Chlorine: A weapon of last resort for ISIL? (Part 2)
Posted: February 17, 2015 Filed under: Chemical | Tags: Allegation, chemical weapons, Chlorine, CWC, Iraq, OPCW, Syria, Terrorism Leave a comment[Cross-posted from The Trench.]
From September 2014 on several reports have alleged chlorine use by the Islamic State in Iraq and the Levant (ISIL) in Iraq. The claims began shortly after the Organisation for the Prohibition of Chemical Weapons (OPCW) had released its first report on its investigation into the chlorine attacks in Syria earlier in the year. In a politically highly charged atmosphere in which supporters and opponents of the regime of President Bashir al-Assad use any incident to blame insurgent forces of atrocities or call for regime change, one must necessarily view accusations of chemical warfare with a healthy dose of scepticism. This is particularly the case if allegations disappear as quickly as they surface.
However, during the autumn of last year there was some consistency in the albeit irregular reports. Furthermore, on 10 February, OPCW Director-General Ahmet Üzümcü confirmed that the Iraqi authorities had notified the OPCW of chlorine gas attacks against Iraqi soldiers. At present it is not known which steps, if any, the OPCW will undertake with regard to these allegations.
Last October I described how al Qaeda in Iraq (AQI), a precursor organisation to ISIL, applied chlorine in a campaign of car bombings between October 2006 and June 2007. While many people in the vicinity of the detonation required medical treatment for exposure to the agent, nobody was actually killed by the gas. This posting looks into the various allegations of insurgent chlorine attacks in Syria and Iraq since 2013.
Chemical weapons in the Middle East remain sensitive
Posted: December 14, 2014 Filed under: Chemical | Tags: Chemical warfare, chemical weapons, Middle East, Syria Leave a comment[Cross-posted from The Trench]
On 4 December I addressed a workshop on Nuclear Safety, Security and WMD Non-proliferation. The event was organised by Atomic Reporters and the Vienna Center for Disarmament and Non-Proliferation (VCDNP), together with the Stanley Foundation and the James Martin Center for Nonproliferation Studies (CNS). The target audience consisted of more than 20 journalists from or working in the Middle East.
My presentation ‘Responding to chemical weapon use in Syria’ addressed the allegations of chemical weapon (CW) use in Syria since early 2013 and the international CW disarmament operation over the past 15 months.
The audience’s reactions at times illustrated how sensitive the question of CW remains in the Middle East. When people are forced outside their comfort zone offered by established reference frameworks, regional security discussions quickly become tense. If ever serious progress is to be made on the idea of a zone free of non-conventional weapons in the Middle East, preparing a common reference framework for the participants in the debates—particularly civil society constituencies who must prepare the ground to make proposed solutions politically and socially acceptable—will be an unescapable task.
Lale Kemal, a Turkish journalist, captured the exchanges very well in a piece for the Daily Zaman on 8 December. If she leaves you with the impression that the discussions were not just intense, but also most stimulating, then I can confirm they were.
Middle East’s ‘unique’ status on chemical weapons
A colleague from a Middle Eastern country reacted sharply when a speaker in a recent workshop in Vienna used the term “Muslims” in some of his references to the countries in the region during his presentation on the issue of chemical weapons. The colleague urged him to use the names of the countries instead of generalizing them with their affiliation to Islam. The topic of chemical weapons is a sensitive one. Jean Pascal Zanders, director of The Trench — a website specializing in reporting on chemical weapons — told the workshop audience in Vienna that with the exception of the First Indochina War, all cases of major chemical warfare after World War II have taken place in the Middle East.
Yet this journalist’s reaction to the speaker in his usage of the term “Muslims” does not change the reality that — in the words of Mehmet Dönmez, head of Turkey’s Religious Affairs Directorate — around 900 Muslims per day are killed by fellow Muslims around the world, including in the Middle East. Nevertheless, the topic of the workshop for journalists from the Middle East, held in Vienna between Dec. 3-5, was on nuclear safety, security and WMD non-proliferation. WMD is short for “weapons of mass destruction,” which are chemical, biological and nuclear weapons — the deadliest weapons that have so far been developed by humankind.
The workshop was sponsored by the United Arab Emirates (UAE), along with nongovernmental organizations the James Martin Center for Nonproliferation Studies (CNS), the US-based Stanley Foundation and Vienna-based Atomic Reporters. The event was hosted by the Vienna Center for Disarmament and Non-Proliferation (VCDNP). It was a follow-up to the first workshop, which was held in I.stanbul in June of this year in cooperation with I.stanbul’s Okan University.
