Incapacitating Chemicals and the Chemical Weapons Convention: Reflections on the ICRC’s Perspectives on International Law and Toxic Chemicals as Weapons for Law Enforcement

The International Committee of the Red Cross (ICRC) recently circulated a six-page synthesis and two-page summary of the ICRC’s work on the threat it perceives that incapacitating chemicals used by law enforcement pose to the absolute prohibition on the use of chemical weapons in armed conflict contained in the Chemical Weapon Convention (CWC) [see ICRC, Toxic Chemicals as Weapons for Law Enforcement: A Threat to Life and International Law?: Synthesis (Sept. 2012); and ICRC, Toxic Chemicals as Weapons for Law Enforcement: A Threat to Life and International Law?: Summary (Sept. 2012)]. These documents are informed by ICRC activities on incapacitating chemical weapons, the CWC, and international law, including meetings with a broad range of participants held in March 2010 and April 2012. The ICRC intends the synthesis and summary to inform policy makers and civil society about this issue in the lead-up to the CWC review conference in April 2013.

The ICRC identifies the main problem in this area as the ambiguity that exists in the CWC provision that permits the use of toxic chemicals for law enforcement purposes, including domestic riot control (CWC, Article II:9(d)). This provision does not, in the ICRC’s words, specify “which toxic chemicals may be used as weapons for law enforcement and which ‘types and quantities’ are consistent with these purposes” (Synthesis, p. 2). The ICRC observes that different interpretations of this provision have been offered without CWC states parties acting to clarify the meaning despite opportunities to do so at the last two CWC review conferences.

However, the ICRC observes that other international legal regimes, namely international human rights law and international drug control treaties (1961 Single Convention on Narcotic Drugs and 1971 Convention on Psychotropic Substances), significantly, if not entirely, reduce the scope of legitimate law enforcement use of incapacitating chemicals as weapons. The ICRC observes that “it is extremely difficult, if not impossible” to use incapacitating chemicals for law enforcement purposes in ways consistent with human rights principles. It concludes that the international drug control treaties leave “little room, if any, for the legitimate use of toxic chemicals–other than riot control agents–as weapons for law enforcement of international law” (Synthesis, p. 3).

Informing these interpretations of international human rights law and international drug control treaties is scientific and medical input on the serious risks to human life and health associated with use of incapacitating chemicals as weapons for law enforcement purposes. In law enforcement situations, the police or security forces cannot control the dose of the chemicals to which persons are exposed, determine the conditions of exposure to the chemicals, or provide the urgent medical attention victims of exposure need. The scientific and medical input reinforces the legal interpretation that other areas of international law applicable to law enforcement use of weapons leave little to no ambiguity about the illegitimacy of law enforcement use of toxic chemicals beyond riot control agents.

The impact of these bodies of international law and the medical/scientific input suggests that the CWC’s law enforcement provision is not as ambiguous or dangerous as perhaps feared–meaning that CWC states parties could simply ratify this reality at the April 2013 review conference without much controversy. Here, we see the ICRC attempting to show CWC states parties how easy it is to accept the significant restrictiveness of the CWC’s law enforcement provision under a comprehensive international legal interpretation of it.

But, at the same time, the ICRC remains very concerned about ambiguity in the CWC’s law enforcement provision creating a risk that governments will exploit it to develop and use chemical weapons in armed conflict, leading to “a ‘slippery slope’ back to chemical warfare” (Synthesis, p. 5). Here, the ICRC uses fear of the consequences of legal ambiguity to motivate CWC states parties to take urgent action to prevent the “slippery slope” from emerging.

The problem is that the two messages–one arguing that no legal ambiguity really exists, the other asserting that dangerous legal ambiguity is present–do not seem consistent. On the one hand, the ICRC’s analysis of the CWC in light of other applicable international legal rules attempts to demonstrate that use of incapacitating chemical weapons for law enforcement purposes has virtually no legitimacy. In other words, we don’t really have legal ambiguity here when we look across all bodies of international law relevant to the CWC’s law enforcement provision. On the other hand, the ICRC warns about the “slippery slope” the ambiguity of the law enforcement provision creates that could lead to the destruction of the CWC’s absolute prohibition on use of chemical weapons in armed conflict. Or, we really have legal ambiguity here that is potentially catastrophic.

The ICRC’s position would make more sense if it argued that the layers of international law already in place seriously restrict, if not eliminate, the scope of law enforcement use of incapacitating chemicals, meaning that getting from law enforcement scenarios to use of chemical weapons in armed conflict would have to involve blatant and wholesale violations of multiple bodies of international law. This scenario is less a “slippery slope” than a nightmare involving clear and comprehensive violations by states of many international legal rules, including the CWC, international human rights law, international drug control treaties, and international humanitarian law.

Or, consistency would be achieved if the ICRC argued that the other relevant bodies of international law (as informed by medical and scientific input) do not resolve the ambiguity surrounding law enforcement use of incapacitating chemicals. Here, legal ambiguity would exist in not only the CWC’s law enforcement provision but also the other applicable international legal rules–and this aggregate ambiguity creates the “slippery slope” that CWC states parties need to address directly and urgently at the next review conference. However, the ICRC’s documents do not identify any such ambiguity in interpreting the CWC, international human rights law, and international drug control treaties that would support a dangerous “slippery slope” scenario threatening the very purpose of the CWC.

Ironically, the ICRC’s approach might provide CWC states parties two ways to avoid addressing its concerns about law enforcement uses of incapacitating chemical weapons. First, CWC states parties could assert that the CWC, combined with other international legal rules, sufficiently limits the scope of law enforcement use of incapacitating chemicals that no additional action is needed at a review conference. Second, CWC states parties could acknowledge continuing legal ambiguity on this question but politically prefer ambiguity to clarity–as has already happened at the past two review conferences.

At any rate, CWC states parties are unlikely to be impressed by the ICRC arguing simultaneously that international law virtually eliminates legitimate law enforcement uses of incapacitating chemical weapons and contains legal ambiguity on this issue on a scale that threatens to destroy the CWC and drag other relevant areas of international law into disrepute.