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Abstract
This article explores the implications for human rights and human security arising from the development and use of weapons employing certain toxic chemicals, termed incapacitating chemical agents (ICAs), ostensibly intended for law enforcement operations. Publicly accessible information clearly indicates that China, Israel and the Russian Federation have acquired or developed ICA weapons, and that such weapons are either in the possession, or have been used by law enforcement or security services, of those countries since the coming into force of the Chemical Weapons Convention (CWC) in 1997. Although there is evidence of potentially applicable dual-use research in additional states, the full nature and purpose of such research, in certain states, is unclear as are the intended applications to which it will be put. Following a survey of state practice, existing obligations upon states derived from relevant international law are examined, specifically the CWC and applicable human rights instruments. Whilst existing international law certainly severely constrains and arguably prohibits the development, acquisition and use of such weapons for law enforcement, there are areas of contested interpretation, which need to be urgently addressed by the international community.
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes on contributors
Michael Crowley is Project Coordinator of the Bradford Non-Lethal Weapons Research Project, and is also a Senior Research Associate with the Omega Research Foundation. He has worked for nearly 20 years on arms control, security and human rights issues, including as Executive Director of the Verification Research, Training and Information Centre (VERTIC).
Malcolm Dando is Professor of International Security at the Department of Peace Studies, University of Bradford, and co-director of its project on strengthening the Biological and Toxin Weapons Convention. He has published widely on biological warfare, bio-terrorism, non-lethal weapons and related international security issues. He is a fellow of the Society of Biology.
Notes
1 Organisation for the Prohibition of Chemical Weapons (OPCW), Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (Chemical Weapons Convention or CWC), 1993.
2 See for example: NATO Glossary of Terms and Definitions (English and French), NATO Document AAP-6(2012), 2012, 2-I-2.
3 See for example: Spiez Laboratory, Technical Workshop on Incapacitating Chemical Agents, Spiez, Switzerland, 8–9 September 2011, 2012; International Committee of the Red Cross (ICRC), ‘Toxic Chemicals as Weapons for Law Enforcement: A Threat to Life and International Law?', ICRC Synthesis Paper, September 2012; ICRC, Expert Meeting, ‘“Incapacitating Chemical Agents”: Law Enforcement, Human Rights and Policy Perspectives', Switzerland, 24–26 April 2012, January 2013; OPCW, Conference of the States Parties, ‘Scientific Advisory Board Report on Developments in Science and Technology for the Third Review Conference', RC-3/DG.1, 29 October 2012.
4 Royal Society, ‘Brain Waves Module 3: Neuroscience, Conflict and Security', RS Policy Document 06/11, February 2012, 44–5. See also: Royal Society, ‘The Chemical Weapons Convention and Convergent Trends in Science and Technology’, RS Seminar held at the Organisation for the Prohibition of Chemical Weapons (OPCW), 18 February 2013, 2.
5 ICA weapons have also been called advanced riot control agents, biochemical weapons, calmatives, immobilising agents, knock-out gas and pharmacological weapons.
6 See for example, OPCW, ‘Scientific Advisory Board Report on Developments in Science and Technology for the Third Review Conference'; Royal Society, ‘Brain Waves Module 3', 44; Royal Society, ‘The Chemical Weapons Convention and Convergent Trends in Science and Technology’, 2.
7 Riot control agents are specifically defined under the Chemical Weapons Convention as ‘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 (see OPCW, Chemical Weapons Convention, Article II.7).
8 See, for example, G. Fenton, ‘Current and Prospective Military and Law Enforcement Use of Chemical Agents for Incapacitation', in Incapacitating Biochemical Weapons, ed. A. Pearson, M. Chevrier, and M. Wheelis (Lanham, MD: Lexington Books, 2007), 103–23; G. Whitbred, ‘Offensive Use of Chemical Technologies by US Special Operations Forces in the Global War on Terrorism', Maxwell Paper Number 37, Maxwell Air Force Base, Air University Press, Alabama, July 2006.
9 OPCW, Director General, ‘Report of the [Ekeus] Advisory Panel on Future Priorities of the Organisation for the Prohibition of Chemical Weapons', S/951/2011, 25 July 2011, para. 13.
10 British Medical Association, The Use of Drugs as Weapons: The Concerns and Responsibilities of Healthcare Professionals (London: BMA, 2007), 1.
11 J. Perry Robinson, ‘Categories of Challenge Now Facing the Chemical Weapons Convention', 52nd Pugwash CBW Workshop, ‘10 Years of the OPCW: Taking Stock and Looking Forward', Noordwijk, The Netherlands, 17–18 March 2007.