Going back to the topic of chemical weapons in the Middle East, Zanders from The Trench cited the known incidents of the usage of chemical weapons in the region, including Egypt during its war with Yemen in the 1950s and Iraq against Iran in 1984 during the long-lasting war between the two countries in the 1980s, as well as Iraq’s use of mustard gas against its own Kurds. Syria lately staged a sarin gas attack against its own citizens in Ghouta, near Damascus. Syria’s chemical weapons were destroyed under a deal it struck with some world powers, yet it is unclear whether the country is still hiding some of its chemical weapons stockpile.
Meanwhile, Israel is the only country in the Middle East widely known to possess nuclear weapons, even if it neither denies nor confirms their existence. Iran is accused by the international community of seeking to develop nuclear weapons under the guise of developing nuclear energy power plants.
Dr. Chen Kane from the CNS strengthened Zanders’ assertion, saying during the workshop that, concerning cases of the usage of chemical weapons as well as their possession, the region is unique. According to her, in the Middle East, all three categories of weapons of mass destruction — chemical, biological and nuclear — have been pursued by different states and chemical weapons have even been used in the region on several occasions. She mentioned fundamental ongoing territorial, religious, ethnic and other disputes that underline that the reality of WMDs and that the acquisition of WMDs in the region is interrelated and politically and security-motivated. Out of the seven violations of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), Dr. Chen said five are from the Middle East — Iran, Iraq, Libya, Syria and Egypt. This situation illustrates the risk associated with nuclear programs in unstable countries and war zones. It is unclear if any Middle Eastern country possesses biological weapons. The unstable nature of the Middle East also carries the risk of terrorist groups obtaining WMDs.
In February 2015, the Ja?far al-Tayya-r brigade and the al-Nusra Front gained control of the al-Kibar site (also called Dair Aizour) in Syria, where a nuclear reactor believed to have been under construction was destroyed by Israel during an air raid in 2007. According to Zanders, the Islamic State in Iraq and Syria (ISIS) — a terrorist group against which US-led Western and Arab coalition forces are currently carrying out an air campaign in both Iraq and Syria — has not obtained WMDs.
Turkey, a NATO member and a neighbor to the Middle East, came under criticism a long time ago for using white phosphorus — a kind of a chemical weapon — against militants from the outlawed Kurdistan Workers’ Party (PKK). However, Zanders stated that such allegations from the PKK have never been confirmed by international organizations addressing WMDs.
The absence of a security framework or organization in the Middle East — where there is no regional conventional arms control culture — to mitigate the danger of WMDs poses a great threat to the region in particular and the world in general.
Wow! Did the OPCW really say that?
Posted: December 13, 2014 Filed under: Chemical | Tags: Allegation, CWC, Disarmament, international law, Israel, OPCW Leave a comment[Cross-posted from The Trench]
It is true that pressure for Israel to join the Chemical Weapons Convention (CWC) is steadily mounting. Presently 190 states are party to the treaty. Besides Israel, only Angola, Egypt, Myanmar, North Korea and South Sudan have not ratified or acceded to it. As participants in the 2014 Jonathan Tucker Conference on Chemical and Biological Arms Control heard yesterday from Dr Peter Sawzcak, Head of Government Relations and Political Affairs Branch of the Organisation for the Prohibition of Chemical Weapons (OPCW), Myanmar is expected to ratify the CWC in its forthcoming parliamentary session in January. The Council of Ministers of Angola, which will take up a non-permanent seat in the UN Security Council next year, is to decide on joining the Arms Trade Treaty, Biological and Toxin Weapons Convention, and CWC really soon. South Sudan may also become a party to the CWC in the near future as part of a broader package deal under development. As was pointed out by some other speakers at the Jonathan Tucker Conference, being in the company of North Korea is not good for a democracy such as Israel.
However, in an article published on 11 December the Times of Israel quoted an anonymous OPCW official affirming that Israel has a chemical weapon (CW) stockpile. He also stated that he knew the size of the chemical arsenal, but refused to go into details. According to a second article in Arutz Sheva Israel Radio quoted the official as saying that the UN needed to begin an investigation of Israel on its chemical weapons stores, as it did with Syria.
According to the Times of Israel, he also said that Egypt has thousands of tonnes of CW.
