[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 Guterres formally informed UN members on 11 January that Palestine had withdrawn its instrument of accession three days earlier.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 However, I do not recall having come across an instrument of accession being withdrawn after its formal deposit.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.
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.
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.
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.)
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.
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.
Building A WMD-Free Zone on Existing Treaties and Conventions Syrian CWC-Adherence and Reactions, Especially in IsraelPosted: May 8, 2017
[Cross-posted from The Trench.]
Speaking notes for the side event to the 2017 Preparatory Committee of the Nuclear Non-Proliferation Treaty (NPT), organised by the Geneva Centre for Security Policy (GCSP) and Academic Peace Orchestra Middle East (APOME), Vienna, 8 May 2017.
It builds on and updates an earlier posting of 13 March 2015.
Operation of the CWC in the Middle East
- As of 1 May 2017, the Chemical Weapons Convention (CWC) comprises 192 states parties. The CWC entered into force 20 years ago, on 29 April 1997. It has the largest number of parties of any weapon control treaty.
- Four states, including two from the Middle East, are still outside the convention: Egypt, Israel, North Korea and South Sudan. (Israel did sign but not ratify the convention.)
- Given the armed conflicts in different parts of the Middle East, the Organisation for the Prohibition of Chemical Weapons (OPCW) has intervened in Syria and Libya to secure declared chemical weapons (CW) and have them destroyed in other parties to the CWC so as to prevent their use by any one of the belligerents in either country. The Libyan operation took place in August 2016. It drew on the precedent set by and experience gained from the evacuation of chemicals from Syria.
Situation in Syria
- Syria acceded to the CWC on 14 September 2013 and formally became a state party on 14 October. This was the outcome of a framework agreement on the elimination of Syria’s chemical warfare capacities between Russia and the United States reached in Geneva on 14 September.
- Since Syria’s accession to the CWC the OPCW has:
- verified the destruction of 24 of the 27 CW production and storage facilities. Lack of safe access has prevented inspectors from destroying one final aircraft hangar and confirming the condition of two stationary above-ground facilities.
- overseen the evacuation and complete destruction of all declared chemical chemicals (precursors to nerve agents and mustard agent) for a total of about 1,300 metric tonnes. It also verified the destruction of declared delivery systems.
- However, there remain several outstanding issues, including the OPCW’s inability to confirm the destruction of 200 metric tonnes of mustard agent in March 2013 (i.e. about 6 months before Syria’s accession to the CWC), the discovery of nerve agent traces in locations not declared by the Syrian government, and the later discovery of an undeclared ricin production facility.
- Furthermore, since Syria’s accession there have been multiple incidents involving the use of toxic chemicals as weapons, mostly chlorine. On 4 April an attack with the nerve agent sarin took place against the city of Khan Sheikhoun, the first such use since the sarin strike against Ghouta in August 2013. At the time of writing it is unclear whether the sarin was prepared from undeclared volumes of precursor chemicals or whether Syrian scientists and engineers produced a batch from scratch.
- The Islamic State in Iraq and the Levant (ISIL) has been responsible for some isolated attacks with chlorine and mustard agent in Syria and Iraq. This has created new challenges for the OPCW in terms of investigating and responding to the alleged events. Indeed, these incidents mostly involved the use by a non-state actor against another non-state actor on the territory of a state party to the CWC that is not under the control of that state party.
- The Fact-Finding Mission (FFM) of the OPCW has confirmed repeated CW use in Syria. The UN Security Council established the OPCW-UN Joint Investigative Mission (JIM) to attribute responsibility for the chemical attacks. JIM has thus far held the Syrian government responsible for three attacks and ISIL for one. Its investigation is ongoing.
Responses from within the Middle East
- Iran is a strong backer of the Syrian leader Bashar al-Assad. Having been a victim of chemical warfare during the 1980–88 Iran-Iran war, it strongly condemns chemical warfare. However, it denies the Syrian government’s responsibility for the CW attacks since August 2013 and instead blames insurgent factions. It follows the arguments laid out by Russia (and to a lesser extent by China) and plays an active role in the decision-making processes relating to the technical assessments prepared by the FFM in the Executive Council of the OPCW.
- Some government officials, politicians or commentators both inside and outside the Middle East have made rather wild allegations (without any factual substantiation of these political statements) that other external parties to the civil war supply belligerents with the materials for chemical warfare. Iran has been named as a supplier of the Syrian government; uncontrolled stockpiles in Libya might be transferred to various belligerents in Syria.
- Attribution of responsibility for the CW attacks has been accompanied by claims that neighbouring states are responsible for supplying or facilitating the transfer of chemicals and equipment to belligerent factions they support. Since with the exception of Israel all neighbouring states are parties to the CWC, the claims are tantamount to an accusation against such states of a material breach of the convention.
