warfare agent first used over a century ago has become a common weapon in the arsenals of police forces worldwide.

This is the first time that I have been (consciously) exposed to this research and writing technique. The book makes for good and engaging reading: once picked up, it is difficult to put it aside. It is not a neutral piece of academic research (if such a thing exists): it is a campaign book that details the deception behind the so-called ‘non-lethal’ concept and decries the misuse of a poisonous agent in the name of law and order.

A weapon of war and domestic riot control

Ever since the end of World War 1 policy makers and shapers have expressed their incomprehension about why their military could not use a toxic agent on the battlefield that the police can deploy against riotous crowds. Much rarer is the reverse question why politicians would ever consider equipping national police forces with a weapon of war for use against their electorate. In fact, it is so rare that I cannot recall ever having come across it.

What cannot be denied is that riot control agents have been banned as an instrument of war since the 1925 Geneva Protocol. It is true that before the entry into force of the Chemical Weapons Convention (CWC) now 20 years ago this interpretation of the Geneva Protocol was contested by some, the United States in particular. But then the USA only signed up to the agreement in 1975 after it had come in for severe criticism for its widespread use of anti-plant agents (to deny communist forces jungle cover) and CS lachrymatory agent. This irritant saw widespread application in tunnel combat as well as a tool to separate civilians from North-Vietnamese irregulars who had infiltrated into towns and villages. Even today many Americans will argue with conviction that they did not wage chemical warfare in Indochina because the toxic substances were not lethal like sarin and mustard agent. Their position is not opportunistic: US military and politicians, and hence diplomats, already advanced this viewpoint after World War 1, during the Geneva Protocol negotiations and in the following years and decades. However, the debate if not introduced, then most certainly reinforced the idea that certain types of chemical weaponry can be classified as non-lethal.

The Chemical Weapons Convention

The CWC ended that debate. As part of the General Obligations, Article I, 5 states that:

Each State Party undertakes not to use riot control agents as a method of warfare.

Article II, 7 defines a riot control agent as follows:

Any chemical not listed in a Schedule, which can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure. [Emphasis added]

However, Paragraph 9 of the same Article excludes ‘Law enforcement including domestic riot control purposes’ [emphasis added] from the definition of a chemical weapon, which means that national police forces may deploy lachrymatory agents (other types of irritant agents also fall under this exclusion).

In the first few years of its operation, states parties were unsure how restricting the term ‘domestic’ in the exclusion was. The late 1990s were a period of considerable optimism that through the deployment of international peacekeeping and, if necessary, peace-enforcement forces intra-state conflicts could be prevented from escalating beyond any type of diplomatic negotiation or spreading to neighbouring countries. As I described in the CBW chapter in the 1998 edition of the SIPRI Yearbook, a mere four months after the CWC’s entry into force questions about the meaning of ‘domestic’ and the authority to release riot control agents already arose:

On 28 August 1997 heavily armed troops of the North Atlantic Treaty Organization (NATO)-led Stabilization Force (SFOR) had to evacuate more than 40 officers of the International Police Task Force from the Bosnian Serb town of Brcko after clashes erupted between peacekeeping forces and civilians. In what was described as one of NATO’s worst confrontations in Bosnia and Herzegovina since the 1995 Dayton Agreement, US helicopters dropped tear-gas and soldiers fired warning shots to disperse the crowd. Another US unit used tear-gas in a second incident on 1 September after being attacked by about 250 people armed with sticks and stones near Bijeljina, a village close to Brcko.

The reservation with regard to riot control agents attached to the US ratification of the CWC on 24 April 1997 further complicated the matter. In the wake of the Viêt-Nam war President Gerald Ford had signed Executive Order 11850, which outlined US policy regarding the use of riot control agents. The US Senate ratified the CWC on the understanding that the convention does not restrict the use of riot control agents, including use against combatants, in the following cases:

(a) the conduct of peacetime military operations within an area of continuing armed conflict when the United States is not a party to the conflict (e.g., Bosnia, Rwanda and Somalia);

(b) consensual peacekeeping operations when the use of force is authorized by the receiving state, including operations pursuant to Chapter VI of the UN Charter; and

(c) peacekeeping operations in which force is authorized by the Security Council under Chapter VII of the UN Charter.