Israel is a CWC signatory state. Under Article 18 of the Vienna Convention on the Law of Treaties a signatory state is obliged to refrain from acts which would defeat the object and purpose of a treaty. In other words, if Israel were indeed to have a CW stockpile, it would be in a clear breach of its international obligations. This is not a light accusation to make. Particularly if it is made in the name of the multilateral organisation that is responsible for ridding the world of these heinous weapons.
Striking too is the lack of nuance in the claims. Egypt and Israel have had past CW programmes. But in the absence of reports of troop training and testing of munitions, how useful is it to retain aging stockpiles? Would the agents be subject to degradation? Are stocks being replenished (which implies active CW production facilities)? Egypt’s ‘thousands of tonnes’ puts the country in the same league as Iraq under Saddam Hussein and North Korea (according to South Korean assessments) and well ahead of what has been removed from Syria over the past eighteen months. Mohamed Heikal, an Egyptian journalist and commentator on Arab affairs, described in his excellent book Illusions of Triumph: Arab View of the Gulf War (London: Fontana, 1993, pp. 91–93) how then Egyptian President Anwar Sadat closed down Egypt’s CW production plant after the 1973 Arab-Israeli war and in 1981 refused to reopen it to supply Saddam Hussein with CW. To the best of my knowledge, this passage has not yet been seriously challenged.
Considering the culture of confidentiality at the OPCW and the organisation’s systematic refusal to comment on individual states—just take the many anodyne press statements on the CW disarmament project in Syria—the incident is remarkable to say the least. One would hope that those specific assertions were intended to be wholly off the record, but even so…
Update
OPCW Statement Regarding Israeli Media Reports on a Recent OPCW Briefing
Thursday, 11 December 2014
OPCW officials met with a group of journalists from Israel on Monday of this week and briefed them on the OPCW’s work, achievements and future challenges. On the issue of achieving universality of the Chemical Weapons Convention (CWC), it was mentioned to the journalists that there are six non-States Parties to the Chemical Weapons Convention, including Israel.
In regard to the capacities of those six countries, it was clearly stated that the CWC verification regime functions on the basis of declarations, and that the OPCW would be able to ascertain possession of chemical weapons by any non-State Party only after it joined the Convention and made a formal declaration to the Organisation.
Engaging Israel on CWC Ratification – Part 1: Outsider Perspectives
Posted: November 24, 2014 Filed under: Chemical | Tags: CWC, Disarmament, Israel, Middle East, Ratification, Universalisation 1 Comment[Cross-posted from The Trench]
The Israeli Disarmament Movement together with the Chemical Weapons Convention Coalition (CWCC) and Green Cross convened two days of roundtable discussions on Chemical Weapons, Israel and the Middle East in Tel Aviv. The third day, 12 November, a briefing was held in the Knesset. In a region where (existential) security and the nuclear weapons stand central to any debate on arms control strategies, the exclusive focus on chemical weapons (CW) was a rare occurrence.
The meeting goals were twofold: promote ratification of the Chemical Weapons Convention (CWC) by Israel and to have Israel take a more positive stance in the diplomatic engagements to establish a zone free of non-conventional weaponry in the Middle East. The conveners viewed CWC ratification as a potential significant step towards achieving the latter goal.
Each day had different ambitions. Day 1 sought to broaden knowledge of CW issues and the functioning of the CWC among a diverse group of Israeli civil society constituencies and reporters. Day 2 followed Track II approach, engaging representatives from Israeli academic institutions and think tanks, and other policy shapers. On the final day the invited speakers briefed parliamentarians in the Knesset.
This report summarises external arguments why Israel should ratify the CWC. The next posting will focus on Israeli views.
Üzümcü: “After Syria I do not see any country able to use chemical weapons anymore”
Posted: November 17, 2014 Filed under: Chemical | Tags: Chemical warfare, CWC, Disarmament, International Humanitarian Law, OPCW, Syria 3 Comments[Cross-posted from The Trench.]
The last day of October, a sunny Friday in The Hague, I met with Ambassador Ahmet Üzümcü to reflect on the previous year and a half, during which the civil war in Syria suddenly thrust the Organisation for the Prohibition of Chemical Weapons (OPCW) into the spotlight.
In March 2013 United Nations Secretary-General Ban Ki-moon requested technical assistance from the OPCW to investigate alleged chemical weapon (CW) use in the war-torn country. Six months later, after a serious incident in which sarin nerve agent killed and poisoned many hundreds of people in the Ghouta district of Damascus, Syria unexpectedly joined the Chemical Weapons Convention. And so began an urgent and perilous disarmament project. The announcement that the OPCW was to receive the 2013 Nobel Peace Prize just knocked international expectations from the organisation several notches higher.
