The banalisation of tear gas
Posted: August 17, 2014 Filed under: Chemical | Tags: chemical weapons, CWC, International Humanitarian Law, Riot control agent, Tear gas 6 CommentsI am not the only person who is concerned by the banalisation of tear gas as a riot control agent. Over the past few years, the intensity with which such agents have been used has increased markedly, to the point that whole sections of cities now routinely become saturated with the toxic chemicals. In particular Michael Crowley of Bradford University’s Non-Lethal Weapons Project has published studies on the fast technological development and growing global markets of riot control agents and their delivery systems: one in collaboration with the Omega Research Foundation, and one, co-authored with Dana Perkins, then expert of the 1540 Committee, for the Biochemical Security 2030 Project, University of Bath. Likewise, the Physicians for Human Rights issued a report in 2012 on the Bahrain government’s indiscriminate use of tear gas, and in 2013 another one on tear gas excesses in Turkey.
The recent massive use of tear gas by a highly militarised local police force to quell riots in Ferguson, Missouri, has drawn renewed attention to a weapon that the Chemical Weapons Convention bans as a tool of warfare.
Anna Feigenbaum has just published a historical overview of tear gas in The Atlantic, starting with the fist use of a chemical weapon by the French in World War 1 exactly 100 years ago this month.
Perhaps most striking is her compilation and mapping of global tear gas use during 2013 (my screenshot):
A PDF printout of the incidents she has listed runs for 19 pages.
Alas, if a riot control agent is used as a tool for law enforcement or domestic riot control purposes, then the Chemical Weapons Convention does not consider it as a chemical weapon and therefore falls outside its scope of application.
[Cross-posted from The Trench]
Arms Control Law 
Apparently Iran has not used tear gas against its people.
A great post, Jean-Pascal. One of the students in the course on arms control law that I recently taught at the UNSW was particularly interested in this subject, and on the somewhat gray area in the CWC, Article II(9)(c) which lists as a purpose not prohibited by the convention “Military purposes not connected with the use of chemical weapons and not
dependent on the use of the toxic properties of chemicals as a method of
warfare.” How broadly should this exception for the military to use chemicals like tear gas, be interpreted? And where is the line between military officers and law enforcement officers, when many law enforcement officers today look and act much more like a military than like a traditional police force?
Dan, thank you for your comment and query.
I would not link the clause on military purposes not connected with the use of chemical weapons to the use of riot control agents. Their exception as a chemical weapon if used for law enforcement purposes, including domestic riot control, is governed by Art. II, 9(d).
Many chemicals are dangerous or toxic. Their use as part of combat operations often requires a chemical reaction. Nevertheless, the paragraph must be read in close connection with Art II, 2, which refers to the ‘chemical action on life processes‘ to cause death, temporary incapacitation or permanent harm to humans or animals. In other words, the reference to other military purposes concerns toxic chemicals whose utility in combat excludes the chemical action on life processes. They do not depend on their toxicity for their action; toxicity is not the primary factor as to why they may harm humans or animals (plants are not included in the definition). Excluded would thus be items such as explosive chemicals (recall the British use of Lyddite in the Boer War, which released poisonous fumes and led to Boer accusations of violations of the laws and customs of war), rocket fuels, incendiaries (e.g., white phosphorous), smoke (screening purposes), etc.
The reason why this clause cannot be linked to riot control agents is that riot control agents do exploit their toxic properties to harm humans and animals. Article II, 7 recognises the toxic properties of riot control agents, but imposes certain limits on the harm they can do. Thus whereas Article II, 9(c) excludes dependence on toxicity to justify their legitmacy with respect to the CWC, paragraph 9(d) defines the circumstances, i.e., the purposes, under which the application of riot control agents are not prohibited. The approach to define legitimacy is quite different in both paragraphs.
Having said that, if rocket fuels, incendiaries, smoke, etc. were to be used in such a way so as to deliberately exploit their toxic propoerties, this would be banned under the general purpose criterion of the CWC in Article II, 1(a).
So, personally, I would not call this a grey area.
Thanks for your reply, Jean-Pascal. Its been a long time since I really delved into CWC law – since I wrote the CBW chapter for my 2009 book. That’s why I’m glad to have you around – a true expert in CBW law! When I wrote my comment, I suppose I was using the term “gray area” to refer to the use of riot control agents like tear gas by militaries as against civilians in cases such as occupation, and other times when militaries feel it necessary to use such agents against civilians. I wrote about this issue on pages 108-111 of my 2009 book. But again, its been a long time since I wrote that. I’ll send you that chapter via email, in hopes that my thoughts will make more sense there!
I just want to say to you again publicly how much I appreciate and value your contributions to ACL. There are very few people in the world who write so knowledgeably about CBW law as you do, and I appreciate your continued collaboration.
Even though this post was written in response to the social unrest in Ferguson, it is also relevant to the current situation in Hong Kong. On Sunday evening, law enforcement officers began using tear gas and pepper spray against protestors. This is just another example of what JP Zanders referred to as the banalisation of tear gas as a riot control agent. On Sunday, it was the banalisation of the use of tear gas that provided an impetus for many people to join the Occupy movement. It also provided the inspiration for the logo of the newly coined “Umbrella revolution”.
It is interesting that the CWC provides a blanket exception for “law enforcement including domestic riot control purposes.” The definition of “riot control agent” in Article II(7) is also interesting, as the effects of tear gas may not “disappear within a short time following termination of exposure” depending on the context in which it is deployed. If the CWC provides for such exceptions, what other instruments of international law can be used to hold governments accountable for the use of tear gas against their own citizens?
Although tear gas is banned in international warfare under the Chemical Weapons Convention, Article II Section 9 of the CWC provides an exception that the use of such chemicals for “law enforcement including domestic riot control purposes” is not prohibited. But chemical weapons are chemical weapons. This does not change depending on the situation in which it is used. If it is considered inhumane to deploy tear gas in warfare, why would it be any more humane to use it on civilians?
A plausible explanation is that when the CWC was negotiated, the member states are unwilling to their limit their sovereignty by prohibiting the use of tear gas domestically. The US actually has a standing executive order that reserves the right to use tear gas on the battlefield (see http://www.slate.com/articles/news_and_politics/explainer/2010/02/why_isnt_tear_gas_illegal.html and http://www.archives.gov/federal-register/codification/executive-order/11850.html).
In the Preamble of the CWC, it is stated that the State Parties to this Convention is “determined for the sake of all mankind, to exclude completely the possible of the use of chemical weapons.” By providing this exception, the CWC is unlikely to be living up to this.