An earlier version of this paper appears as the
editorial in The CBW Conventions Bulletin no 61, September 2003.
It is hard to think of anything with as much potential for jeopardizing
the long-term future of the Chemical and Biological Weapons Conventions
as the growing interest in creating special exemptions for so-called
‘non-lethal’ weapons (NLW). The First CWC Review Conference in The
Hague earlier this year was opportunity to address the problem constructively.
But, save in the national statements of New Zealand, Norway and Switzerland,
the OPCW preferred to ignore it. In the programme of Review-Conference
follow-up work that is now getting under way, there is no mention
of disabling chemicals, not even tear gas, still less the so-called
‘calmatives’ and other such incapacitating agents in which interest
is now reawakening.
The one emerging area of technology that today is
most in need of strong and lasting arms control -- biotechnology --
is exactly where new disabling chemicals are coming from, furnishing
potential weapons that are tempting some government agencies to depart
from or to seek revision of the prohibitions of the CWC. Notions of
incapacitating chemical weapons are not new; but, as investment mounts
in NLW technologies, it becomes increasingly urgent that the threat
they pose to the CWC and BWC regimes be recognised.
In the broadest perspective, as different
kinds of technology have arisen, they have also been reflected in
the means of war and violence. As new inventions or discoveries come
along, they find all kinds of applications, including applications
for hostile purposes. The rise of biotechnology, however, poses a
special problem, as it will inevitably develop means for manipulating
all of the life processes, including cognition, development, reproduction
and heredity. Therein lie unprecedented and, in time, widely accessible
possibilities for violence, coercion, repression or subjugation.
For example, not so long ago we did not
know, but know now, that there are several thousand different kinds
of receptor in the human brain. A receptor is a protein molecule
within or on the surface membrane of a cell which, when a certain
kind of smaller molecule called a ligand binds to it, causes something
to happen. Receptors and their ligands are part of the body's immensely
complex chemical communication system. One group of receptors in our
brains are the opioid receptors. The body manufactures ligands –
enkephalins and endorphins – that bind with these receptors, variously
alleviating pain, inducing sleep, or reducing anxiety. It turns out
that these ligands can be imitated by some plant products, one of
which is heroin. Also, certain synthetic chemical analogues of heroin
bind to particular opioid receptors, causing diverse effects depending
on the chemical, including short-term memory impairment, breathing
difficulty and flaccid paralysis. One of these chemicals is fentanyl,
which was the basis for the ‘knockout gas’ used by Russian special
forces to rescue several hundred hostages in the Moscow theatre siege
of October 2002. The US Army Chemical Corps was studying fentanyl
and related chemicals as candidate disabling weapons as early as May
1963. [1]
There are innumerable other kinds of receptors
in the brain, most of which we know almost nothing about. Of the
few that have been investigated, we do know that some can mediate
temporary blindness, for example, or can cause submissiveness, or
extreme fear. Others affect memory or motivation. As time goes on,
we will learn how to do many kinds of things to people with chemicals
that bind to brain receptors or interact specifically with other life
processes. Many applications will be beneficial. It should be possible
to conduct surgical operations with greater ease and safety with the
newer anaesthetics that may be made possible by this kind of research.
But, as with all major new technologies in the past, this, as well
as other branches of biotechnology, will also have potential hostile
applications. The challenge, then, is to promote the peaceful and
humane applications of the new technology while preventing its exploitation
for hostile purposes. Fortunately, the Chemical and Biological Weapons
Conventions provide means for protecting the peaceful uses while maintaining
and strengthening the barriers to hostile ones.
How do the CWC and BWC keep abreast of technological
innovation? They do so in the same way as they cope with the problem
of ‘dual use’, through the ‘general purpose criterion’ set out in
Article II.1(a) and Article VI.2 of the CWC and Article I of the BWC.
Instead of prohibiting a particular chemical, or family of chemicals,
the CWC prohibits all toxic chemicals except for the listed purposes
that it does not prohibit. These listed purposes include “industrial,
agricultural, research, medical, pharmaceutical or other peaceful
purposes; …purposes directly related to protection against toxic chemicals
…; military purposes not connected with the use of chemical weapons
and not dependent upon the toxic properties of chemicals as a method
of warfare; law enforcement including domestic riot control purposes”.
Toxic is defined in the CWC as anything that is harmful through “chemical
action on life processes”, whether employed under conditions in which
it is temporarily incapacitating or lethal. Some toxic substances
that have been considered for use as disabling chemical weapons are
even more toxic than the chemicals developed for lethal purposes,
in the sense that extremely small amounts are sufficient to cause
an effect. Lofentanil, for example, which is a derivative of fentanyl,
is far more toxic than nerve agent. It will cause anaesthesia at
a dose of 0.025 micrograms per kilogram body weight, [2] which is hundreds
of times smaller than the estimated lethal dose of VX.