The Syrian disarmament project has had a clear impact on the OPCW. Not just on its daily operations during the past 18 months, but it will also affect its future. However, the key question is whether the OPCW’s success in trying circumstances can inspire the international community to revive disarmament as a security tool.
Syria’s CW precursors have been evacuated and are almost all destroyed. Destruction of former CW production facilities has now begun. What were you thinking last year when you accepted the tight deadlines in the US–Russian Geneva Framework Agreement?
The Framework Agreement reached in Geneva on 14 September of last year was a significant achievement. The Russians and Americans wrapped up their negotiations in four days, which surprised us as much as the whole international community. We knew that the OPCW could be called on to address the chemical part of the Syrian conflict. In which form and under which conditions, we did not know then. Even so we were prepared to get involved and if necessary, to take the lead, all the while knowing such a project would be very challenging.
We first saw this document on 14 September. On 27 September, the Executive Council decided on OPCW involvement and a few hours later the United Nations Security Council (UNSC) endorsed that decision. Between both dates, we had 13 days to prepare our team for deployment to Damascus, work out the modalities, and so on. Having said that, I should add that the Technical Secretariat had been preparing itself for several contingencies. They included possible investigation of alleged CW use. We were thus ready when in March 2013 the UN Secretary-General called upon our expertise. In September, we had a team of 60 volunteer inspectors ready to go to Syria. They had trained to carry out different tasks.
Still, I was following the Geneva talks from Beijing. The negotiators raised questions whether we would be ready to do this or that. Our responses were all positive. We looked at our gaps. We identified a few areas where we would need some additional support, so we decided to rehire some of our former experts and hire some external experts. Important to us was to act swiftly and diligently. We also had to demonstrate to the international community that after 16 years the OPCW had the necessary capacity and expertise. I think we succeeded.
As I said, on Friday, 27 September, the decision was taken here. The same day the UNSC endorsed it in a resolution. On Monday, our inspectors were on their way. On Tuesday, they arrived in Damascus. The UN clearly had some difficulties to match this pace. The UN mechanism is huge compared to ours. So I called Secretary-General Ban Ki-moon on Thursday, the day before the UNSC decision. I told him that we were ready to deploy and asked him for logistical and security support, which we received. Despite the magnitude of the challenge and the security situation in Syria, I think the Technical Secretariat was fully prepared to lead. When I say ‘lead’, I of course refer to the technical part of the operation. We relied on the UN for logistical support and security.
The other obvious challenge was the financial dimension. In that respect, having seen the support from the whole international community for this Russian–US initiative, I actually did not have any concerns. It was proven later on that we would have the necessary funds in both the UN and the OPCW Trust Funds. Financial aspects would not be problematic and they never were.
A year ago, I should say, we were both mentally and physically prepared to go to Syria. I personally was involved in setting up a task force, which I chaired every morning on the 7th floor of the OPCW headquarters. This also gave me the opportunity to know better some of our staff members. They were really capable and pleased to be able to help coordinate such a major operational mission.
Chlorine: A weapon of last resort for ISIL?
Posted: October 26, 2014 Filed under: Chemical | Tags: Chemical warfare, Chlorine, Iraq, ISIL, Terrorism, War 6 CommentsOver the past few weeks several press reports have suggested that the Islamic State of Iraq and the Levant (ISIL) have resorted to chlorine use in attacks in Iraq and Syria.
The grouping is no stranger to chlorine. In some earlier incarnation it was known as al Qaeda in Iraq (AQI) and later it rebranded itself as the Islamic State of Iraq when it explicitly began trying to control territory. Harsh imposition of its strict interpretation of Sharia law and extreme violence towards anybody refusing total subjugation to its rule soon had Sunni tribal leaders uniting in resistance early in 2007. They also began cooperation with forces of the US-led coalition occupying Iraq since 2003 and the Shia-dominated Iraqi government. AQI started mounting large-scale operations involving several hundreds of fighters to capture local seats of power. During the first half of 2007 suicide attacks with lorries rigged with a large quantity of explosives evolved from isolated incidents to terrorise and destabilise societies to a tool integrated in assaults against government centres and fortified positions. After an isolated attempt in October 2006, AQI launched almost 20 chlorine attacks in the first half of 2007.