The US Senate accepted the definition of a riot-control agent in Article II of the CWC but stated explicitly that the ‘President shall take no measure, and prescribe no rule or regulation, which would alter or eliminate Executive Order 11850’. (US Senate, Congressional Record, 24 April 1997, p. S3657).

Fortunately, the United States has never exercised this reservation and through practice—no further incidents since the one in the Former Yugoslavia seem to have occurred—it has subscribed to the international consensus concerning riot control agents in armed conflict. In subsequent months and years states participating in UN-authorised missions have even declined to export lachrymatory agent to partner countries in peacekeeping operations in view of the CWC. In other words, the global consensus on the prohibition on the use of riot control agents in armed conflict is of rather recent origin.

Domestic legitimacy of tear gas.

Anna Feigenbaum does not discuss such international evolution of the interdiction or the role of tear gas in armed conflicts and peacekeeping operations. Her book focusses on the domestic dimensions of the weapon’s use. She crafts a historical narrative that easily segues from institutional and economic interests to major incidents of lachrymatory use in crowd control operations. The rise of institutional and economic interests in the manufacture of tear gas is tightly interwoven with the development of the non-lethal narrative as a powerful sales argument. The author deconstructs this sales pitch with science-based arguments: lethality is a function of circumstances. Concentration of the agent plays a big role: tear gas released in a closed room may easily kill its occupants if they cannot quickly make their escape. Infants and the infirm in particular are vulnerable to lachrymators. Even in open spaces the density of the particle cloud—tear gas is not really a gas—and the duration to which a person is exposed to it determine whether he or she will suffer nothing more than short irritation to the exposed parts, longer-lasting harm, permanent damage, or even death.

Feigenbaum’s descriptions of riot control agent use illustrate graphically why exposure to the poison is not so harmless. Below is an extract from her book (pp. 80–81) describing the police intervention during the Democratic National Convention, which took place in Chicago between 26 and 29 August 1968. The United States was witnessing severe civil unrest fuelled by the protests against the war in Viêt-Nam and racial and social inequality. During the preceding months Martin Luther King, Jr and presidential candidate Robert F. Kennedy had been assassinated. The protesters were met with severe violence, in a number of cases leading to fatalities.

On Monday night, protesters in Lincoln Park were prepared to resist eviction come curfew time. They assembled a makeshift barricade out of garbage cans and park benches. Hundreds of officers were on hand and equipped to stop the demonstration with force if necessary, periodically giving loudspeaker announcements for the remaining protesters to leave. An estimated thousand protesters remained. Some prepared for tear gas by smearing Vaseline on their faces and covering their mouths with wet clothes. Others held rocks and small projectiles to throw back at police lines. Trash fires burned along the barricade and occasionally a rock was hurled against a police-car window.

The protesters’ chants were angry, mocking the police, floating in the summer air along with the sound of trashcan drums and Allen Ginsberg’s group chanting ‘om’. A police car entered the park from the back and protesters pelted it with stones. With tensions rising, at 12:30 the police issued their final warning to evacuate the park. Then tear gas flew across the barricade:

Tear-gas canisters were plummeting everywhere behind the barricade, through the trees. A huge cloud of gas rolled over the barricade, and cops with gas masks came over the barricade in an assault wave, with shotguns and rifles and using the butts as clubs on anyone in sight.

