With the recent international attention to riot control agents (RCA) people have raised the question how their use against protesting civilians can be legal when the toxic agents are internationally banned from battlefields.
Framed as such, the question is not entirely correct. In my previous blog posting I argued that outlawing RCAs for law enforcement and riot control based on the above reasoning may run into complications in the United States because the country still identifies operational military roles for irritants on the battlefield in contravention of the Chemical Weapons Convention.
This article sketches the convoluted history of harassing agents as a means of combat and a police tool. For hundreds of centuries until the late Middle Ages irritants were part of siege warfare. In the 19th century interest returned because of a new competition between defensive structures and breaching weaponry. Just like in earlier times, toxic fumes could drive defenders from their enclosed positions. The rise of chemistry introduced new compounds with the potential to clear occupants from fortifications.
Just before World War 1 French police had to confront a new form of gangsterism. Bandits used the most advanced weaponry and tools not yet available to police officers, they barricaded themselves in buildings, and resisted arrest until their last bullet. To reduce bloodshed, the police investigated alternatives to dislodge the new creed of brigands.
‘Tear-gas’ may come to symbolise the Trump Administration’s heavy-handed response to the popular reaction against the killing of George Floyd, a middle-aged black man, by a white police officer. The President’s rolling thunder of insensitive, divisive tweets extolling law and order and deriding the legitimate demands by the Black Lives Matter movement has contributed to irresponsible use of force against essentially peaceful protesters, onlookers, and members of the press. Police brutality combined with widespread lack of accountability – unless a person gets killed or an incident is captured on media – has led to multiple types of excesses. When President Trump sallied out of the fenced White House for a photo session in front of the nearby St John’s Episcopal Church, police and National Guard units cleared his path by tear-gassing protesters. Moments earlier he had threatened state governors with the deployment of the US military unless they use the National Guard in sufficient numbers to ‘dominate the streets’.
Over the past weeks many commentators have zoomed in on riot control agents (RCAs), arguing that lachrymators have been internationally banned for war but not for quenching public disturbances or riots. Fact-checker sections in newspapers generally confirm the assertion citing relevant provisions in the Chemical Weapons Convention (CWC). Prominent politicians, city councils, civil rights leaders and many other human rights advocates in the United States are now calling to prohibit RCAs for crowd control purposes.
While valid for the international community, is the assertion that RCAs cannot be used in war correct for the United States?
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.
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]
In the Greater Manchester area a 16-year old boy stands trial for having tried to buy 10 milligrams of abrin on the dark web. Abrin is a toxin found in the seeds of Abrus precatorius, otherwise known as jequirity or rosary pea.
UK authorities arrested him in February and have charged him under the Biological Weapons Act 1974 and Criminal Attempts Act 1981. In particular, the charge refers to the General Purpose Criterion (GPC) as framed in Article I of the Biological and Toxin Weapons Convention (BTWC) and transposed into British criminal law. As reported in The Guardian on 19 February:
The full charge against the boy is that between 24 December 2014 and 16 February 2015 he attempted to acquire a biological toxin or agent of a type and in a quantity that has no justification or prophylactic, protective or other peaceful purpose, namely Abrin.
The maximum sentence for the offence is life imprisonment.
During the trial the boy’s defence argued that he sought to buy the toxin to commit suicide. Under those circumstances, possession of abrin could technically have been for ‘peaceful purposes’, so the defence argued to have the charges dropped.
Judge Khalid Jamil Qureshi dismissed the claim:
The question is whether suicide is peaceful. Suicide, by definition, is an act of violence, so the defence will not be applicable.
By which he opposes ‘peaceful’ to ‘violence’, rather than the idea of ‘war’ or ‘armed conflict’ more prevalent in the disarmament communities and intended by the BTWC negotiators.
This is the second recent case—the other one was Bond versus the United States, which went twice to the US Supreme Court—in which a domestic criminal trial causes a judge to interpret key terms in a national law that originated with a disarmament treaty. Especially since there has been a growing debate on the understanding of ‘compliance’ with disarmament and arms control treaties and an emphasis on national implementation of such treaties to counter terrorist threats, these domestic court cases raise questions about how domestic judgements may begin to affect common understanding of treaty obligations and expectations. Depending on the legal system, judgements may be precedent-setting. However, whichever may be the case, the interpretations apply to the country in question only. Divergencies about compliance expectations over time are therefore not beyond imagination.
The law enforcement debate
One area where domestic legal interpretation of concepts derived from multilateral disarmament treaties may have profound impact is that of law enforcement. The BTWC and the Chemical Weapons Convention (CWC) proscribe the use of infective agents, toxins and toxic chemicals as methods of warfare. The CWC, however, does not consider riot control agents, toxic chemicals that by definition cease to have an impact on the target as soon as exposure stops, to be chemical weapons if used for law enforcement purposes (including domestic riot control). The BTWC contains no similar provision.
Last October I wrote a blog contribution on the use of pepper spray in new naval anti-piracy tactics. My main question then was how the authority for the release of the agent under the CWC could be determined. Under the proposed scenarios, nationals from different parties to the CWC operating outside the territory of their own country would likely be involved in any such chain of decisions. Moreover, private security companies might be in charge of safeguarding ships threatened by pirates. Some comments to the blog contribution (posted to Arms Control Law) pointed out that under different international treaties, including the Law of the Sea, authority to take action against pirates is clearer. So, the matter becomes an issue of fragmentation in international law.
