[Cross-posted from The Trench]
In my blog posting of 16 January entitled ‘Palestine: From a “will-be” party to the CWC to a “would-have-been”?’, I described how Palestine submitted its instrument of accession to the Chemical Weapons Convention (CWC) with the UN Secretary-General on 29 December, only to withdraw it on 8 January. Since having achieved the status of ‘UN non-member observer state’ in 2012, Palestine has joined over 50 international agreements, including the Biological and Toxin Weapons Convention, to which it became formally a party on 16 January. The CWC is the only treaty on which it reversed its position.
Retracting an instrument of accession is a highly unusual and the motivation behind the step was unclear. Since the blog posting, still nobody is able to offer even a beginning of an explanation for the step.
A rare step nonetheless
Prof. Masahiko Asada of the Graduate School of Law at Kyoto University responded to the blog posting by pointing out that there are in fact precedents involving the withdrawal of an instrument of ratification before the entry into force of a treaty. He specifically pointed to the 1995 UN Fish Stocks Agreement. Italy and Luxembourg ratified it in 1999 and 2000 respectively. Both countries withdrew their instruments ratification and re-ratified it in 2003 along with other European Union (then still the European Communities) members with declarations.
He also referred me to a publication prepared by the Treaty Section of the UN Office of Legal Affairs, Summary of Practice of the Secretary-General As Depositary of Multilateral Treaties. Section H (p. 47) describes circumstances and gives more examples:
157. A State that had deposited an instrument of ratification or of a similar nature may subsequently decide to withdraw its instrument. The Vienna Conference on the Law of Treaties did not address this question. The practice of the Secretary-General has been to allow such a withdrawal until the entry into force of the treaty, on the understanding that, until that time, States are not definitely bound by the treaty.
158. In some cases, States that had thus withdrawn an instrument subsequently deposited a new instrument, but this time with reservations. In this manner, they were in compliance with the rule according to which reservations must be made at the time of deposit of the instrument (see para. 204). Thus, for example, the Government of Greece, which on 6 December 1950 had deposited an instrument of acceptance of the Convention on the Intergovernmental Maritime Organization of 6 March 1948, withdrew that instrument on 26 March 1952 (before the entry into force of the Convention, which took place on 17 March 1958), but reaccepted the Convention on 31 December 1958, with a reservation. And the Government of Spain, which on 29 July 1958 had deposited an instrument of accession to the Customs Convention on the Temporary Importation for Private Use of Aircraft and Pleasure Boats, and Protocol of Signature, signed at Geneva on 18 May 1956, withdrew the said instrument on 2 October 1958 (before the entry into force of the Convention, which took place on 1 January 1959) and then deposited a new instrument with a reservation.
So, while there have been a few withdrawals of instruments of ratification, countries seem to have taken this step (1) when the treaty had not yet entered into force for anybody; and (2) possibly with the intention to re-ratify at a later stage but with the addition of reservations.
Palestine’s action does not seem to fit this practice.
First, none of the treaties in the examples concern international security or weapon control.
Second, Article XXII of the CWC stipulates that ‘The Articles of this Convention shall not be subject to reservations’. In other words, Palestine cannot retract its instrument of accession with a view of re-submitting it with a reservation. It could, however, express some reservations with respect to the annexes to the CWC provided these are not incompatible with the object and purpose of the convention.
Third, the UN Office of Legal Affairs also noted that ‘the withdrawal of instruments is accepted until the entry into force of the corresponding treaty’ (para. 159). The CWC has now been in force for over 20 years.
The UN Office of Legal Affairs primarily assessed the implications of such withdrawal on when a treaty takes legal effect. It did not delve into the question of withdrawal of accession. Yet, it seems to have left the door open for scenarios involving accession or succession (implying that the treaty would already have entered into force) when it referred to ‘instrument of ratification or of a similar nature‘. However, the lack of concrete examples may suggest that UN Secretary-General Guterres’ acceptance of the Palestinian retraction may yet have set a precedent in international legal history.
Answers? Questions! Questions? Answers!
Literally nobody has an explanation for Palestine’s withdrawal of its instrument of accession or an idea what the Palestinian Authority’s next move might be.
Senior staff within the Technical Secretariat of the Organisation for the Prohibition of Chemical Weapons (OPCW) were as confounded as anyone else. This puts to rest my benign suggestion that the OPCW might have alerted the UN Secretary-General to possible complications of Palestine joining the CWC without any formal preparations. No such steps or similar types of communication were undertaken.
Representatives from CWC states parties expressed similar surprise. One rumour circulating in The Hague suggested that Egypt had persuaded the Palestinian Authority in Ramallah to withdraw from the treaty. However, as one ambassador from a Western country told me, ‘this is all what it is, a rumour’. Some persons pointed to the prospect of US financial retaliation (which I explained, but discounted in the original blog posting), but nobody heard an American official even suggest such a possibility.
A former Arab ambassador reached out to colleagues and friends in the Middle East. He replied that nobody was able to provide answers to my questions. Palestinians reached out to the Authority and Palestinian diplomats in disarmament capitals, but again the answer was that ‘no one either knows or wants to talk about it’.
No explanation as to why Palestine withdrew its instrument of accession to the CWC is forthcoming at present. The questions raised in my initial blog posting remain open. Particularly vexing is: why the CWC, and not also one of the 54 other treaties that Palestine has joined over the past three years?
I would like to thank Prof. Masahiko Asada for having pointed me to the broader context of withdrawal of instruments of ratification. My great appreciation also goes to research colleagues and present and former diplomats who brought me in contact with relevant personalities and/or have tried to receive answers from relevant policy makers and implementers.
[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.