Protesters, passersby, and even residents out on their porches were beaten. The chasing, swinging, and clubbing was indiscriminate. Journalists, denied any special treatment, were battered and taunted, at times even targeted. The tear gas kept coming:

Gas! Gas! Gas! Was the cry, as if poisonous snakes had been loosed in the area … Thousands streamed across the park toward Clark Street, and panic started, headlong running, the sudden threat of being trampled by your own people … The tear gas was catching up with us, a sharp menthol sort of burning on the cheeks and burning in the eyes, but though some people ran from it, most of us kept on just walking … Now the tear gas began really burning, making the eyes twist tightly closed, and if you rubbed it the burning got worse, as if your eyeballs were being rolled in fire.

Tear gas seeped into homes, cars, and restaurants. It covered whole city blocks, taking over the air. The following night, tear gas was once again used to clear demonstrators from the park at curfew. Historian Frank Kusch writes that a sanitation truck joined the police lines. “The bed of the truck held a tear gas dispenser and a large nozzle for dispensing the gas— all requisitioned from the army. Two police officers manned the nozzle.” Additional gas was fired into the remaining crowd as officers in gas masks forced protesters onto neighboring streets. Some fought back, throwing rocks and bottles.

What emerges from this passage is that tear gas was not deployed to break up a protest but as an indiscriminate means to incapacitate crowds—irrespective of whether the individuals were rioters, accidental bystanders or professionals doing their work—so that the ability to resist other physical means of violence became as good as non-existent. Its use was indiscriminate, affecting even those who happened to live in the vicinity of the incidents.

This violates the basic principles of non-discrimination and proportionality applicable in armed conflict as well as law enforcement. Feigenbaum thus calls tear gas and ‘environmental weapon, a method of policing not only people but the atmosphere itself’. She adds that ‘this upgraded, offensive approach to tear-gas deployment has since become standard in riot-control policing’. (p. 84)

Riot control agents and the CWC

Of course, this particular incident in August 1968 took place long before the entry into force of the CWC. However, any person with the slightest interest in world affairs would over the past few years have seen footage and pictures of riot control agents being used against, for instance, regime opponents in Bahrain (2012), protestors in Turkey (2013), pro-democracy protestors in Hong Kong (2014), migrants entering Europe, or during the evacuation of the so-called ‘jungle’ just outside the French town of Calais (2016). How does this square with the aforementioned CWC’s delimitation of a riot control agent as an unscheduled chemical that can produce rapid sensory irritation or disabling physical effects, which disappear within a short time following termination of exposure?

This is an area of contention, which in its first twenty years states parties to the convention have not yet really taken up. The CWC lays down certain limitations on what a state can legitimately use as a riot control agent. Letting myself be inspired by the second edition of The Chemical Weapons Convention: A Commentary (Edited by Walter Krutzsch, Eric Myjer and Ralf Trapp and published by Oxford University Press, 2014, pp. 96–97), such restrictions would include:

♦ An agent cannot be listed in any one of the three schedules annexed to the CWC;

♦ The right to use riot control agents exists only under circumstances that allow people to leave the place of exposure early enough before those effects become irreversible and or more severe than sensorily irritating or physically disabling. As Krutzsch, et al. argue:

This cannot happen if persons are exposed who are unable to leave the place of exposure in the period of time before the ‘chemical action on life processes’ of the chemicals becomes irreversible or more severe than sensorily irritating or physically disabling. The reasons for this may be physical infirmity, age, or the situation at the incident location (e.g., obstacles, RCA use in confined spaces or inside buildings). If the time span of exposure was so long that the sensory irritation and disabling effects no longer disappear spontaneously (or other toxic effects manifest themselves), the chemicals used changed legally from ‘RCA consistent with paragraph 9(d)’ to ‘chemical weapons prohibited under Article I’. [Emphasis added]

♦ The application of riot control agents to ‘punish’ people for their behaviour or in situations when they are unable to escape the harmful properties of the riot control agent would be unlawful.