12 A. Pearson, ‘Incapacitating Biochemical Weapons: Science, Technology, and Policy for the 21st Century', Nonproliferation Review 13, no. 2 (2006): 172; M. Wheelis and M. Dando, ‘Neurobiology: A Case Study of the Imminent Militarization of Biology', International Review of the Red Cross 87, no. 859 (2005): 564.
13 M. Crowley, Dangerous Ambiguities: Regulation of Riot Control Agents and Incapacitants under the Chemical Weapons Convention (Bradford: Bradford University, 2009), 61–2.
14 British Medical Association, The Use of Drugs as Weapons, 1; Wheelis and Dando, ‘Neurobiology'.
15 Perry Robinson, ‘Categories of Challenge Now Facing the Chemical Weapons Convention’, 19.
16 ICRC, ‘Toxic Chemicals as Weapons for Law Enforcement’, 5.
17 Further information concerning historical ICA weapons research and development activities conducted by a number of these states is included in the country case studies detailed in this report. See also: J. Perry Robinson, ‘Incapacitating Chemical Agents in Context: An Historical Overview of States' Policy', in ICRC, ‘Incapacitating Chemical Agents', 89–96; Royal Society, ‘Brain Waves Module 3’, 10–13; Crowley, Dangerous Ambiguities; M. Dando and M. Furmanski, ‘Midspectrum Incapacitant Programs', in Deadly Cultures: Biological Weapons Since 1945, ed. M. Wheelis, L. Rózsa, and M. Dando (Cambridge, MA: Harvard University Press, 2006), 236–251.
18 R. Trapp, ‘“Incapacitating Chemical Agents”: Some Thoughts on Possible Strategies and Recommendations', in Expert Meeting: Incapacitating Chemical Agents: Implications for International Law, ed. ICRC (Switzerland, 24–26 March 2010, October 2010), 65.
19 National Research Council, ‘Emerging Cognitive Neuroscience and Related Technologies', 2008, http://www.nap.edu/openbook.php?record_id=12177 (accessed 18 January 2015).
20 Ibid.
21 Dual use is a concept that can be applied to the tangible and intangible features of a technology that enable it to be utilised for both hostile and peaceful ends with no, or only minor, modifications. The hostile use of a specific technology does not arise automatically from the inherent properties of that technology, but requires the active intervention of relevant actors. (For further discussion see: J. Molas-Gallart and J. Perry Robinson, ‘Assessment of Dual-use Technologies in the Context of European Security and Defence’ (Report for the Scientific and Technological Options Assessment (STOA), European Parliament, 1997); C. McLeash, ‘Reflecting On the Dual-Use Problem', in A Web of Prevention: Biological Weapons, Life Sciences, and the Governance of Research, ed. B. Rappert and C. McLeish (London: Routledge, 2007), 189–208.
22 For further information about the survey methodology and the survey findings incorporating detailed country case studies see: M. Crowley and M. Dando, Down the Slippery Slope? A Study of Contemporary Dual-Use Research Potentially Applicable to Incapacitating Agent Weapons, Biochemical Security 2030 Project/Bradford Non-Lethal Weapons Research Project, October 2014.
23 Security, Anti-Riot Weapons and Ammunition brochure, China North Industries Corporation (NORINCO), undated, brochure distributed at MILIPOL security exhibition, Paris, France, 1995, 11.
24 Ibid., 11.
25 State 9619 Plant company brochures, undated, distributed during Asia Pacific China Police Expo 2004 (23–26 June 2004), and Asia Pacific China Police Expo 2006 (24–27 May 2006) held at Beijing Exhibition Centre, Beijing, China.
26 G. Arthur, ‘New Equipment in Hong Kong', Defence Review Asia, 19 March 2012, 35, http://www.defencereviewasia.com/articles/153/NEW-EQUIPMENT-IN-HONG-KONG (accessed 18 January 2015).
27 See for example: L. Hess, J. Schreiberova, and J. Fusek, ‘Pharmacological Non-Lethal Weapons’ (Proceedings of the 3rd European Symposium on Non-Lethal Weapons, 10–12 May 2005, Ettlingen, Germany, European Working Group on Non-Lethal Weapons, Pfinztal: Fraunhofer ICT, V23); L. Hess, J. Schreiberova, and J. Fusek, ‘Ultrapotent Opioids as Non-Lethal Weapons' (paper given at meeting of NATO RTO TG-004, 23–26 May 2005, University of Defence, Faculty of Military Health Sciences, Hradec Kralove, Czech Republic); L. Hess, J. Schreiberová, J. Málek, M. Votava, and J. Fusek, ‘Drug-Induced Loss of Aggressiveness in the Macaque Rhesus’ (Proceedings of 4th European Symposium on Non-Lethal Weapons, 21–23 May 2007, Ettlingen, Germany, European Working Group on Non-Lethal Weapons, Pfinztal: Fraunhofer ICT, V15).