This posting is a first effort to understand the dynamic behind ISIL resorting to chlorine and perhaps some other toxic chemical substances in military operations in Iraq and Syria. If current chlorine attacks can be confirmed, then some interesting parallels with the brief episode in Iraq may be discerned (but the hypotheses do require further study to be confirmed):
New naval anti-piracy tactics – pepper spray and “domestic” riot control
Posted: October 14, 2014 Filed under: Chemical | Tags: BTWC, CWC, Piracy, Riot control agent, UK 13 Comments[Cross-posted from The Trench]
Yesterday the Smithsonian “Smartnews” site featured the article Robot Ships And Pepper Spray—the Latest in Pirate-Fighting Tech. According to the piece, UK researchers are actively looking into mobilising capsaicin – the active ingredient in pepper spray – to fend off pirate attacks at sea:
[…]
The age of naval battles between huge ships on the high seas seems to have passed into distant memory. Instead, some of the most devastating attacks on giant vessels in recent years have been executed by boats small enough to get through the larger ships’ defenses.
But now, governments around the world are working on technology designed to stop these attacks. In the U.K, researchers are working on a remote monitoring system—called the MATRiX system—that resituates the traditional responsibilities of a lookout to land-bound control rooms. The system has a connected network of anti-pirate deterrents attached to the outside of the ship. If a threat is detected, the deterrant [sic] system releases two relatively simple tools—nets that will catch in the propellers of attacking boats and a fog of capsaicin, the active ingredient in pepper spray (and bear repellent).
[…]
My question is: how does that fit with international law?
It stretches the understanding of non-prohibited purposes as defined in Article II, §9(d) of the Chemical Weapons Convention (CWC), which allows the use of riot control agents for law enforcement purposes, including domestic riot control. The concept of “law enforcement” is vague in the CWC and efforts are underway to clarify the notion in the context of various research and development activities concerning incapacitants.
In this particular case, however, it seems that not even law enforcement officials would the responsible for the decision to release the capsaicin against pirates (unless they are the ones sitting in “land-bound control rooms”). The afore-mentioned article suggests that the device would be deployed by the merchant ship under attack. Even if law enforcement officials would be at some land-based centre, would they be able to override the captain’s authority or would they just give the captain the green light to activate the system when needed? If the captain must call in authorisation from land, what country’s jurisdiction would come into play? The country under whose flag the ship is sailing? The country on whose territory the control rooms are located? The country whose nationality the law enforcement officials possess?
In light of the ongoing privatisation of security (who actually uses force to defend the ships against attacks? who sits in the land-based control rooms?), the blurring of boundaries between armed conflict and counter-terrorism / -crime operations, and the banalisation of riot control agents, it would appear that legal clarity about this new contraption should be established by the relevant national authorities and the international community (represented by the Organisation for the Prohibition of Chemical Weapons—OPCW).
Having said that, capsaicin is a toxin—a poison produced by a living organism. As such the legitimacy of its application is also covered by the Biological and Toxin Weapons Convention (BTWC). That treaty does not distinguish between whether the compound was derived from the chili pepper or produced synthetically. More importantly, however, the BTWC does not make an exception for law enforcement purposes. This leaves the question as to whether “law enforcement” can be considered to be one of the “other peaceful purposes” in Article I.
As it stands now, nobody has really been able to give me a sound explanation why the provisions of the CWC should supersede those of the BTWC.
I am open to good legal arguments.
OPCW Confirms the Use of Chlorine as a Weapon in Syria in the Months of May, June and July 2014
Posted: October 3, 2014 Filed under: Chemical Leave a commentI’m pleased to host a brief informational post from friend of ACL Onur Guven, who is a Researcher in Public International Law at the prestigious T.M.C. Asser Institute.