♦ Under CWC Article II, 1(b) delivery systems (munitions and other devices) that are specifically designed to cause death or other harm through the toxic properties of toxic chemicals fall under the definition of a chemical weapon. Thus Krutzsch, et al. posit that since the toxic effects of any chemical are dose dependent, the delineation of these properties (rapid onset, symptoms limited to sensory irritation or physical disablement, reversibility of the toxic effect) has ramifications for the delivery systems that can be justified. In order to be acceptable as dissemination devices for law enforcement including domestic riot control purposes (and on the condition that the riot control agent itself meets the requirements of Article II, 7), these devices must be designed specifically in such a way that the amounts of riot control agents disseminated by them and the area covered are consistent with (proportional to) the requirements of law enforcement including domestic riot control. Consequently, certain types of large area dissemination systems (such as, e.g. multiple rocket launchers or aerial cluster bombs for riot control agent delivery) would qualify as chemical weapons rather than as means of law enforcement. This reflects the principle that the force used to restore domestic law and order has to be proportional to the degree of disturbance, which limits the permission to use force with riot control agents to the adequate degree in each case; and

♦ A toxic agent intended for purposes not prohibited under the CWC is exempted from the definition of a chemical weapon as long as the types and quantities are consistent with such purposes (Article II, 1(a)).

Finally, under Article III, 1(e) states parties must declare the riot control agent holdings. In particular it must notify the Technical Secretariat of the Organisation for the Prohibition of Chemical Weapons (OPCW) of the chemical name, structural formula and Chemical Abstracts Service (CAS) registry number, if assigned, of each chemical it holds for riot control purposes. In addition it must update this declaration not later than 30 days after any change becomes effective.

In other words, international law exists that restricts the unbridled use of riot control agents even in domestic situations. Given that states parties must transpose the CWC obligations into domestic law, these restrictions should apply in any one of them. Or, as Anna Feigenbaum might phrase it, policing of the atmosphere is in breach of international and domestic law. Unfortunately, the issue is not high on the political agenda of the states parties even though the OPCW’s Scientific Advisory Board drew up a list of riot control agents for inclusion in the OPCW Chemical Agent Database (OCAD) in 2001 and considered the issue from the angle of the declaration obligation under Article III in March 2017.

When a book says more than what is printed …

As already noted, the author did not aim to present a comprehensive tear gas biography. Having studied the history of chemical warfare for more than three decades now, one thing I appreciate very much is how she offers a wealth of additional background information and texture to the continuation of chemical warfare programmes after World War 1.

It is generally well-known that after the Armistice efforts to constrain chemical warfare were hampered by the attempts by some victorious parties to secure the production secrets of the German chemical industry, which before the outbreak of hostilities had a virtual global monopoly in (synthetic) organic chemistry, including the commercially rewarding dye stuffs. The specialised military units created during the war for the chemical warfare, smoke and flame operations aligned themselves with those interests out of self-preservation. While they failed in expanding their responsibilities by having chemical weapons occupy a more central role in military doctrine, they were sufficiently successful to survive in a hostile public environment and to benefit from any surge in defence budgets.

In her book, Feigenbaum details how those chemical warfare institutions—most notably the US Chemical Warfare Service—actively promoted the research and production of irritants in pursuit of those goals. The core tools in this strategy were the creation and nurturing of social networks, the organisation of technology transfers between the military and commercial industry and the development of communication strategies (e.g. the non-lethal argument) towards policy makers and the public. Veterans from those special units remained in contact with each other through fraternities and their employment in the chemical industry after demobilisation facilitated this military-industry exchange. One poignant sales pitch the military offered industrialists was the ‘humane’ breakup of industrial strikes. Tear gas offered an alternative to the police shooting strikers, so the argument went. The strategy was not a slam dunk, witness several congressional hearings. However, over the years evolving business models for risk and security increasingly influenced the public safety discourse.