28 See for example: L. Hess, M. Votava, J. Schreiberová, J. Málek, M. Horáček, ‘Experience with a Naphthylmedetomidine-Ketamine-Hyaluronidase Combination in Inducing Immobilization in Anthropoid Apes', Journal of Medical Primatology 39, no. 3 (2010): 151–9; M. Votava, L. Hess, J. Schreiberová, J. Málek, K. Štein, ‘Short Term Pharmacological Immobilization in Macaque Monkeys', Veterinary Anaesthesia and Analgesia 38, no. 5 (2011): 490–3.
29 Czech Republic, National Authority of the CWC, Reply to the University of Bradford, Re: Request for Information Concerning Research Potentially Related to Incapacitating Chemical Agents, 14 July 2014, 4.
30 Ibid., 5.
31 See for example: P.K. Gupta, K. Ganesan, A. Pande, and R.C. Malhotra, ‘A Convenient One-Pot Synthesis of Fentanyl', Journal of Chemical Research (July 2005): 452–3; P.K. Gupta, K. Ganesan, P.K. Gutch, L. Manral, and D.K. Dubey, ‘Vapor Pressure and Enthalpy of Vaporization of Fentanyl', Journal of Chemical & Engineering Data 53, no. 3 (2008): 841–5; L. Manral, P.K. Gupta, M.V.S. Suryanarayana, K. Ganesan, and R.C. Malhotra, ‘Thermal Behaviour of Fentanyl and its Analogues during Flash Pyrolysis', Journal of Thermal Analysis and Calorimetry 96, no. 2 (2009): 531–4; L. Manral, N. Muniappan, P.K. Gupta, K. Ganesan, R.C. Malhotra, and R. Vijayaraghavan, ‘Effect of Exposure to Fentanyl Aerosol in Mice on Breathing Pattern and Respiratory Variables', Drug and Chemical Toxicology 32, no. 2 (2009): 108–13; P.K. Gupta, S.K. Yadav, Y.D. Bhutia, P. Singh, P. Rao, N.L. Gujar, K. Ganesan, and R. Bhattacharya, ‘Synthesis and Comparative Bioefficacy of N-(1-Phenethyl-4-Piperidinyl) Propionanilide (Fentanyl) and its 1-Substituted Analogs in Swiss Albino Mice', Medicinal Chemistry Research 22, no. 8 (2013): 3888–96.
32 Correspondence to Dr M. Crowley, BNLWRP, from R.K. Singh, Deputy Chief of Mission, Embassy of India, The Hague, Netherlands, forwarding the response of the Indian CWC National Authority, 22 July 2014.
33 Ibid.
34 See: OPCW, Chemical Weapons Convention, Article X(4), for relevant state reporting requirements.
35 See for example: T. Nezamoleslam, B. Javahery, N. Shakiba, and H. Fakhraian, ‘Structure-Activity Relationship, Atomic Electron Density and Conformational Investigation of Fentanyl Analogues', Journal of Passive Defence Science &Technology 1 (2010): 23–32; H. Kamranpey, ‘Aerosolisation of Medetomidine Hydrochloride as an Incapacitating Agent', Journal of Passive Defence Science & Technology 3 (2011): 51–6; M.S. Abazari, ‘Investigating the Phase Behavior of Medetomidine Hydrochloride, Ketamine Hydrochloride and Sevoflurane in the Presence of Ethanol and Propellant', Journal of Passive Defence Science & Technology 1 (2013): 65–70.
36 See for example: Nuclear Threat Initiative, Imam Hossein University (IHU), http://www.nti.org/facilities/251/ (accessed 9 May 2014). For more information see the university website http://www.ihu.ac.ir/?q=fa/node/1 (accessed 9 May 2014).
37 Correspondence to Dr M. Crowley, BNLWRP, from Dr H. Farajvand, Secretary of the National Authority for the CWC, Ministry of Foreign Affairs of the Islamic Republic of Iran, 15 July 2014.
38 M. Normack, A. Lindblad, A. Norqvist, B. Sandstrom, and L. Waldenstrom, Israel and WMD: Incentives and Capabilities (Swedish Defence Research Agency (FOI), December 2005), 41.
39 Ibid., 41.
40 Harvard Sussex Programme, News Chronology, CBW Conventions Bulletin, 38, December 1997, 29; ‘Physician Member of Hit Team, Paper Says', Canadian Medical Association Journal 157, no. 11 (1997): 1504; L. Beyer, ‘Don't Try This at Home – Or in Aman', Time 150, no. 17 (27 October 1997); L. Beyer, J. Hamad, and A. Klein, ‘What Went Wrong?; The Botched Hit on a Hamas Leader in Jordan is the Latest Big Problem for Israel's Benjamin Netanyahu', Time (27 October 1997); M. Ginsburg, ‘“Should There Be a need”: The Inside Story of Israel's Chemical and Biological Arsenal', Times of Israel, 17 September 2013; A. Cowell, ‘The Daring Attack That Blew Up in Israel's Face', New York Times, 15 October 1997; ‘Israeli Intelligence Agencies Come Under Fire', Janes Intelligence Review, 1 January 1998.