- The current Israeli government has long maintained that Syria has never given up its entire CW capacity since joining the CWC. The difficulties for the OPCW to close the Syrian disarmament dossier tend to reinforce Israel’s deep-rooted pessimism about the ability of international weapon control treaties to guarantee its national security. Israeli attitudes towards Iran, which include conviction of Tehran’s non-compliance with the CWC, appear to be bolstered by Iran’s on-the-ground military support for Syria and Hezbollah in both Lebanon and Syria and its interventions in the OPCW Executive Council.
- Over the past two decades the CWC has contributed much to the removal of the spectre of chemical warfare, particularly in the Middle East. Addressing specific challenges in Syria and Libya, the states parties to the convention have demonstrated adaptability, flexibility and willingness to support financially or materially the extraordinary disarmament efforts in the field. As a result, the treaty regime has evolved considerably with respect to meeting challenges unforeseen by the CWC negotiators.
- However, the unrelenting use of toxic chemicals as a weapon of warfare in Syria fundamentally challenges the CWC’s most basic premise to never under any circumstance use CW. Furthermore, backing of belligerents by outside parties (all of whom have joined the CWC) is increasingly tending towards a violation of the prohibition to never under any circumstances to induce, in any way, anyone to engage in any prohibited activity (Article I ‘General Obligations’).
- Syria’s inability or unwillingness to resolve all outstanding issues with regard to its CW programmes also challenges the integrity of the CWC and the OPCW’s operational procedures. Factual findings are becoming more and more politicised (often driven by ulterior geopolitical motivations), making consensus-based decision-making increasingly difficult.
- Since the 2nd World War all major occurrences of chemical warfare (with the exception of US use of herbicides and riot control agents in Indochina in the 1960s and early 1970s) have taken and are taking place in the Middle East. All these instances of CW use in the Middle East involved Arab regimes and have targeted fellow Arabs, Muslims or their own population. None were ever launched against Israel.
- Compared with the question of regional nuclear disarmament, which directly involves Israel, Arab countries have despite the history of chemical warfare in the region remained remarkable indifferent to the many uses of chemical weapons. For instance, not a single member of the Arab League contributed financially or materially to the disarmament operations in Syria or Libya.
Commemoration of the 20th Anniversary of the Entry into Force of the Chemical Weapons Convention (The Hague, 26 April 2017)
Collection of speeches
- Welcome address by Ambassador Ahmet Üzümcü, Director-General of the OPCW
- Video message by Mr António Guterres, Secretary-General of the United Nations
- Address by Mr Bert Koenders, Minister of Foreign Affairs, The Netherlands
- Address by Crown Princess Victoria of Sweden
- Address by Mrs Pauline Krikke, Mayor of The Hague
- Address by Ambassador Dr Christoph Israng, Chairperson of the Conference of the States Parties
Some photographic impressions
[Cross-posted from The Trench]
On 9 December I attended a one-day seminar entitled Assistance and capacity-building in the context of UN Security Council Resolution 1540, Disarmament and Non-Proliferation in Addis Ababa, Ethiopia. It took place in one of the committee rooms in the old building of the African Union Commission. It had none of the trappings of many modern high-tech venues, but offered all amenities one can wish for during a day-long meeting: an electricity plug under the desk (a civilisational advance that has yet to reach the main room for meetings of the Biological and Toxin Weapons Convention, or BTWC, at the United Nations in Geneva), internet access, soothing brown background colours of wood-panelled walls, and—most unusual nowadays—daylight. Two pyramidal domes in the ceiling let in glorious sunshine and skimming light entering through the rows of windows running the entire length of the back wall softened the sharp contrasts thrown by the sunrays from above. Even in the late afternoon when a diffuse darkness was gradually filling the committee room, the rays of a setting sun lit up the roofs of nearby buildings in a colourful backdrop to participants exchanging final impressions of the day’s discussions.
A diverse African landscape of assistance and capacity-building programmes
The seminar organised by the African Union and the Pretoria-based Institute for Security Studies (ISS) aimed to map out the many initiatives underway to assist the African continent with meeting its obligations under various UN Security Council Resolutions and multilateral global and regional treaties limiting the acquisition, possession and use of non-conventional weapons. As good as the entire day was structured around a new publication by the ISS entitled CBRN [Chemical, Biological, Radiological and Nuclear] Assistance and Capacity-Building Programmes for African States. Written by Annie DuPre and Nicolas Kasprzyk, the 95-page directory gives a detailed overview of worldwide providers of assistance, be they states, international organisations or civil society entities. The seminar also built on a major conference convened by the African Union on 6–7 April 2016 to review the implementation of UN Security Council Resolution 1540 in Africa.
Some 40 people attended, just under half of whom were representatives from local embassies of African states. Other participants came from global and regional organisations and specialised agencies involved in assistance and capacity-building in support of disarmament, non-proliferation and counter-terrorism, or had long-term expertise in relevant fields.