This knowledge about the deliberate pursuit of joint military-industrial interests and the resulting public debates furthermore contributes to the understanding why in the 1920s and 1930s resolving the conundrum of riot control agents took up such a central space in the framing of international norms against chemical warfare. Diplomats had already come to appreciate the dual-use potential of many commercial toxic chemicals. Preserving the legality of riot control agents in domestic law enforcement, while banning their use on the battlefields added an extra layer of complexity. Is it therefore not ironic that tear gas became a key factor in the formulation of the so-called ‘general purpose criterion’? The British draft disarmament treaty of 1933 contained its first iteration and today it is the cornerstone of the CWC. Indeed, law enforcement and domestic riot control is a purpose not prohibited under the convention.

Another interesting angle developed in the book is how the UK adopted tear gas, first allowing it in the colonies, then in Northern Ireland, before authorising its use on the main island. It extends a longstanding historical pattern whereby use of poison weapons was prohibited against one’s own creed or other civilised peoples but entirely appropriate against indigenous people or in the colonies. Again Feigenbaum describes how interested parties, through their appointment in specialised review committees set the standards for security and safety, could influence the public discourse and create a demand for new agents and dissemination systems.

In conclusion

Last year I reviewed Michael Crowley’s book Chemical Control: Regulation of Incapacitating Chemical Agent Weapons, Riot Control Agents and their Means of Delivery. I described it as a researcher’s data paradise offering highly technical and detailed information on the nature of riot control and incapacitating agents and their delivery systems, the research and development behind them, where they are being manufactured and how they are traded. However, this book is not for the novice.

Anna Feigenbaum’s Tear Gas is the perfect introduction to the subject matter. It is well written and engaging. It does not lose the reader in technical details but builds a cogent narrative as to why riot control agents are problematic in current police operations. The book is not objective, nor is it comprehensive. It seeks to mobilise public consciousness about a matter that is almost daily fare on international news channels. She hereby draws on several years of preparatory research and her efforts to map the global use of tear gas. In 2014 I already drew attention to her work. The last chapter in Tear Gas introduces the reader to her project and updates its status.

She focusses mainly on the United States and the United Kingdom, an outcome she attributes to her language limitations. In a certain sense, such country selection is also logical as the number of societies that release policy and technical documents for public consumption are rather limited. The data storytelling methodology may therefore reinforce this already pre-existing bias. Similarly, a question lingers as to how the methodology ascertains the comprehensiveness of collected information or is able to identify relevant gaps. I realise that my questions spring forth from a desire for comprehensiveness rather than from an explicit pursuit of social change. Notwithstanding, Feigenbaum has used the methodology to great effectiveness and in many ways has satisfied my eternal yearning for new insights and facts.

Note: Anna Feigenbaum and I have occasionally corresponded with each other on the topic of riot control agents and chemical warfare in World War 1. She has quoted several contributors (including myself) to the book Innocence Slaughtered, which I edited. Otherwise I have no connection with her research project or publication.


The Treaty on the Prohibition of Nuclear Weapons

(Cross posted from EJIL:Talk!)

On July 7, 2017 a vote was held by a United Nations treaty conference to adopt the final text of the Treaty on the Prohibition of Nuclear Weapons (TPNW). Of the 124 states participating in the conference, 122 states voted for adoption, one state (the Netherlands) voted against adoption, and one state (Singapore) abstained. This vote brought to a successful close the second and final negotiating session for a United Nations nuclear weapons prohibition convention, the mandate for which had been given by the General Assembly in December 2016. The treaty will now be opened for signature by states on September 20, 2017, and will come into force 90 days after its 50th ratification.

The TPNW provides for a complete ban on development, possession, and use of nuclear weapons by its parties. It is difficult to overstate the significance of the TPNW within the framework of treaties on nuclear nonproliferation. It is the first multilateral nuclear weapons disarmament treaty to be adopted since the Treaty on the Non-proliferation of Nuclear Weapons (NPT) in 1968. So we are witnessing a generational event of significance.