41 ‘Israeli Intelligence Agencies Come Under Fire'; Beyer, Hamad, and Klein, ‘What Went Wrong?’
42 Amnesty International, ‘Attempt to Kill Hamas Leader Follows a Pattern of Extrajudicial Killings', News Service 168/97, 8 October 1997, AI Index: MDE 15/89/97; Harvard Sussex Programme CBW Conventions Bulletin, 29.
43 For information about IIBR and its research activities see: Israel Institute for Biological Research, http://iibr.gov.il/Default.aspx (accessed 8 January 2015).
44 For descriptions of the incident see, for example, Amnesty International, Amnesty International 2003 Annual Report (London: Amnesty International, 2003), entry for the Russian Federation, p. 208; Amnesty International, Rough Justice: The Law and Human Rights in the Russian Federation, October 2003 (AI Index EUR 46/054/2003); D. Koplow, ‘The Russians and the Chechens in Moscow in 2002’, in Non-Lethal Weapons: The Law and Policy of Revolutionary Technologies for the Military and Law Enforcement (Cambridge: Cambridge University Press, 10 April 2006); see also BBC news coverage, in particular: ‘How Special Forces Ended Siege’, 29 October 2002; and BBC 2, ‘Horizon: The Moscow Theatre Siege' (broadcast 15 January 2004), transcript on: http://www.bbc.co.uk/science/horizon/2004/moscowtheatretrans.shtml (accessed 6 October 2014).
45 M. Wheelis, ‘Human Impact of Incapacitating Chemical Agents', in ICRC, Expert Meeting.
46 Amnesty International, Amnesty International 2003 Annual Report; and Human Rights Watch, ‘Independent Commission of Inquiry Must Investigate Raid on Moscow Theater: Inadequate Protection for Consequences of Gas Violates Obligation to Protect Life’ (Press Release, 30 October 2002).
47 ITAR-TASS, from Moscow in English, 21.12 GMT 30 October 2002, as in FBIS-SOV-2002-1030, ‘Russian Experts Discuss Use of Fentanyl in Hostage Crisis', as cited by Perry Robinson, ‘Categories of Challenge'.
48 J. Riches, R. Read, R. Black, N. Cooper, and C. Timperley, ‘Analysis of Clothing and Urine from Moscow Theatre Siege Casualties Reveals Carfentanil and Remifentanil Use', Journal of Analytical Toxicology 36, no. 9 (2012): 647–656.
49 V. Klochikhin, A. Lushnikov, V. Zagaynov, A. Putilov, V. Selivanov, and M. Zatekvakhin, ‘Principles of Modelling of the Scenario of Calmative Application in a Building with Deterred Hostages' (Proceedings of the 3rd European Symposium on Non-Lethal Weapons, Ettlingen, Germany, 10–12 May 2005, V17, Pfinztal: Fraunhofer ICT).
50 V. Klochikhin and V. Selivanov, ‘Report on the 1st Phase of the Project “Gas Flow”' (Presentation in MBDA, 24–27 November 2009, London).
51 See for example: N. Kuzmina and V. Kuzmin, ‘Development of Concepts on the Interaction of Drugs with Opioid Receptors', Russian Chemistry Reviews 80 (2011): 145–69; F. Dukhovich, M. Darkhovskii, E. Gorbatova, and V. Polyakov, ‘The Agonist Paradox: Agonists and Antagonists of Acetylcholine Receptors and Opioid Receptors', Chemistry & Biodiversity 2 (2005): 354–66; N. Kuzmina, V. Yashkir, V. Merkulov, and E. Osipova, ‘Method for Estimating a Compound's Opiate Activity Based on a Versatile Three-Dimensional Model of Nonselective Opiate Pharmacophore', Russian Journal of Bioorganic Chemistry 38, no. 5 (2012): 507–19. For further papers see: Crowley and Dando, Down the Slippery Slope?, 49.
52 See for example: Country Profiles, Syria, Chemical, Nuclear Threat Initiative, http://www.nti.org/countryprofiles/syria/chemical/ (accessed 11 August 2014).
53 On 14 October 2013, Syria formally acceded to the CWC. As required under the convention, Syria declared its existing stockpile of chemical weapons and agreed to facilitate their verification and subsequent destruction under the supervision of the OPCW.