The BWC invokes a similar general purpose
criterion, prohibiting in Article I “microbial or other biological
agents, or toxins whatever their origin or method of production of
types and in quantities that have no justification for prophylactic,
protective or other peaceful purposes”. The inclusion not only of
‘microbial agents’ but also of ‘toxins’, captures such natural substances
as those ligands and other naturally occurring bio-active molecules
and their chemical analogues that can exert harmful effects on life
processes. [3]
The two Conventions therefore are mutually reinforcing in their prohibition
of toxicity as a weapon of war.
Provided the ‘general purpose criterion’
is implemented properly, it protects the Conventions against obsolescence
due to technological advance in biochemistry and biotechnology. When
new toxic chemicals are discovered, they automatically come under
its purview.
Uniquely, the United States has declared
a policy that, in effect, excludes certain chemicals from the ‘general
purpose criterion’, and there is now interest in broadening the exclusion
still further. During negotiation of the CWC, some members of the
US delegation asserted that ‘riot control agents’ were not toxic chemicals
in the sense of the CWC. This is the position espoused by influential
US military lawyers today. And, since 1997, the US Weapons Review
Program has been generating the opinion that ‘calmative agents’ such
as the fentanyls are also exempt from the ‘general purpose criterion’
provided those chemicals are classifiable as ‘riot control agents’. [4] What is being lost sight of here are the grave
risks inherent in any blanket exemption for any toxic
chemical.
The first is the escalation hazard. In March 1965, during the Vietnam
War, after newspaper stories had been published about US use of ‘riot
control agents’, Secretary of State Dean Rusk in a prepared statement
said: “We do not expect that gas will be used in ordinary military
operations.” [5]
And he did not. Subsequently, however, 25 different types of weapon
disseminating the irritant agent CS, including heavy munitions ranging
up to 155-mm artillery shell and 750-pound aircraft bombs, were used
in Viet Nam. Ultimately more than 15 million pounds of CS were dispensed
in these munitions. [6] A post-war analysis of the operational
use of CS declassified in 1979 could find no report of its use against
non-combatants or to save civilians and concluded that “...the reduction
in casualties has not been in enemy or noncombatant personnel but,
rather, friendly troops, as a result of using CS to make other fires
more effective.” [7]
Thus the United States, whose military is under civilian
control and whose vital interests were not at stake in Viet Nam, came
to use vast quantities of ‘non-lethal’ chemical weapons under the
pressures of a wartime situation in a manner totally at variance with
its initially announced policy.
In World War II, the United States, the
Soviet Union and the major European belligerents had around 20,000
metric tons of irritant agents (CA, CN, DA, DC and DM) in their stockpiles
but used none in combat.
[8] The line against all chemical weapons was understood,
and the line held. During the Korean War, the United States had huge
stockpiles of tear-gas munitions. They were never used except in
non-combat situations, most notably on rioting detainees in prisoner-of-war
camps. Again the line held. The United States did not progress to
using lethal chemical weapons during the Vietnam War, despite its
use of tactical CS weapons. However, in World War I, lethal chemical
warfare began with the use of tear gas. In Manchuria, in Ethiopia
and in the Yemen, lethal chemical warfare began with the use of tear
gas. In the Iraq-Iran war, it began with tear gas, and half of all
the chemical munitions later declared to UNSCOM by Saddam Hussein’s
Iraq were CS munitions, mainly mortar rounds and aircraft bombs.
Every confirmed resort to lethal chemical warfare has started with
tear gas. [9] One major concern regarding any
NLW exemption, then, is battlefield escalation – both escalation to
other agents and escalation to unrestricted employment.
There is another kind of escalation, which is the fostering of the
growth and influence of institutions that are dependent upon the development
and weaponization of chemical agents. Such institutions and their
associated bureaucracies and dependent communities inevitably become
a source of pressure for doing more in this area, and for promoting
the assimilation of chemical weapons into the structures and doctrine
of state forces.
[10]
A further danger is that hostile resort to disabling chemicals may
lead to a loss of confidence in the CWC regime. Imagine the effect
on citizens of the world, and their governments, when they observe
war on television and see men fighting in gas masks, see weapons discharging
clouds of toxic smoke or sprays of gas. What then will they think
of the Convention for the Prohibition of Chemical Weapons, or of the
Organization mandated to implement it?
Exemption also risks providing cover for cheating. Inspectors may
find a large quantity of toxic chemical munitions and, upon asking
what they are for, may be told “law enforcement”; and that, pretty
much, would be the end of it. Maybe the inspectors were told the
truth, but it does not make compliance verification any easier, and
it allows for argument about what is and is not a violation.
Finally, and the most serious difficulty of all, exemption blurs
the simple line, no poisons in war. The simplicity and lack
of ambiguity in this ancient dictum [11] make it uniquely a focus for agreement. The importance
of averting the hostile exploitation of biotechnology, with its immense
potentials for both benefit and harm, is immeasurably more important
than the marginal utility of "non-lethal" chemical weapons
in military and paramilitary operations. Instead of logic-chopping
arguments intended to relax the prohibitions of the CWC and the BWC,
we must look to these international agreements as the basis of a clear
and generally agreed firebreak against military use in war of all
toxic weapons, existing and yet to be devised.