While I had been aware of several initiatives, the range of organisations running such programmes took me by surprise. Besides entities such as the African Union, the UN Regional Centre for Peace and Disarmament in Africa (UNREC), the UN Interregional Crime and Justice Research Institute (UNICRI) in collaboration with the EU CBRN Centres of Excellence, many other international bodies are also deeply involved. Among those presenting overviews of their activities were the Inter-Governmental Authority on Development (IGAD), an eight-nation cooperative arrangement in East Africa whose role in non-conventional weapon control is rather unexpected, but explicable in view of the security situation in founding member Somalia; the African Biosafety Network of Expertise (ABNE)—a specialised branch of the African Union’s New Partnership for Africa’s Development (NEPAD); and the UN Office on Drugs and Crime (UNODC) that also works on the prevention of terrorism.
My former colleague, Alex Lampalzer of the BTWC Implementation Support Unit, and I reflected on the outcomes of the BTWC Review Conference last month. Another colleague of mine at the Paris-based Fondation pour la recherche stratégique, Emmanuelle Maitre, spoke on progress in the universalisation of the Hague Code of Conduct (HCoC) against the proliferation of ballistic missiles.
Exactly one year ago today, the Conference of the States Parties in its 20th session decided on the establishment of the Advisory Board on Education and Outreach (ABEO) as a subsidiary body to the Organisation for the Prohibition of Chemical Weapons (OPCW).
In 2016 the 15-member board met twice and formulated its first sets of recommendations. On 1 December I reported on the ABEO’s work to the 21st session of the Conference of the States Parties. Due to a 7-minute time restriction I could deliver only a summary of the most important points. Below is the full text of the statement as circulated to the states party to the Chemical Weapons Convention.
[Cross-posted from The Trench]
At last year’s Conference of the States Parties you decided to establish the Advisory Board on Education and Outreach (ABEO) as one of the subsidiary bodies of the Organisation for the Prohibition of Chemical Weapons (OPCW). The ABEO received as mandate to advise the Director-General or States Parties on matters of education, outreach and awareness-raising, and public diplomacy concerning the Chemical Weapons Convention (CWC) and its international and domestic implementation in relation to States Parties and key stakeholder communities. Put differently, it seeks strategies to assist the OPCW with deepening the involvement of the stakeholder communities in preventing the re-emergence of chemical weapons.
The Director-General appointed 15 members to the Board, whose mandate started on 1 January of this year. Based on the principle of equitable regional distribution, they comprise:
- 3 persons from Africa: Kenya, Morocco and South Africa;
- 4 persons from Asia: China, India, Iraq and Japan;
- 2 persons from Eastern Europe: Poland and the Russian Federation;
- 2 persons from Latin America and the Carribean: Argentina and Mexico; and
- 4 persons from Western Europe and Other States: Belgium, Germany, the United kingdom and the United States.
Two members—Prof WANG Wencai (China) and Dr Austin ALUOCH (Kenya)—are Alumni of the Associate Programme. One member, Prof. Alastair Hay (UK), is a recipient of the 2015 OPCW–The Hague Award. While the ABEO resulted from groundwork laid by the OPCW Scientific Advisory Board (SAB), ABEO membership includes not just chemists and other scientists, but also experts with backgrounds in the political sciences, history, diplomacy, as well as persons well versed with issues in chemical weapon disarmament, education and outreach strategies, or the functioning of National Authorities.
In addition, and as a first for Advisory Boards, the ABEO can also benefit from the expertise of select observers. Observers are non-permanent and they are invited in function of the meeting agenda. However, the Rules of Procedure stipulate that a representative of the International Union for Pure and Applied Chemistry (IUPAC) is to participate in the ABEO’s work as a permanent observer. At their second meeting in October 2016, the Board Members decided to accord a similar status to a representative from the International Council of Chemical Associations (ICCA).
In its first year of activity the ABEO has met twice, in April and October 2016. With the help from the Technical Secretariat an electronic discussion platform has been set up, so that Members can continue to discuss and develop recommendations in the so-called ‘intersessional period’. This electronic platform allows the setting up of sub-groups in which ABEO Members, as well as observers, can develop ideas and discuss working papers on topics decided at the preceding meeting. The goal is to have well-conceived proposals for final consideration and adoption by the full Board.
Towards common understandings
Mr Chairperson, the first meeting (28–29 April 2016) focussed mainly on team building. Each member and observer presented an overview of their education and outreach activities, thereby highlighting objectives and describing their respective methodologies. The Board furthermore heard detailed briefings by Technical Secretariat staff members. Substantive work developed along two tracks, namely specific requests submitted to the Board by the Director-General requiring short-term replies, and identification of strategic-level, i.e., longer-term aspects of developing education and outreach methodologies.
Strategic-level thinking implies a need for common understandings for key concepts and terms as well as identification of key stakeholder communities. It also implies the identification, elaboration and prioritisation of issue areas, the development of multi- and cross-disciplinary approaches to education and outreach, and the permanent evaluation of tasks and activities in function of changing circumstances under which the OPCW must continue to function.