54 See for example: Ipek Yezdani, ‘Chemical Weapons Used Against Syrians, Says Defected Soldier’, Hürriyet Daily News, 21 February 2012; J. Rogin, ‘Exclusive: Secret State Department Cable: Chemical Weapons Used in Syria’, 15 January 2013, http://thecable.foreignpolicy.com/posts/2013/01/15/secret_state_department_cable_chemical_weapons_used_in_syria (accessed 18 January 2015); D. Friedman, ‘Chemical Weapons in Syria: Has a Red Line Been Crossed?', INSS Insight No. 421, 29 April 2013; Zaher Al-Saket, interview broadcast on Al-Arabiya TV on 27 April 2013, transcript as excerpted and translated in ‘Defecting Syrian Officer Brigadier-General Zaher Al-Saket: I Was Ordered to Use Chemical Weapons' (The Middle East Media Research Institute (MEMRI) clip no. 3822, 27 April 2013); ‘Israeli Official Says Syria Has Used Chemical Incapacitant against Insurgents', Janes Defence Weekly, 10 April 2014.
55 For further information see: J. Walker, ‘“Inappropriately Hilarious”: An Historical Overview of the Interest In and Use of Incapacitating Chemical Agents', March 2010; A. Maclean, Historical Survey of the Porton Down Volunteer Programme (Ministry of Defence, June 2006); Dando and Furmanski, ‘Midspectrum Incapacitant Programs'.
56 Three UK research papers on fentanyl and related analgesic chemicals produced by the Chemical Defence Establishment were cited in: Agent Research Studies: 1966–1990, US Army Armament Munitions Command, Chemical Research, Development & Engineering Center, Aberdeen Proving Ground MD, Report CRDEC-TR-345, April 1992, declassified with redactions from CONFIDENTIAL.
57 T. Donnelly, Less Lethal Technologies: Initial Prioritization and Evaluation (UK Home Office, Policing and Crime Reduction Group, Police Scientific Development Branch, Publication No. 12/01).
58 Northern Ireland Office, Patten Report Recommendations 69 and 70 Relating To Public Order Equipment. A Research Programme Into Alternative Policing Approaches Towards The Management of Conflict (Fourth Report prepared by the Steering Group led by the Northern Ireland Office, in consultation with the Association of Chief Police Officers. Belfast: Northern Ireland Office, January 2004).
59 OPCW, Conference of States Parties, United Kingdom: Statement by Mr Alistair Burt, Parliamentary Under Secretary of State for Foreign and Commonwealth Affairs, Third Review Conference, RC-3/NAT.22, 8–19 April 2013, 9 April 2013.
60 Biomedical Sciences Department, CBD Sector [of Defence Evaluation and Research Agency] Porton Down, An Overview of Research carried out on Glycollates and Related Compounds at CBD Porton Down, DERA/CBD/CR990418, September 1999; Riches, ‘Analysis of Clothing and Urine from Moscow Theatre Siege Casualties Reveals Carfentanil and Remifentanil Use'; United Kingdom, ‘Format for the Annual Reporting of Information on National Programmes for Protection Against Chemical Weapons, Under Article X of the Chemical Weapons Convention', Annex A, 29 February 2012, 5.
61 For discussion of historical US ICA weapons research, see for example: Dando and Furmanski, ‘Midspectrum Incapacitant Programs'; N. Davison, Bradford Science and Technology Report No. 8 ‘Off the Rocker’ and ‘On the Floor’: The Continued Development of Biochemical Incapacitating Weapons, August 2007; M. Furmanski, ‘Historical Military Interest in Low-Lethality Biochemical Agents', in Incapacitating Biochemical Weapons, ed. Pearson, Chevrier, and Wheelis, 35–66; A. Pearson, ‘Late and Post-Cold War Research and Development of Incapacitating Biochemical Weapons', in Incapacitating Biochemical Weapons, ed. Pearson, Chevrier, and Wheelis, 67–102; J. Perry Robinson, ‘Disabling Chemical Weapons: A Documented Chronology of Events, 1945–2011' (copy provided by author), 20 November 2012.
62 Dando and Furmanski, ‘Midspectrum Incapacitant Programs', 250.
63 For detailed discussion of US ICA weapons research see: Crowley and Dando, Down the Slippery Slope?, 63–73.
64 OPCW, Executive Council, Seventy-Second Session, United States of America: Statement by Ambassador Robert P. Mikulak, United States Delegation to the OPCW, at the Seventy-Second Session of the Executive Council, EC-72/NAT.8 6 and 7 May 2013, 6 May 2013; OPCW, United States of America: Statement by Rose E. Gottemoeller, Under Secretary for Arms Control and International Security, to the 19th Session of the Conference of States Parties, 3 December 2014.