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OPCW Confirms the Use of Chlorine as a Weapon in Syria in the Months of May, June and July 2014
By Onur Guven, LLM
Based on the latest report of the OPCW Fact-Finding Mission in Syria on Alleged Chlorine Gas Attacks (FFM), the Organisation’s Executive Council (EC) concluded last Friday that “chlorine was used as a weapon systematically and repeatedly”. The chemical, which is a common household chemical and is also used for example in water purification installations, has been used as a weapon against villages in Northern Syria. The attacks have not yet been attributed to any of the parties to the conflict in Syria. Questions remain whether the Syrian government is in compliance with the Chemical Weapons Convention to which Syria has acceded in October 2013. The FFM brief on the OPCW website reports the use of chlorine gas as a weapon while HRW had documented numerous uses of aerial dropped barrel bombs throughout the war, including its report on the use of chlorine gas cylinders embedded in barrel bombs and dropped from helicopters. On the conclusions of the EC the OPCW Director-General comments that “[i]t is a tragic irony that a hundred years after chlorine was first used on the battlefield, its misuse to kill and terrorise unarmed civilians has again raised its ugly head.” It is interesting that the Director-General refers to WW1. Prior to and during WW1 the 1899 Hague Declaration already provided restrictions on the use of gas projectiles which have the sole object of diffusing asphyxiating or deleterious gases. The German Empire initially sought to avoid this restriction by releasing chlorine gas through cylinders when the wind was in the direction of enemy positions. The escalating gas warfare in WW1, including the use of other gases, led eventually to the adoption of the prohibition on the use of “asphyxiating, poisonous or other gases, and (of) all analogous liquids, materials or devices” as found in the 1922 Washington Naval Treaty (Article 5) and the 1925 Geneva Protocol. The same definition is used in Article 8, para. 2(b) (xviii), of the Rome Statute which recognises the “employment of asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices” as a war crime. Questions had been raised earlier on the interpretation of Article 8 in view of the drafting history of the Kampala Amendments and the text of the provision (see Alamuddin and Webb, Expanding Jurisdiction over War Crimes under Article 8 of the ICC Statute, Journal of International Criminal Justice, Vol. 8 (2010), pp. 1219-1243; Akande, Can the ICC Prosecute for Use of Chemical Weapons in Syria?, EJIL: Talk!, August 2013; and Heller, Syria, Chemical Weapons, and the Incoherence of the VCLT, Opinio Juris, August 2013). The question now is whether these recent cases will provide opportunity to clarify the issue.
Threat posed by Islamic State’s capture of Iraq’s Muthanna CW site
Posted: September 29, 2014 Filed under: Chemical | Tags: chemical weapons, CWC, Iraq, Islamic State, Middle East, Terrorism, Verification 3 CommentsIn a letter dated 7 July 2014 Iraqi Ambassador to the United Nations Mohamed Ali Alhakim notified UN Secretary-General Ban Ki-moon that ‘armed terrorist groups’ had entered the Muthanna complex on 11 June. The next morning a project manager observed them looting of some equipment via the camera surveillance system before the ‘terrorists’ disabled it. The document, as cited by the Associated Press, explicitly referred to the capture of bunkers 13 and 41, two locations still holding chemical weapons (CW) so severely damaged during the 1991 war to liberate Kuwait that until today they could not be disposed of in a safe way.
The capture of two CW storage bunkers at Muthanna by Islamic State of Iraq and the Levant (ISIL, now shortened to Islamic State) has raised fears of chemical warfare in Iraq as well as Syria. The insurgent grouping’s habitual resort to extreme violence in combat, its strict upholding of Sharia law, and uncompromising attitude towards ‘non-believers’ leave many a commentator convinced that it will stop at nothing in its pursuit of the Islamic state.
Analysis of documents relating to the dismantlement of the Muthanna complex in the 1990s and the subsequent monitoring of the site however demonstrates that it would be all but impossible for ISIL to acquire and use Iraq’s former CW, or for that matter, the toxic residues of warfare agents.
Should the ISIL fighters still find sarin, then the probability of the agent’s degradation below any useful degree of purity is extremely high. An additional 20 years have passed since the UNSCOM Chemical Demolition Group sealed the storage bunkers. Mustard agent is far more stable, but both UNSCOM and UNMOVIC reported significant degradation. 155mm artillery rounds were found to contain hydrogen gas and other breakdown products leading to considerable internal pressure. Moreover, the thick-skinned shells proved particularly difficult to penetrate and drilling risked ignition of the built-up gases.
UNSCOM selected two bunkers at Al Muthanna for their solid structure. After completion of destruction operations, it sealed the structures. They blocked off all entrances with two brick walls and a 5cm layer of tar in between them. A third brick wall was erected at a distance of 1 metre from the second wall and the space in between was filled with reinforced concrete. Together, the overall thickness of the entrance seals amounts to 1.5 metres. The hole at the top of bunker 13 containing the sarin rockets and precursor chemicals from a US bomb in 1991 was closed by filling the whole inner room with soil through that hole and then plugging it with reinforced concrete.