The ABEO proceeded in its second meeting (4-6 October 2016) with identifying key stakeholder communities and plotting how they and the OPCW interact with each other.
As the CWC effectuated a clear division of labour between the Technical Secretariat and the National Authorities it followed naturally that stakeholdership in the convention exists on both the international and national levels. From the exercise also followed the insight that certain stakeholder communities may be targets of the OPCW’s education and outreach activities, while they may be partners under different circumstances. The press is a case in point. A well-conceived public diplomacy strategy can clarify to journalists the CWC’s intricacies, the functioning of the OPCW and the tasks and responsibilities of the Technical Secretariat in its various missions. When the OPCW makes the headlines, the media will be better situated to reflect accurately the challenges and opportunities facing the community of States Parties.
For its deliberations, the ABEO accepted working definitions for concepts such as education, outreach, training and public diplomacy. Such differentiation in turn enabled identification of primary strategies to be developed under each concept in function of the type of stakeholder community to be engaged. Moreover, it will also enable the ABEO to take into consideration different regional and local cultural approaches to education and outreach. The ABEO Members are agreed that no single methodology can fit all circumstances.
First substantive recommendations
The upcoming 20th Anniversary of the CWC’s entry into force was one area that preoccupied the ABEO in its first year. During the intersessional period the subgroup dedicated to the topic already submitted to the Technical Secretariat a list with concrete programme elements and activity proposals. At the second meeting the ABEO formulated more conceptual recommendations. These include:
- to brand the celebration as ‘20th Anniversary Year’ to emphasise that a series of activities rather than a single event will commemorate the CWC’s entry into force, as well as provide a common heading for all regional and national commemorative activities;
- to set up a website dedicated to the 20th Anniversary Year with information about events. A celebration-specific logo could be adopted;
- to promote besides the major event in The Hague global, regional and national celebration;
- to ensure OPCW strategic outreach to stakeholders. The 20th anniversary celebration in The Hague should include senior representatives of the sciences and industry. For other activities, appropriate regional or international industry and scientific organisations ought to be invited;
- to celebrate the science behind the effectiveness of the OPCW in meeting its mandate in regional or national events. These could be organised back-to-back with regional National Authority events and involve key partners, such as academe and industry;
- to produce a film on the destruction of chemical weapons so as to preserve some filmic record of these processes for future education of scientists and engineers;
- to provide early notification to enable organisational planning of regional and local events; provide funds to initiate and support such regional and organisation; and create outreach material on the OPCW and the CWC, specific to the 20th Anniversary Year, for broad distribution.
A global campaign condemning the use of the industrial toxic chemicals—chlorine in particular—as weapons led to many letters by chemical associations worldwide and increasingly by chemical industry associations being sent to the Director-General. The ABEO recommended that these letters be publicised on the OPCW website. It gives me great pleasure to note that this recommendation was implemented last Tuesday (29 November).
The ABEO also recommended a thorough review and overhaul of the OPCW’s public diplomacy strategy in function of permanent, systematic engagement with stakeholder communities.
Other recommendations addressed youth outreach and engagement of civil society during sessions of the Conference of the States Parties. Some elements are already being implemented, such as briefings on the workings of the Technical Secretariat to the members of the CWC Coalition attending the 21st Conference of the States Parties.
Mr Chairperson, in preparation for its third meeting next March, an ABEO working group is considering in detail how to assist National Authorities with carrying out education and outreach activities. In particular it will seek to enhance regional coordination among National Authorities, encourage use of existing educational materials, and stimulate ideas for developing new ones. Online educational tools already developed by the Technical Secretariat will be assessed and recommendations for methodological harmonisation and other improvements submitted.
A second working group is looking into ways to engage specific stakeholder communities, in particular scientific associations, industry, professional organisations and other expert communities. Primary themes to be developed include raising barriers against erosion of norm against chemical weapons and the CWC, means and ways of keeping those stakeholder communities informed and engaged in Convention-mandated activities, and engaging them in the further development of the treaty regime in light of the changing national or international environments in which the CWC must remain relevant.
Other working groups of ABEO Members will consider recommendations on how to address immediate challenges to the CWC regime as part of a public diplomacy strategy, ways to engage with other international organisations in promoting peace and disarmament education.
Work will also continue on ‘Longer-term strategies’, ‘Outreach at the regional, national and local levels’ and ‘Youth outreach’.
Besides these activities ABEO Members have also actively participated in regional seminars for National Authorities organised by the Technical Secretariat. In my capacity as Chairperson I made presentations on opportunities for education and outreach in the Workshop on Article XI implementation and the Annual Meeting for National Authorities. Finally, the ABEO and the Scientific Advisory Board have established a working relationship and plan to collaborate and consult with each other in areas of common interest.