65 OPCW, Chemical Weapons Convention, Article I.
66 Under Article X, states are permitted to ‘conduct research into, develop, produce, acquire, transfer or use means of protection against chemical weapons, for purposes not prohibited under this Convention’, even where this involves production in appropriate quantities of potential chemical weapons agents, including ICAs. Consequently, in order to increase ‘transparency of national programmes related to protective purposes', Article X obliges each state party to ‘provide annually to the Technical Secretariat information on its programme' (see: OPCW, Chemical Weapons Convention, Article X).
67 OPCW, Chemical Weapons Convention, Article I(3).
68 Ibid., Article I(4).
69 Ibid., Articles II(9) (a), V(14), and XI(2) (c).
70 Ibid., Article II(1)a.
71 Ibid., Article II(2).
72 Ibid., Article II(2).
73 M. Meselson and J. Perry Robinson, ‘New Technologies and the Loophole, Editorial', Chemical Weapons Convention Bulletin 23 (March 1994), Harvard Sussex Program, 1, http://fas-www.harvard.edu/_/hsp/bulletin/cwcb23.pdf (accessed 5 August 2014).
74 Although the CWC schedules currently list only one ICA: BZ (Schedule 2.a.), and two of its immediate precursors, 3-Quinuclidinol and Benzilic Acid (both Schedule 2.b.) (see: OPCW, Chemical Weapons Convention, Annex on Chemicals, B. Schedules of Chemicals, Schedule 2.), all toxic chemicals promoted as ICAs fall within the convention's ambit.
75 OPCW, Chemical Weapons Convention, Article II(9).
76 In addition to the Chemical Weapons Convention, the use of toxic chemicals in armed conflict is prohibited under the 1925 Geneva Protocol and customary international humanitarian law. For further discussion, see: ICRC, ‘Toxic Chemicals as Weapons for Law Enforcement'; D. Loye, ‘Potential Implications for International Humanitarian Law', in Expert Meeting, ed. ICRC, 40–2; F. Hampson, ‘International Law and the Regulation of Weapons', in Incapacitating Biochemical Weapons, ed. Pearson, Chevrier, and Wheelis, 231–61; R. Coupland, ‘Incapacitating Biochemical Weapons: Risks and Uncertainties', in Incapacitating Biochemical Weapons, ed. Pearson, Chevrier, and Wheelis, 225–23.
77 OPCW, Chemical Weapons Convention, Article III(1) a–c.
78 Ibid., Article I (2) and (4); Article IV and Article V.
79 Ibid., Article II(9)d.
80 A. Chayes and M. Meselson, ‘Proposed Guidelines on the Status of Riot Control Agents and Other Toxic Chemicals Under the Chemical Weapons Convention’, Chemical Weapons Convention Bulletin 35 (March 1997), Harvard Sussex Program, 13–8.
81 W. Krutzsch, ‘Non-Lethal Chemicals for Law Enforcement’, BITS Research Note 03.2, April 2003, Berlin Information Centre for Transatlantic Security; W. Krutzsch and A. Von Wagner, ‘Law Enforcement Including Domestic Riot Control: The Interpretation of Article II, Paragraph 9(d)’, cwc2008.files.wordpress.com/2008/04/krutzsch-von-wagner-law-enforcement.pdf (accessed 11 January 2015).
82 W. Krutzsch and R. Trapp, ‘Article II: Definitions and Criteria', in The Chemical Weapons Convention: A Commentary, ed. W. Krutzsch, E. Myjer, and R. Trapp (Oxford: Oxford University Press, 2014), 73–104.
83 A. Von Wagner, ‘Toxic Chemicals for Law Enforcement Including Domestic Riot Control Purposes Under the Chemical Weapons Convention’, in Incapacitating Biochemical Weapons, ed. Pearson, Chevrier, and Wheelis, 195–208.
84 The only possible exceptions to this restriction recognised are those toxic chemicals used for judicially sanctioned execution, provided such chemicals are not on the convention's Schedule 1 list. See for example Chayes and Meselson, ‘Proposed Guidelines on the Status of Riot Control Agents and Other Toxic Chemicals Under the Chemical Weapons Convention’, 17–18.
85 Ibid., 17.
86 Krutzsch and Trapp, ‘Article II: Definitions and Criteria’, 102.
87 D. Fidler, ‘Incapacitating Chemical and Biochemical Weapons and Law Enforcement under the Chemical Weapons Convention', in Incapacitating Biochemical Weapons, ed. Pearson, Chevrier, and Wheelis, 174.
88 D. Neil, ‘Riot Control Agents and Incapacitating Chemical Agents Under the Chemical Weapons Convention', Defence R&D Canada, Technical Memorandum DRDC CORA TM 2007-22, June 2007.