Any penetration of the bunker by ISIL fighters would require major dismantling and rubble removal, all the while not knowing the exact location of the toxic chemicals, propellants and explosives and facing potential exposure to contaminated soil or air. Even the Organisation for the Prohibition of Chemical Weapons (OPCW) is still considering how it might proceed to determine the bunker’s exact contents.
More technical details on the state of Iraq’s former CW and tables on the contents of the bunkers are in an article I wrote for the August edition of CBRNe World. Registration may be required, but it is for free.
[Cross-posted from The Trench.]
The Ferguson Social Unrest and the Use of Tear Gas: Some Thoughts from the European point of view
Posted: September 11, 2014 Filed under: Chemical 4 CommentsI’m very pleased to host another guest post from Dr. Daniel Rietiker. This time Daniel provides a very interesting comparative insight into how the European Court of Human rights has approached the issue of the use of tear gas for riot control purposes. I thought this analysis was particularly useful and interesting being at the juncture of arms control law and international human rights law. I think this is an area that could be more thoroughly explored in scholarly literature.
The Ferguson Social Unrest and the Use of Tear Gas: Some Thoughts from the European point of view
Daniel Rietiker, PhD
Introduction
On August 9, 2014, Michael Brown, an unarmed African-American, was fatally shot by a white police officer in Ferguson, Missouri. The incident was followed by heavy protests and civil unrest that lasted for weeks. The local police responded by using non-lethal weapons and tear gas. These tragic events raise various questions of international law. Probably the most relevant question for arms control lawyers is whether the use of tear gas by the police in the aftermath of the shooting in response to the protests was adequate and legitimate. The European Court of Human Rights (hereafter : ECtHR) has a well-established practice in the field of riot control, including the use of tear gas, that will be briefly explained here. A more comprehensive study on the interplay between arms control and human rights will be presented by this author in a forthcoming publication.
[the following observations, as far as they concern case law, are based on the ECtHR’s legal summaries that can be found on the Court’s website:
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx#%5D
The lawfulness of riot control measures, in particular the use of tear gas, in the light of the jurisprudence of the ECtHR
It can be recalled that under the Chemical Weapons Conventions (hereafter: CWC), “law enforcement including domestic riot control purposes” are considered “purposes not prohibited” under the convention (Article II.9.d CWC). Moreover, Article I § 5 CWC stipulates that States Parties undertake not to use riot control agents as a method of warfare. The practice of the ECtHR in numerous cases in particular against Turkey in respect of the use of tear gas to counter potentially violent demonstrations reflects this logic. The Court examines these cases, inter alia, in the light of Article 3 of the European Convention on Human Rights (hereafter: “ECHR”), that reads as follows:
Article 3: Prohibition of torture:
No one shall be subjected to torture or to inhuman and degrading treatment or punishment.
Article 3 ECHR constitutes one of the cornerstones of the human rights protection and democratic society in Europe. It flows from its unqualified terms that this provision contains an absolute guarantee. Moreover, it cannot be derogated from in time of war or other public emergency (Article 15 § 2 ECHR). In other words, the States do not enjoy any margin of appreciation under Article 3, but have to refrain from inflicting the prohibited treatment in all circumstances, even for the highest reason of public interest.
The ECtHR interprets and applies exclusively the ECHR. It is not the guardian of other international treaties, such as the CWC. On the other hand, the Court does not interpret the ECHR in isolation, but in harmony with other applicable “relevant rules of international law”, as required by Article 31 § 3 c) of the 1969 Vienna Convention on the Law of Treaties (CVDT). Therefore, it is not surprising that the Court, in the examination of a possible violation of Article 3 by the use of tear gas, refers to the CWC, expressing its point of view in the following terms (Oya Ataman v. Turkey, no. 74552/01, Judgment of 5 December 2006):
17. Under Article I § 5 of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction of 13 January 1993 (“the CWC”), each State Party undertakes not to use riot control agents as a method of warfare. Tear gas or so-called “pepper spray” are not considered chemical weapons (the CWC contains an annex listing the names of prohibited chemical products). The use of such methods is authorized for the purpose of law enforcement, including domestic riot control (Article II § 9 (d)). Nor does the CWC state which State bodies may be involved in maintaining public order. This remains a matter for the sovereign power of the State concerned. The CWC entered into force with regard to Turkey on 11 June 1997.
18. It is recognized that the use of “pepper spray” can produce effects such as respiratory problems, nausea, vomiting, irritation of the respiratory tract, irritation of the tear ducts and eyes, spasms, chest pain, dermatitis or allergies. In strong doses, it may cause necrosis of tissue in the respiratory or digestive tract, pulmonary oedema or internal haemorrhaging (haemorrhaging of the suprarenal gland).