Mr Chairperson, by way of conclusion I wish to thank on behalf of the Board Members all States Parties that have recognised the work of the ABEO in its first year and support its goal of promoting substantive interaction between the OPCW and its many stakeholder constituencies with a view of safeguarding the world from a re-emergence of chemical weapons. We are looking forward to your continuing endorsement, including in a more tangible form when we will set up a trust fund to support our projects and activities. And as a final reminder: you the States Parties can also request the ABEO’s advice on pertinent matters.
I request that the full text of this statement be considered as an official document of the Conference and published on the OPCW public website.
I thank you.
Michael Crowley, Chemical Control: Regulation of Incapacitating Chemical Agent Weapons, Riot Control Agents and their Means of Delivery (Palgrave Macmillan: Basingstoke, 2015), 378p.
Anybody who has attended one of Michael Crowley’s annual presentations at the Organisation for the Prohibition of Chemical Weapons (OPCW) on the challenges posed by riot control and incapacitating agents for the future of the Chemical Weapons Convention (CWC) knows his passion for the subject matter. And his overwhelming knowledge about the latest developments in science, technology, industry and government policies. These characteristics also typify his book on the topic, Chemical Control, published late last year.
The book can be read on three levels:
- as an almost encyclopaedic presentation of facts,
- as an in-depth analysis of the regulatory regimes pertaining to chemical crowd control agents, which leads to concrete policy recommendations, and
- as a treatise on the analytical framework that has guided the research and the book structure.
Each level has merit in its own right. The third one, however, lifts this book above many other monographs on weaponry. Not just because of the ways in which it has informed Crowley’s research and analysis, but because it opens windows to fundamental debates on the purpose of disarmament and arms control today and tomorrow. He was right to resist calling his analytical framework a theory, but it nevertheless contains elements of theory. He formulates certain assumptions, but the book’s primary goals unfortunately do not give him the space to discuss them in depth. Because Crowley fundamentally questions some traditional understandings of the purpose of disarmament and arms control, he lays down an intellectual challenge that disarmament theorists or international lawyers cannot ignore.
A rich data source
The first level is that of the researcher’s data paradise. The monograph offers 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, and most importantly for the other levels on which the book can be read, where and how they are being used.
Chemical warfare has its fair share of horror stories. About the impact of toxic chemicals on the body—from the painful and slow-healing blistering of the skin by mustard agents to the uncontrollable convulsions caused by exposure to sarin or other nerve agents. About the human experiments conducted not just in the Japanese prisoner of war camps in China in the Second World War or the dungeons of the darkest totalitarian regimes, but also in the bastions of Western democracy. Until today veterans in the UK and the USA, for example, are fighting to have their contribution to the national defence effort officially recognised and receive adequate compensation and health care—if they are still alive.
However, it is quite a different present-day horror story to read that quite a few states use incapacitants and riot control agents (such as tear gas)—toxic chemicals that some try to sell to public opinion as so-called non-lethal or humane weapons—to torture prisoners or regime opponents. Page after page, table after table Crowley details national practices of certain countries. They beggar belief were it not for the fact that source references make up two-thirds of the pages with tables.
Crowley methodically presents the different types of agent together with their characteristics and consequences after exposure, the country armament programmes and practices, and incidents. He never meant those pages to be read in a systematic way; they are detailed reference materials for researchers worldwide. In that sense he comes as close as possible to an encyclopaedic treatment of the subject matter. Future reports by him and other researchers will have to update the data sets.
If assimilation of this wealth of data might appear daunting, then section introductions and conclusions pull the main strands of his empirical analysis neatly together.
Considerations for policy shapers and makers
The second level is that of policy advice. I must admit that when I first saw the table of contents and noticed that the final chapter addressed conclusions and recommendations I had concerns about the substance of the book. It is one thing to undertake solid empirical research; it is quite a different thing to lay out arguments (and thereby present data selectively) in support of policy recommendations. Too often such treatises display superior argumentative logic, all the while lacking foundation in factual reality. Or they may sink to the level of wholly speculative ‘may and might’ analyses spinning hypothetical, often worst-case scenarios whose projected consequences then inform policy recommendations.
To my relief Crowley avoids this trap because a solid analytical framework structures his analysis (see the third level below). Thus after having laid out the technical aspects and national programmes of crowd control agents, he moves to the regulatory regimes. Again he proceeds systematically. In what amounts to over half of the book, he devotes a chapter each to arms control and disarmament law, international humanitarian law, human rights law, international criminal law, technology transfer control regimes, and UN drug control conventions. For each of the treaties, regulations, policy declarations, or informal arrangements (such as the Australia Group or Wassenaar Arrangement) Crowley presents the reader with a summary of the objectives and tools, an analysis of their implementation, and options for amelioration.
In the penultimate chapter he examines how civil society can contribute to the strengthening and implementation of the respective regimes. It comprises a comprehensive overview of ideas that have been explored in the fields of chemical and biological weapon control over the past decade and a half, as well as various initiatives whose primary concern have been the humanitarian and human rights consequences of the application of crowd control agents. In the process the author comments on such activities and suggests further options and improvements.