89 Fidler, ‘Incapacitating Chemical and Biochemical Weapons and Law Enforcement’, 174.
90 Ibid., 175.
91 Ibid., 185.
92 See for example: OPCW, Statement by Ambassador Dominik M. Alder, Permanent Representative of Switzerland to the OPCW, Second Review Conference of the Chemical Weapons Convention, General Debate, The Hague, Netherlands, 8 April 2008.
93 OPCW, Conference of States Parties, Switzerland: Statement by Markus Borlin, Permanent Representative of Switzerland to the OPCW, General Debate, Statement at the Third Special Session of the Conference of the States Parties to Review the Operation of the Chemical Weapons Convention, 8 April 2013.
94 The text of national statements delivered, and relevant working papers submitted, by states parties to the Third Review Conference are available on the OPCW website.
95 OPCW, Conference of States Parties, Australia, Weaponisation of Central Nervous System Acting Chemicals for Law Enforcement, Nineteenth Session C-19/NAT.1, 1–5 December 2014, 14 November 2014, para. 5.
96 During the Third CWC Review Conference, certain states parties, i.e. Germany and Switzerland, explicitly declared that only riot control agents can be employed in their countries for law enforcement.
97 OPCW, Conference of States Parties, Australia, para. 6.
98 Ibid., para. 7.
99 Other potentially applicable norms are: the rights to health, and to liberty and security. For further discussion see: M. Crowley, ‘The Use of Incapacitants in Law Enforcement', in Weapons under International Human Rights Law, ed. S. Casey-Maslen (Cambridge: Cambridge University Press, 2014), 357–81; L. Doswald-Beck, ‘Assessing “Incapacitating Chemical Agents” under Human Rights Law', in ‘Incapacitating Chemical Agents', ed. ICRC, 39–45; F. Hampson, ‘Potential Implications for Human Rights Law, in Expert Meeting, ed. ICRC, 53–56.
100 See, for example, Universal Declaration of Human Rights, adopted and proclaimed by UN General Assembly Resolution 217 A (III), 10 December 1948, Article 3; International Covenant on Civil and Political Rights, adopted on 16 December 1966, Article 6; Convention on the Rights of the Child, adopted and opened for signature, ratification and accession by UN General Assembly Resolution 44/25 of 20 November 1989, Article 6.
101 African Charter on Human and Peoples Rights, adopted by Organisation of African Unity on 27 June 1981, Article 4; American Convention on Human Rights, signed at San Jose, Costa Rica, 22 November 1969, Article 4; European Convention on the Protection of Human Rights and Fundamental Freedoms, signed on 4 November 1950, Article 2. These obligations are binding upon those states party to the relevant agreements and their application has subsequently been clarified following judgments made by the relevant regional legal institutions.
102 W. Aceves, ‘Human Rights Law and the Use of Incapacitating Biochemical Weapons', in Incapacitating Biochemical Weapons, ed. A. Pearson, M. Chevrier, and M. Wheelis, 286.
103 Fidler, ‘Incapacitating Chemical and Biochemical Weapons and Law Enforcement’, 175. See also: ICRC, ‘Toxic Chemicals as Weapons for Law Enforcement’, 3.
104 Leading human rights non-governmental organisations have also raised concerns about this use of an ICA weapon by the Russian Federation. See, for example, Human Rights Watch, ‘Independent Commission of Inquiry Must Investigate Raid on Moscow Theater: Inadequate Protection for Consequences of Gas Violates Obligation to Protect Life', Press Release, 30 October 2002; Amnesty International, ‘Rough Justice: The Law and Human Rights in the Russian Federation', October 2003 (AI Index EUR 46/054/2003).
105 ‘Report of the Special Rapporteur, Asma Jahangir, Submitted Pursuant to Commission on Human Rights Resolution 2002/36’, UN doc. E/CN.4/2003/3, 13 January 2003, 15, §34.
106 ‘Concluding Observations of the Human Rights Committee: Russian Federation’, UN doc. CCPR/CO/79/RUS, 6 November 2003, 4, §14.
107 Ibid.
108 Ibid., 4, §14.
109 Under Article 2 of the ECHR: ‘ 1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.'
110 European Court of Human Rights, Finogenov and others v. Russia, App. Nos 18299/03 and 27311/03, Judgment, 20 December 2011.
111 Ibid., §201.
112 Ibid., §202.
113 Ibid., §202.
114 Ibid., §203.
115 This term refers to the space for manoeuvre that the Strasbourg organs are willing to grant national authorities in fulfilling their obligations under the ECHR. For further discussion see, for example: The Margin of Appreciation, Council of Europe, Judicial Professions, The Lisbon Network, http://www.coe.int/t/dghl/cooperation/lisbonnetwork/themis/echr/paper2_en.asp (accessed 18 January 2015).