It derives from these paragraphs that, in situations of riots, protests and social unrest, the appropriate use of tear gas can be a justified and proportionate use of force and therefore turn out to be compatible with Article 3 ECHR. Nevertheless, the Court has found violations of this provision as a result of an unclear legal provisions authorizing tear gas or in cases where the law-enforcement authorities had made improper or unnecessary use of tear gas (substantive limb of Article 3) [see, for instance, the case Abdullah Yaşa and Others v. Turkey, no. 44827/08, 16 July 2013, where the applicant had been injured in the nose by a tear gas canister fired by a police officer; his injuries had unquestionably been serious enough to meet the threshold of Article 3 ECHR].
Moreover, even though the threshold of Article 3 is generally not met by the appropriate use of tear gas, the authorities are still under a procedural obligation to conduct an in-depth investigation into alleged violations of human rights (formal limb of Article 3 ECHR). Under this duty, the State has to conduct a satisfactory investigation allowing the accurate establishment of facts, as well as the identification and prosecution of the officers responsible for acts amounting to ill-treatment in the sense of Article 3 ECHR.
It is also noteworthy that in some instances, the Court referred to another human rights body, namely the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT), that had repeatedly expressed concerns over the use of tear gas in law-enforcement situations and urged the States to adopt clearer directives in national law on that subject. This was also the case in the recent judgment İzci v. Turkey (42606/05, 23 July 2013), where the Court, unanimously, found violations of the substantive and procedural aspects of Article 3 of the ECHR by the use of disproportionate force and lack of an effective investigation, and besides a violation of Article 11 on account of the failure to respect the applicant’s right to freedom of assembly. In this case, the applicant had taken part in a demonstration in Istanbul to celebrate Women’s Day which had ended in clashes between police and protesters. Video footage of the events showed police officers hitting a large number of demonstrators with truncheons and spraying them with tear gas. Women who had taken refuge in shops were dragged out by the police and beaten up. The police officers had not issued any warnings to disperse demonstrators before attacking them and the demonstrators, for their part, had not tried to respond to the attack but had only tried to flee.
This case is a typical example for the repeated violations of the ECHR that occur in demonstrations in Turkey. What is remarkable about this case is the fact that Court considered these problems as “systematic”, reiterating that it had already found in over 40 judgments against Turkey that the heavy-handed intervention of law-enforcement officials in demonstrations had amounted to a violation of Article 3 and/or Article 11 ECHR. The common feature of these cases is the unwillingness of the police forces to show a certain degree of tolerance towards peaceful gatherings and, in some instances, the precipitate use of force, including tear gas. Moreover, in over 20 of the judgments, the Court had already observed the failure of the Turkish authorities to carry out effective investigations into allegations of ill-treatment by law-enforcement personnel during demonstrations. It further stressed that 130 applications against Turkey concerning the right to freedom of assembly and/or use of force by law-enforcement officials during demonstrations were currently pending.
Considering the perspective that generally prompts the procedure with a view of implementing the final judgments, combined with the Court’s clear message in the İzci case, there is hope that the Committee of Ministers of the Council of Europe (CoE) – the body responsible for the supervision of the implementation of the ECtHR’s judgments (Article 46 ECHR) – will impose on Turkey strong measures, such as an order to review national legislation and to train the members of the police in order to comply with Article 3 in law-enforcement situations including the use of tear gas.
Conclusions
It goes without saying that the cases mentioned above are not identical to the circumstances of the unrest in Ferguson following the shooting of Michael Brown, nor is the legal framework for the use of force by the police the same. In the European context, a very high standard applies, both on the substantive and the formal (procedural) level. As far as the latter is concerned, and taking the Ferguson events as example, the investigating authority would have to establish what really happened in the aftermath of August 9, 2014, and it would ultimately incumbent on the judges to decide whether the force used by the police to counter the riots, including the use of tear gas, was in line with the applicable law and the state of art in this field. Such a thorough international scrutiny, based on a well-established practice by the ECtHR, does not exist in the United States.
(Daniel Rietiker, PhD, Lecturer in international law, University of Lausanne, Swiss Member of the ILA’s International Committee on Nuclear Weapons, Non-Proliferation & Contemporary International Law and Visiting Fellow at the Human Rights Program of Harvard Law School, spring/summer terms 2014).
Arms Control Law 