Crowley’s recommendations are rooted in this detailed analysis. He identifies areas of action where governments (and by extension, intergovernmental organisations) have to assume their responsibilities with regard to the strengthening and implementation of the international rules. He also considers how civil society constituencies can contribute to the strengthening of existing tools (e.g., through the development of ethical and professional codes of conduct, educational initiatives, etc.) or develop independent initiatives to track developments (e.g., open source monitoring of the use of crowd control agents or the political and technological imperatives for their further development and international commercialisation) with a view of holding policy makers accountable.
The final chapter thus comprises succinct summaries of the issues treated in the preceding chapters and related policy recommendations.
As already indicated in the introduction, to me the best aspect of the book is the analytical framework. Crowley calls it ‘holistic arms control’ (HAC). It concentrates on existing arms control and disarmament measures, but seeks to expand on the numbers and types of regulatory measures and broaden the range of possible stakeholders.
The ambition is not small: he must weave a net whose meshes are sufficiently wide to catch all relevant data, while small enough to filter out irrelevant elements. Moreover, his construct is multidimensional, capturing the technologies together with national and human security concerns of inappropriate use, all relevant international legal regimes and other types of regulation together with the relative strengths and weaknesses, and possible strategies to reinforce all barriers against misuse of crowd control chemicals.
He deconstructs this ambition in the opening chapter and in the process outlines a step by step methodology that will form the backbone for the whole book. Cowley’s rigid adherence to the model contributes significantly to the readability of his analysis: throughout the reader remains aware of the stage of analysis and when particular questions are likely to be addressed. At the same time, he leaves the reader with a strong sense of comprehensiveness by bringing in many elements that one might not immediately consider when touching upon the subject of incapacitating and riot control agents. His discussion of the 1971 UN Convention on Psychotropic Substances is but one example.
A theoretical knot
However, the HAC framework is not merely analytical, it is also aspirational. It carries elements of theory formation that offer the perspective of substantive debates on the purpose of disarmament in fast changing times. As the author states (p.4):
Recognizing that reliance upon a single disarmament or arms control agreement alone would not guarantee success, scholars have explored a number of concepts, seeking to broaden the range of possible regulatory mechanisms.
His analysis is therefore also aspirational:
Although the proposed HAC analytical framework concentrates upon existing arms control and disarmament measures, it attempts to widen the range of applicable mechanisms for regulation, and also the nature of the actors involved in such regulatory measures.
Consequently, HAC can be thought of as a framework for analysis to aid the development of a comprehensive, layered and flexible approach to arms control […]
Left unsaid is the central question: what is the core purpose of disarmament (as embedded in the Biological and Toxin Weapons Convention (BTWC) and the CWC, two key pillars of the regime against the misuse of incapacitating or riot control agents)? Furthermore, how do treaty regimes evolve in the light of technological, political and social changes over the years since their adoption and entry into force?
Humanitarian considerations have over the past two decades taken up a prominent place in the disarmament and arms control discourses. This means that today a different reference framework for judging effectiveness of a convention exists than the one originally intended: the focus of the public debate has shifted from the weapon technology (which must be eliminated) to the consequences of their use under a variety of circumstances on individuals and communities, which in turn has amplified calls to hold those responsible for violations accountable under national and international criminal law. That conflict of purpose is on clear display in the Syrian civil war: many people do not understand why the international community can invest resources in eliminating Syria’s chemical warfare capacity, but does not want to intervene to stop the slaughter of civilians.
The issue really becomes interesting when two humanitarian considerations intersect at a given decision-making moment in a disarmament setting, and a choice has to be made. Crowley points to such a moment during the 3rd CWC Review Conference in April 2013 (pp. 130–31), however without realising the underlying conflict (of conscience) that led to the item of incapacitating agents being dropped form the final document. The debate occurred when the number of reported chemical weapon (CW) incidents in the Syrian civil war was rising fast, and only a few weeks after the UN Secretary-General established a mission to investigate allegations of CW use. Including a condemnation of the escalating chemical warfare crisis proved highly controversial. Compromise was possible on severely weakened language only, which was totally unacceptable to the Western Group and Other States (WEOG). The final document was in the balance. Given that Poland was chairing the review conference, failure was not an option for the European Union members.
One WEOG ambassador was unable to get updated guidance on compromise language on the questions of incapacitants and Syria from his capital, and therefore had to decide under his personal responsibility (all the while bearing in mind that the successful outcome of the review conference hung in the balance). He opted to go with the compromise language on Syria and (in consultation with the original sponsor, Switzerland) drop references to incapacitants, a key consideration being that the issue could be taken up at a later date. Does such a decision make the CWC less effective? The consensus language in the final document would ultimately form a not insignificant foundation for subsequent action by the OPCW following the sarin attacks in the district of Ghouta less than four months later, and Syria’s accession to the CWC and subsequent disarmament. Outcomes at meetings can result from complex decision processes when different interests conflict with each other and priorities (often in function of developments at the time) need to be established.