The essential obligations of the TPNW for any state that becomes a party thereto, are listed in Article 1, which provides as follows:

Each State Party undertakes never under any circumstances to:

(a) Develop, test, produce, manufacture, otherwise acquire, possess or stockpile nuclear weapons or other nuclear explosive devices;

(b) Transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices or control over such weapons or explosive devices directly or indirectly;

(c) Receive the transfer of or control over nuclear weapons or other nuclear explosive devices directly or indirectly;

(d) Use or threaten to use nuclear weapons or other nuclear explosive devices;

(e) Assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Treaty;

(f) Seek or receive any assistance, in any way, from anyone to engage in any activity prohibited to a State Party under this Treaty;

(g) Allow any stationing, installation or deployment of any nuclear weapons or other nuclear explosive devices in its territory or at any place under its jurisdiction or control.

The TPNW is the ultimate product of two main trends in international relations that, to the surprise of many observers, came together successfully within just the past few years. The first trend is the longstanding frustration of most of the states parties to the NPT with the noncompliance of nuclear-weapon-possessing states with the NPT’s disarmament provisions, located in Article VI.

The second, and more recent trend, is what has been dubbed the humanitarian initiative; an effort that took shape in 2012, and that brought together more than 150 states and myriad civil society groups to focus on the unacceptable harm to human life, health, and environment that would be caused by any use of nuclear weapons.

These two trends coalesced in August, 2016 at a special United Nations working group on nuclear disarmament, held in Geneva. This working group recommended the negotiation of a treaty comprehensively banning nuclear weapons. That Autumn, the First Committee of the General Assembly adopted a resolution approving the mandate for such a conference, leading to the December 16, 2016 General Assembly resolution.

Noticeably absent throughout the negotiations on the TPNW – including in General Assembly debates, the formal treaty negotiation sessions, and the voting on the final treaty text – have been all nine states known to possess nuclear weapons (the United States, the United Kingdom, France, China, Russia, Israel, India, Pakistan, and North Korea). These states, and a number of others, boycotted the negotiating process entirely. As Niki Haley, the U.S. Ambassador to the United Nations, explained: “In this day and time we can’t honestly say that we can protect our people by allowing the bad actors to have [nuclear weapons] and those of us that are good, trying to keep peace and safety, not to have them.” Similarly, the British Ambassador to the United Nations, Matthew Rycroft has stated: “The UK is not attending the negotiations on a treaty to prohibit nuclear weapons because we do not believe that those negotiations will lead to effective progress on global nuclear disarmament.”

Notwithstanding the non-participation of the nuclear-weapons-possessing states, the states negotiating the TPNW have expressed the view that the possession and potential use of nuclear weapons is an existential threat to humanity, and one that cannot be ignored simply because the few states that possess nuclear weapons are not yet ready to take meaningful steps to disarm themselves. They also see the TPNW as an important normative statement, by a supermajority of the states in the world, that the development, possession and use of nuclear weapons is immoral and must be prohibited, just as other weapons of mass destruction including chemical and biological weapons have been the subject of comprehensive prohibition treaties. And some states have expressed hope that this normative statement might contribute to the development of parallel customary international law.

Critics of the treaty, however, contend that without the participation and buy-in of the nuclear weapons states, the TPNW is little more than an idealistic statement of disapproval by states that do not themselves possess nuclear weapons. They argue that the TPNW will not be effective in convincing states that possess nuclear weapons to disarm, and that it may in fact do harm to the existing legal framework governing nuclear weapons proliferation, by undermining the centrality of the NPT as the nearly-universally-subscribed-to cornerstone of the regime.

The hope of states supporting the TPNW is that the treaty will constitute a normative nucleus around which efforts may be made by both states parties and international civil society to persuade nuclear-weapons-possessing states to join the treaty. The issue of verification of a former nuclear armed state’s implementation of the treaty’s disarmament provisions, once it becomes a party to the treaty, was one of the issues subject to heavy negotiation. The resulting provisions of Article 4 of the TPNW allow for former nuclear-weapons-possessing states to join the treaty as parties either after they have fully disarmed, or while still in possession of nuclear weapons, subject to a “legally binding, time-bound” plan for their destruction by a deadline to be determined by a meeting of the states parties.