116 Ibid., §213.
117 Ibid., §232.
118 Ibid., §236.
119 See ibid., §§243–62, and §266.
120 See Ibid., §§277, 279, 281 and 282.
121 ICRC, ‘Toxic Chemicals as Weapons for Law Enforcement’, 3.
122 A. Kelle, ‘The Message From Strasbourg', Bulletin of the Atomic Scientists, 23 February 2012; A. Kelle, ‘Legally Incapacitated, Politically Outmaneuvered', Bulletin of the Atomic Scientists, 7 June 2012.
123 See in particular, European Court of Human Rights, Finogenov and others v. Russia, paras 162–4 and 228–9.
124 Ibid., para. 229.
125 European Court of Human Rights, press release issued by the Registrar of the Court, ECHR 270 (2012) 27.06.2012.
126 In the case of Finogenov and others v. Russia, the court ruled that Russia was to pay all 64 applicants a total award – as regards non-pecuniary damage – of €1,254,000, and €30,000, jointly, for costs and expenses. See ibid., §§285–96.
127 The African Court on Human and Peoples' Rights, the European Court of Human Rights and the Inter-American Courts of Human Rights.
128 The Human Rights Committee can also consider a case raised through individual petition, but can only reach non-binding conclusions in such instances. See: F. Hampson, ‘International Law and the Regulation of Weapons', in Incapacitating Biochemical Weapons, ed. A. Pearson, M. Chevrier, and M. Wheelis, 243.
129 Ibid.
130 Universal Declaration of Human Rights, Article 5; ICCPR, Article 7; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature, ratification and accession by UN General Assembly Resolution 39/46, 10 December 1984; and the Convention on the Rights of the Child, Article 37(a).
131 See the 1981 African Charter on Human and Peoples' Rights, Article 5; ACHR, Article 5; ECHR, Article 3; European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, Strasbourg, 26 November1987; and the Inter-American Convention to Prevent and Punish Torture, adopted by the 15th Regular Session of the General Assembly of the Organisation of American States, 9 December 1985, OAS Treaty Series No. 67.
132 See, for example, ICCPR, Articles 4 and 7; Human Rights Committee, ‘General Comment No. 29: States of Emergency (Article 4)’, UN doc. CCPR/C/21/Rev.1/Add.11, 21 August 2001, §7.
133 United Nations, Convention against Torture, Article 1(1).
134 United Nations, Rome Statute of the International Criminal Court, A/CONF.183/9 of 17 July 1998, Article 8 (2) (a) (ii), as cited in J.M. Henckaerts and L. Doswald-Beck, eds, Customary International Humanitarian Law: Rules, Volume I (Cambridge: Cambridge University Press, 2005), Rule 90.
135 European Commission of Human Rights, Greek case (cited in Vol. II, Ch. 32, § 1339), as cited in Henckaerts and Doswald-Beck, Customary International Humanitarian Law, Rule 90.
136 United Nations, Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Adopted by General Assembly Resolution 43/173 of 9 December 1988, Principle 6, Commentary.
137 United Nations, Commission on Human Rights, ‘Torture and Other Cruel, Inhuman or Degrading Treatment', Report of the Special Rapporteur on the Question of Torture, Manfred Nowak, E/CN.4/2006/6, 23 December 2005, para. 38.
138 W. Aceves, ‘Human Rights Law and the Use of Incapacitating Biochemical Weapons', in Incapacitating Biochemical Weapons, ed. A. Pearson, M. Chevrier, and M. Wheelis, 271.
139 The notion of ‘degrading treatment’ has been defined by the European Commission of Human Rights as treatment or punishment that ‘grossly humiliates the victim before others or drives the detainee to act against his/her will or conscience’. European Commission of Human Rights, Greek case (cited in Vol. II, Ch. 32, § 1339), as cited in Henckaerts and Doswald-Beck, Customary International Humanitarian Law, Rule 90.
140 Royal Society, ‘Brain Waves Module 3’, 24.
141 Ibid., 24, n. 78.
142 Fidler, ‘Incapacitating Chemical and Biochemical Weapons and Law Enforcement’, 176.
143 Ibid.
144 Such as the Committee against Torture established under the UN Convention Against Torture (1984); or the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and the European Court of Human Rights with regard to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (1989).
145 Given the nature of the toxic chemicals under consideration and the proposed contexts for their use, the applicability of the Single Convention on Narcotic Drugs, the Convention on Psychotropic Substances, and the Biological and Toxin Weapons Convention may also be applicable. For further discussion see: D. Crowley, ‘Potential Implications for Disarmament and Other Areas of International Law', pp. 42–53, in Expert Meeting, ed. ICRC; ICRC, ‘Toxic Chemicals as Weapons for Law Enforcement'.