So, I raise the question whether the global community is best served by finding ways to ameliorate core instruments or by broadening the range of tools in order to capture a particular issue of interest? I have no immediate answer because, as the book describes, science and technology and their application in various circumstances may evolve much faster than the international community can regulate them or update existing treaty regimes. Nevertheless, I do have the concern that multiplication of treaties and other regulatory instruments lead to different lists of states participating in each one of them and different levels of compliance and enforceability. That could lead to a cacophony of expectations based on different requirements and interpretations of obligations.
This final reflection is not a criticism of Chemical Control. The question touches upon theories of regime formation and international law and goes beyond the purpose of Michael Crowley’s book. However, it is a matter I definitely wish to engage him on. I can only commend him for offering a solid framework for structuring that particular debate on the future of disarmament and arms control and identifying the fundamental assumptions underlying both concepts.
[Cross-posted from The Trench]
[Cross-posted from The Trench.]
On 29 October, the Technical Secretariat of the Organisation for the Prohibition of Chemical Weapons (OPCW) circulated three reports on investigations of alleged chemical weapons (CW) use in Syria. On 5 November Reuters published some details from the one addressing the alleged use of sulphur mustard agent in Marea, a town to the north of Aleppo, on 21 August. The two other reports address a series of incidents between 15 December 2014 and 15 June 2015 at the request of the Syrian government and between 16 March and 20 May 2015 in the Idlib Governorate documented by a variety of non-governmental sources.
For the purpose of clarity, the OPCW maintains a single Fact-Finding Mission (FFM), which has so far produced six reports. Under the FFM, the OPCW may deploy different teams to different locations.
The most recent reports will be released as part of the monthly OPCW reports on Syria to the UN Security Council, presumbly at the end of this month following the special session of the Executive Council on 23 November called to consider the findings.
Incidents in Idlib Governorate, March – May 2015
The Idlib Governorate lies to the south-west of Alleppo. During the spring of 2015 the international press and social media reported a string of incidents suggesting the use of chlorine as a weapon.
This team of the Fact-Finding Mission received its mandate to investigate incidents involving the use of toxicants as a weapon based on open-source media, other sources of information and materials obtained from non-governmental organisations. The investigation could not take place under optimal conditions, because the OPCW inspectors were unable to visit the sites of alleged incidents shortly after their occurrence, take their own samples or review the records onsite. Instead they based themselves on interviews and supplementary materials submitted during the interview process. They were nevertheless able to conclude:
In itself, no one source of information or evidence would lend particularly strong weighting as to whether there was an event that had used a toxic chemical as a weapon. However, taken in their entirety, sufficient facts were collected to conclude that incidents in the Syrian Arab Republic likely involved the use of a toxic chemical as a weapon. There is insufficient evidence to come to any firm conclusions as to the identification of the chemical, although there are factors indicating that the chemical probably contained the element chlorine.
The report documents 17 incidents in 6 locations between 16 March and 20 May 2015. They were responsible for six fatalities.
First depiction of a chemical barrel bomb dropped from helicopters
The report also included a depiction of a so-called barrel bomb, based on the various testimonials and collection of bomb fragments. It notes that the design of the improvised weapon underwent an evolution of their manufacture, probably driven by trial and error. However, only a singly type appears to have been used in the Idlib Governorate between March and May 2015.
The configuration consists of 9 gas cylinders (green) presumably filled with poisonous chemicals. The report suggests that they may have been filled with a chlorine or chloride containing compound. The flasks with potassium permanganate (pink) would then have been used to oxidise the chlorine containing compound, resulting in Cl2. The potassium permanganate may be responsible for the purple–red colour occasionally seen in pictures and video footage of impact sites.
This depiction definitely explains how high concentrations of chlorine were achieved locally, earlier assessments of improbability having been based on the assumption of the dropping or firing of single gas cilinders fitted with a light detonator. Interestingly, the barrel bomb configuration would not have contradicted this assumption, given the individual rigging of gas cylinders (see Brown Moses’ speculation on this in 2014) and the focus of outside observers on those cylinders. To the best of my recollection, only a single report on developments in Syria in 2014 prepared by Human Rights Watch made a passing reference to the possibility: ‘evidence strongly suggests that Syrian government helicopters dropped barrel bombs embedded with cylinders of chlorine gas on three towns in Northern Syria in mid-April‘.
On the value of the evidence
As usual and for good reason, the reports by the Technical Secretariat remain careful in their conclusions. Determination of reponsibility for the violation of the Chemical Weapons Convention and other legal instruments banning chemical warfare is pre-eminently a political judgement. As noted earlier, the Executive Council will consider these findings (as well as those in the other two reports) on 23 November, after which they will be transferred to the UN Security Council. They will also inform the Joint Investigative Mission established by the UNSC in August, whose principal task it is to determine responsibility for chemical warfare in the Syrian civil war.