From a legal perspective, there are many issues of analysis and interpretation that will keep scholars – well, me anyway – busy writing about the TPNW for years to come. These include the tension that will exist between the obligations of the TPNW, and the nuclear weapons commitments of NATO members. This, by the way, explains the Netherlands’ rather uncharacteristic vote against a nuclear disarmament treaty. NATO defense policy includes a longstanding commitment to nuclear weapons sharing agreements. At present, five NATO countries have such agreements with the United States, pursuant to which U.S. nuclear weapons are stationed on the territory of the host state, and are to be used by the host state’s military in the event of an armed conflict. The Netherlands is one of those states, along with Belgium, Germany, Italy, and Turkey. It is estimated that a total of 180 U.S. B-61 thermonuclear weapons are currently stationed on the territory of these five NATO host countries, the largest number of which are stationed at Aviano air base in Italy, and Incirlik air base in Turkey

But recall that Article 1(g) of the TPNW provides that no state party shall “Allow any stationing, installation or deployment of any nuclear weapons or other nuclear explosive devices in its territory or at any place under its jurisdiction or control.” This paragraph was very intentionally added to the TPNW in order to close a controversial loophole in Article II of the NPT, that NATO has long argued allows for such nuclear sharing agreements. So what happens if any member of NATO joins the TPNW? Can this provision of the TPNW be reconciled with the nuclear weapons sharing commitments of NATO members? Most NATO countries, clearly including the Netherlands, appear to think that it cannot be.

Other issues that require careful interpretation and analysis include the relationship between the TPNW and the NPT on matters such as safeguards of nuclear materials and facilities, and the role of the International Atomic Energy Agency. This is a subject that was contentious during the drafting of the treaty, and one on which I have already provided some preliminary commentary over at my blog.

From a political perspective, even without the buy-in of the nuclear armed states – and indeed precisely because of it – the TPNW will undoubtedly have an impact on nuclear weapons diplomacy going forward, particularly in the context of diplomacy surrounding the NPT. The next NPT Review Conference is scheduled for 2020, and the Preparatory Committee meetings for that conference have already begun. It will be important to see how the states parties to the TPNW seek to bring the treaty’s existence and implications into those already highly fraught negotiations about the health and relevance of the NPT. Many states parties to the TPNW see the new treaty as an implementation of Article VI of the NPT on nuclear disarmament, and will seek to have it acknowledged as such in the Review Conference’s final document. This will be heavily opposed by the nuclear armed states and those under their “umbrella” of nuclear protection. But negotiations on a consensus Review Conference final document are always unpredictable, and if some acknowledgment of the TPNW can be worked into it, that will represent a major political and potentially legal coup for the TPNW parties.

While much remains to be addressed both legally and politically concerning the TPNW, my own view is that the adoption of the TPNW is an event to be welcomed. It is a very useful legal supplement to the increasingly marginalized NPT, and represents a welcome shakeup of stagnant NPT politics. It very forcefully puts the issue of disarmament front and center in international nuclear weapons diplomacy. The nuclear-weapons-possessing-states can of course avoid signing the treaty. But it is now much more difficult for them to avoid seriously addressing the expressed will of the international community that nuclear weapons should be understood to be just as immoral as any other banned weaponry, and that as such their development, possession, and use should be prohibited in international law.


NYT Piece on U.S. Noncompliance with the JCPOA (with Commentary from Me)

See the article here.  I’m included in the video accompanying the article. I do think this is a straightforward case of noncompliance by the U.S. with the JCPOA.

It appears, though, that all signs point to this being the last 90 days of the U.S. participation in the JCPOA. See this analysis here.

I think this FP piece explains well how this would be the worst possible outcome for the U.S.   If Trump does withdraw from the deal, the U.S. will be a complete outlier and will be seen as having acted in bad faith.

Of course, we already look ridiculous to the rest of the world due to Trump’s other domestic and foreign policy blunders.