Toxic Chemicals as Law Enforcement Weapons: New ICRC Policy Position for the CWC Review Conference in April 2013

On February 6, 2013, the International Committee of the Red Cross (ICRC) issued a News Release (http://www.icrc.org/eng/resources/documents/news-release/2013/02-06-toxic-chemicals-weapons.htm) and a Policy Position (http://www.icrc.org/eng/resources/documents/legal-fact-sheet/2013-02-06-toxic-chemicals-weapons-law-enforcement.htm) on the issue of law enforcement use of toxic chemicals (e.g., chemical incapacitating agents) as weapons. These documents continue the ICRC’s effort to have the states parties to the Chemical Weapons Convention (CWC) address the CWC’s provision on law enforcement use of toxic chemicals (Article II.9(d)). In September 2012, I posted some thoughts for this blog on an earlier ICRC document on law enforcement use of incapacitating chemical agents, a document that informed the policy position the ICRC announced on February 6.

Consistent with its earlier legal analysis, the new ICRC policy document argues in terms of the CWC and other relevant bodies of international law as follows:

From a legal perspective the ICRC wishes to recall that in armed conflict there is an absolute prohibition on the use of toxic chemicals as weapons under the 1925 Geneva Protocol, the Chemical Weapons Convention, and customary international humanitarian law. This includes a prohibition on the use of riot control agents as a method of warfare. The use of biological agents and toxins as weapons is absolutely prohibited by the Geneva Protocol, the 1972 Biological Weapons Convention and customary international humanitarian law.

Outside armed conflict, the Chemical Weapons Convention, the Biological Weapons Convention, international human rights law, and international drug control law form an overlapping legal framework regulating the use of toxic chemicals as weapons for law enforcement. It is the ICRC’s current assessment that this legal framework leaves little room, if any, for the legitimate use of toxic chemicals as weapons for law enforcement other than the use of riot control agents, as defined in the Chemical Weapons Convention.

Despite the conclusion that the CWC, combined with other international legal rules, drastically restricts, if not eliminates, legitimate law enforcement uses of toxic chemicals as weapons, the ICRC argues that:

The development and use of other toxic chemicals as weapons–such as the highly potent anaesthetic and sedative drugs considered in recent years as so called “incapacitating chemical agents”–presents serious risks to life and health, risks undermining international law prohibiting chemical weapons, and risks creating a ‘slippery slope’ towards the reintroduction of chemical weapons into armed conflict. The ICRC believes that these risks far outweigh any perceived operational benefits.

Thus, the ICRC advocates that CWC states parties, individually and collectively at the CWC review conference in April 2013 and other diplomatic forums, work to restrict law enforcement use of toxic chemicals exclusively to riot control agents (e.g., tear gas), as defined in the CWC.

In terms of international legal analysis, I agree with the ICRC that international law significantly restricts legitimate law enforcement uses of incapacitating chemicals. In the International Review of the Red Cross (2005) (http://www.icrc.org/eng/assets/files/other/irrc_859_fidler.pdf), I argued that, when read in conjunction with relevant rules of international law (e.g., human rights), a CWC state party’s ability to use incapacitating chemical agents for law enforcement purposes under Article II.9(d) of the CWC is very limited. I might quibble with the ICRC’s reading of international drug control treaties in its analysis, but such quibbles do not change my belief that the ICRC’s legal conclusion on this issue is correct.

However, I start to have problems with the “slippery slope” part of the ICRC’s analysis. My September 2012 post on the earlier ICRC document raised issues that, I think, still exist with respect to the ICRC’s policy position it just announced:

The problem is that the [ICRC’s] 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.

I sense that the ICRC is presenting these two messages in order to hit a policy “sweet spot” with states–moving from the status quo to an explicit ban should be easy and non-controversial given existing international law and eliminates any “slippery slope” possibility, a win-win policy and legal option. But, my speculative conjecture is that the ICRC’s two legal messages might adversely affect the policy recommendations it is making to all states.

Policymakers could interpret the “no ambiguity” conclusion as meaning that new policy or legal actions are not needed at national or international levels. If, as the ICRC claims, international law severely restricts, if not eliminates, legitimate uses of toxic chemicals for law enforcement purposes, why spend time and scarce resources enacting new national laws and seeking more international legal action? The stronger international law appears, the weaker the political incentive to take further policy action might be. Perhaps that’s why the ICRC raises the “slippery slope” legal argument to bolster political incentives to act.

But, the “slippery slope ambiguity” implies a lack of consensus among states about constraints on use of incapacitating chemical agents and a lack of commitment to multiple international legal regimes applicable to the issue. In this more troubling context, what confidence would policymakers have that one more international rule would solve the existential threat to the CWC’s fundamental purpose the ICRC fears? The “slippery slope ambiguity” argument makes international law appear like a house of cards that will completely collapse unless we add just one more card. Further, if enough ambiguity exists to make the “slippery slope” a real possibility, then achieving agreement internationally will be very difficult because ambiguity is apparently useful to a number of states. The weaker international law appears, the stronger the political incentive to preserve policy space might be.

Of course, speculative conjecture often turns out to be speculative conjecture unrelated to what actually unfolds. Going forward, three of the ICRC’s four recommendations target action at the national policy and legal level, with the strategy being to build a “bottom up” movement by concerned states that can, over time, translate into influence in relevant diplomatic contexts to produce, ultimately, an international prohibition on the use of toxic chemicals that are not riot control agents for law enforcement purposes. This strategy contrasts with unrequited hopes by concerned groups and individuals that CWC states parties would directly and effectively address this issue at previous review conferences in the first decade of this century. Whether the ICRC’s strategy for a “ground game” at the national level gains traction before the CWC review conference in April 2013 remains to be seen, but the ICRC, I would imagine, sees this strategy as an endeavor that will require more than a few months to make a difference.