Meanwhile, the investigators assess their findings concerning the delivery system as follows:
The description of the alleged chemical weapon and its deployment derives from several inputs, as previously described. The features of the improvised chemical bomb are consistent with its being designed for deployment from a height. As most incidents happened during darkness, it is not surprising that no interviewees claimed to have seen the means of deployment. The deformation of the remnants is consistent with mechanical impact and explosive rupture, rather than explosion causing deflagration. Witnesses also reported a lesser explosive sound than for other more conventional types of bombs. Moreover, casualties’ signs and symptoms do not include physical injuries that would be expected from the deployment of an explosive device. The craters which have been claimed to have been caused by the device are also consistent with its being dropped from a height with lesser explosive power. It is therefore reasonable to assume that the devices were not designed to cause mechanical injury through explosive force but rather to rupture and release their contents.
[Cross-posted from The Trench]
The Organisation for the Prohibition of Chemical Weapons (OPCW) has just announced the accession of Angola to the Chemical Weapons Convention (CWC). The country deposited its instrument of accession with the UN Secretary-General on 16 September, which means that it will become a party to the CWC 30 days later, that is, 16 October.
Angola will thus be the 192nd state to join the OPCW. No other treaty limiting possession or use of a particular type of weaponry can boast that many parties. The Non-Proliferation Treaty (NPT) has 191; the Biological and Toxin Weapons Convention (BTWC) 173.
Middle East – The hard nut
According to the OPCW statement, only four states now remain outside the treaty: Egypt, Israel, North Korea and South Sudan.
North Korea presents the simplest problem. There is no diplomatic interaction at all, so expectations that Pyongyang will join the CWC any time soon are as good as zero.
Some optimism exists about South Sudan. Efforts are underway to secure succession (Sudan has been a party since June 1999) as part of a broader package that includes offers of assistance to rebuild the war-torn state. Having said that, the date of OPCW membership keeps getting pushed back into a less definite future in parallel with the floundering efforts to bring peace to the country.
Egypt remains of course obsessed by Israel’s nuclear weapons, while Israel continues to fail to see any benefits in collective security in its pursuit of a peace-first policy in a region that seems to be descending ever further into violence and instability. The fact of the matter is that neither country would lose an iota of national security by joining the CWC; quite on the contrary. Symbolism can be a powerful demotivator …
And what about Palestine?
Among the NPT’s membership is the State of Palestine, which acceded to the treaty as the 191st party in February 2015. It deposited its instrument of accession in London and Moscow (but not Washington). On 10 September the UN General Assembly voted to fly the Palestinian flag outside the UN building—together with that of another non-member observer state maintaining a permanent observer mission at the UN Headquarters, the Holy See.
OPCW statements do not list this Palestine in its statements on universality. It should be noted that UN membership is not a precondition for becoming a party to the CWC. Article XX speaks about accession of ‘any state’; Article XXIII designates the UN Secretary-General as depository and provides no grounds for rejecting any state. The Vatican joined the CWC in June 1999.
As far as I know, Palestinian authorities have not made any statements about acceding to the CWC. It may be that some low-level contacts are taking place between the OPCW and the Palestinian Mission to the EU in Brussels, but if this is the case, it is definitely not yet causing any ripples.
Is there an abundance of caution as a consequence of US laws that defund UN agencies that accept Palestine as a full member, thereby seemingly legitimising its quest for full statehood? While it is true the the USA is the single biggest contributor to the OPCW budget, reality is that (1) the OPCW is not a UN agency, and (2) as noted above, the CWC is not an invitation-only club. Unlike, for example, the UN Educational, Scientific and Cultural Organization (UNESCO), OPCW members do not get to vote on the accession of another state.
So, for the OPCW, four or five more countries before full universality, that’s the question!
[Cross-posted from The Trench.]
Today, 17 June, the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare celebrates its 90th anniversary. Short as the document is, it laid the foundations for the 1972 Biological and Toxin Weapons Convention (BTWC) and the 1993 Chemical Weapons Convention (CWC). How critical that document was to disarmament—the total elimination of a given weapon category—the global community can only appreciate through the growing frustration with the lack of progress in the elimination of nuclear weapons. As the negotiators of the Geneva Protocol came to understand in 1925, without a global ban on use, no other weapon-related activities could legally be curtailed.
This three-part analysis retraces the origins of the Geneva Protocol and identifies its implications for disarmament.
Part 1 focusses on the discovery of the dual-use dilemma posed by toxic chemicals and the conclusions the negotiators drew from their new insights.
Part 2 analyses how the negotiators resolved the dual-use dilemma in meetings preparing the disarmament conference of the 1930s, and in the process came up with solutions that make up the pillars of disarmament today.
Part 3 reflects on how the Geneva Protocol experience may point to a tangible nuclear disarmament strategy in view of the failure of the 2015 review conference of the Nuclear Non-Proliferation Treaty (NPT) and the difficulties in reaching a satisfactory agreement with Iran to shed more transparency on its nuclear activities.