Regulating Chemical Weapons Auckland Law Professor Treasa Describes the Pitfalls & Hopes of Enforcing the Ban on Chemical Weapons

Melissa Peach
Volume 3, Issue 8, (Originally Published on Monday 29th April)
Last Monday, Associate Professor Treasa Dunworth from Auckland Law School spoke about toxic chemicals as weapons in law enforcement.
 
Dunworth has a PhD on the human dimension of arms control and disarmament and has researched the technical aspects of weapons systems while on the Preparatory Commission of the Prevention of Chemical Weapons in Geneva.
 
Dunworth began her presentation with a discussion of the 2002 Moscow Theatre Siege, in which 40 rebels took 800 hostages and booby trapped the theatre to further their political aims for Chechen freedom from Russia. After three days, Russian forces pumped fentanyl, an opiate-like morphine usually given to cancer patients, into the theatre. As a result, all of the rebels were killed, as well as 129 hostages – a 15 per cent fatality rate.
 
For Dunworth, this example posed the question of whether the use of chemical weapons was a paradigm for law enforcement or counterterrorism. A non-lethality issue was also raised: how many would have died but for the actions of the Russian forces? The 15 per cent fatality rate here was still less than the 23 per cent fatality rate for Aum Shinrikyo’s 1995 sarin gas attack on the Tokyo subway.
 
To describe these events in terms of lethality by saying that this event was less lethal than others is troubling, Dunworth articulated. She described a blurring of the boundary of law enforcement and the legal system in this sense; in terms of a humanitarian impulse aspect, this is troubling. But at the same time, the humanitarianimpulse doesn’t give us answers as to what we should do.
 
Dunworth addressed the Chemical Weapons Convention (CWC) and the number of ambiguities within it. She emphasized that the taboo against using chemical weapons should make us cautious in interpreting the treaty, and examined the humanitarian dimension of disarmament. A humanitarian discourse doesn’t work in disarmament because of its emphasis on human security as opposed to strategic security and the way that civil society participates in the disarmament discussion.
 
The CWC’s purpose is one of disarmament and nonproliferation, and an absolute prohibition on the use of chemical weapons. In defining what a chemical weapon is, art 11(1)(a) of the CWC states that they are “toxic chemicals and their precursors, except where intended for purposes not prohibited”. Toxic chemicals are defined as any chemical which through its chemical action or life processes can cause death, temporary incapacitation or permanent harm to humans and animals.
 
Law enforcement, including domestic riot control purposes, is a purpose not prohibited. This was so that riot control agents, or “any chemical which can rapidly produce in humans sensory irritation or short term disability effects” (art 11.7), could be used to keep peace. It is not the case that chemicals are only for weapons purposes; there is a spectrum of chemicals ranging from most toxic and medium toxicity, to low risk.
 
The biggest source of debate is the question of degree of use, as under art 1.5, each state party cannot use riot control agents as a method of warfare. Under the CWC, examples such as Italy’s use of chemical warfare against Ethiopia and Iraq’s use of chemical weapons against Kurds in Halabja would have been banned, but the use of tear gas in the 2007 riots would have been an exception because of the domestic riot control use.
 
However, the distinction blurs in situations such as when the UK used tear gas in Northern Ireland in the 1970s, and whether or not UN troops can use chemical agents when they are deployed, and it matters more whether there was a law enforcement purpose in these instances.
 
This issue reflects the gaps in understanding the CWC. Because the CWC was concluded with so much ambiguity, it is difficult to define its terms. Prima facie, the CWC is on the permissive side and there is nothing that limits law enforcements to irritants. However, since the object of the Convention is prohibitory, great care needs to be taken with exceptions and to ensure that law enforcement only uses irritants.
 
The clear ambiguity in the CWC’s definition of chemical weapons tends to undermine the taboo of chemical weapons. The exception here is too big and needs to be read down, as is generally the rule of treaty interpretation. The Convention itself envisaged 10 years to destroy chemical agents, but this has proved to be difficult. Although it is an enforceable, verifiable treaty, the enforceability aspect is weak. While it looks like a heavyweight treaty, Dunworth argued, it relies on a taboo for the brunt of its force.
 
Thus, a restrictive view in interpretation favors humanitarians more. The Treaty excludes all chemical agents except for purposes not prohibited, but exceptions are corrosive. In looking at humanitarian discourse, Dunworth initially intended to use her thesis as a cautionary tale. By using the language of humanitarianism in saying that at least it isn’t bad as some other options, the treaty is then presented as an obstacle. In the long term, if states start using these incapacitants notwithstanding the taboo of chemical weapons, it opens up an exception in the treaty which could end up being a slippery slope.
 
Melissa Peach