In my subsidiary question I wondered whether the use of pepper spray (which involves a toxin) could fall under ‘other peaceful purposes’ in Article I of the BTWC. Indeed, the BTWC does not specifically list law enforcement as an authorised purpose. To the best of my knowledge, law enforcement has never been listed as an additional understanding of the rest category of ‘other peaceful purposes’. The issue is less clear and government officials tend to avoid answering that question.
However, in light of Judge Qureshi’s argument, the use of violence (rather than the application as a method of warfare) contradicts the ‘peaceful purpose’ criterion. So, applying a toxin to deny pirates access to a ship would amount to a violation of the BTWC. If this is the case, then what to think of the experiments in India to deploy drones armed with pepper spray for crowd control? Under the CWC, perhaps yes, but the BTWC?
Keep thinking. Keep thinking.
[Cross-posted from The Trench]
Yesterday the Smithsonian “Smartnews” site featured the article Robot Ships And Pepper Spray—the Latest in Pirate-Fighting Tech. According to the piece, UK researchers are actively looking into mobilising capsaicin – the active ingredient in pepper spray – to fend off pirate attacks at sea:
The age of naval battles between huge ships on the high seas seems to have passed into distant memory. Instead, some of the most devastating attacks on giant vessels in recent years have been executed by boats small enough to get through the larger ships’ defenses.
But now, governments around the world are working on technology designed to stop these attacks. In the U.K, researchers are working on a remote monitoring system—called the MATRiX system—that resituates the traditional responsibilities of a lookout to land-bound control rooms. The system has a connected network of anti-pirate deterrents attached to the outside of the ship. If a threat is detected, the deterrant [sic] system releases two relatively simple tools—nets that will catch in the propellers of attacking boats and a fog of capsaicin, the active ingredient in pepper spray (and bear repellent).
My question is: how does that fit with international law?
It stretches the understanding of non-prohibited purposes as defined in Article II, §9(d) of the Chemical Weapons Convention (CWC), which allows the use of riot control agents for law enforcement purposes, including domestic riot control. The concept of “law enforcement” is vague in the CWC and efforts are underway to clarify the notion in the context of various research and development activities concerning incapacitants.
In this particular case, however, it seems that not even law enforcement officials would the responsible for the decision to release the capsaicin against pirates (unless they are the ones sitting in “land-bound control rooms”). The afore-mentioned article suggests that the device would be deployed by the merchant ship under attack. Even if law enforcement officials would be at some land-based centre, would they be able to override the captain’s authority or would they just give the captain the green light to activate the system when needed? If the captain must call in authorisation from land, what country’s jurisdiction would come into play? The country under whose flag the ship is sailing? The country on whose territory the control rooms are located? The country whose nationality the law enforcement officials possess?
In light of the ongoing privatisation of security (who actually uses force to defend the ships against attacks? who sits in the land-based control rooms?), the blurring of boundaries between armed conflict and counter-terrorism / -crime operations, and the banalisation of riot control agents, it would appear that legal clarity about this new contraption should be established by the relevant national authorities and the international community (represented by the Organisation for the Prohibition of Chemical Weapons—OPCW).
Having said that, capsaicin is a toxin—a poison produced by a living organism. As such the legitimacy of its application is also covered by the Biological and Toxin Weapons Convention (BTWC). That treaty does not distinguish between whether the compound was derived from the chili pepper or produced synthetically. More importantly, however, the BTWC does not make an exception for law enforcement purposes. This leaves the question as to whether “law enforcement” can be considered to be one of the “other peaceful purposes” in Article I.
As it stands now, nobody has really been able to give me a sound explanation why the provisions of the CWC should supersede those of the BTWC.
I am open to good legal arguments.
I am not the only person who is concerned by the banalisation of tear gas as a riot control agent. Over the past few years, the intensity with which such agents have been used has increased markedly, to the point that whole sections of cities now routinely become saturated with the toxic chemicals. In particular Michael Crowley of Bradford University’s Non-Lethal Weapons Project has published studies on the fast technological development and growing global markets of riot control agents and their delivery systems: one in collaboration with the Omega Research Foundation, and one, co-authored with Dana Perkins, then expert of the 1540 Committee, for the Biochemical Security 2030 Project, University of Bath. Likewise, the Physicians for Human Rights issued a report in 2012 on the Bahrain government’s indiscriminate use of tear gas, and in 2013 another one on tear gas excesses in Turkey.
The recent massive use of tear gas by a highly militarised local police force to quell riots in Ferguson, Missouri, has drawn renewed attention to a weapon that the Chemical Weapons Convention bans as a tool of warfare.
Anna Feigenbaum has just published a historical overview of tear gas in The Atlantic, starting with the fist use of a chemical weapon by the French in World War 1 exactly 100 years ago this month.
Perhaps most striking is her compilation and mapping of global tear gas use during 2013 (my screenshot):
A PDF printout of the incidents she has listed runs for 19 pages.
Alas, if a riot control agent is used as a tool for law enforcement or domestic riot control purposes, then the Chemical Weapons Convention does not consider it as a chemical weapon and therefore falls outside its scope of application.
[Cross-posted from The Trench]