Middle East

Next up: 'Non-lethal' chemicals that kill
By David Isenberg

It is increasingly an Orwellian world. Up is down. White is black. Invading another country is providing for the defense of your own. And now, it appears that the use of lethal chemical weapons will be "non-lethal", if, as appears possible, so-called "non-lethal weapons" (NLW) are used by the United States in Iraq.

Military interest in NLW goes back many years. In 1991, then defense secretary Dick Cheney (now vice president) established a Non-Lethal Warfare Study Group chaired by his undersecretary for policy, Paul Wolfowitz (now deputy secretary of defense). Even back then, there was disagreement about how non-lethal such systems would prove to be. According to an April 1991 memo from Wolfowitz to then-deputy defense secretary Donald Atwood, NLW "disable or destroy without causing injury or damage". But comments written in the margin, apparently by Atwood, said "This claims too much."

NLW advocates have long tried to build support for these systems by characterizing them as a means of making war more humane. But such claims are highly questionable. A 1994 Defense Science Board study noted that "Non-lethal incapacitating chemical agents could lead to greater lethality by making enemies more vulnerable to lethal weapons. So, the results of non-lethal weapons are not clear-cut in all cases."

One controversial class of NLW likely to be used in Iraq is toxic riot-control agents (RCA), such as tear gas, CS gas and pepper spray. The media have reported that the US is preparing to use such agents in Iraq, particularly if the conflict centers on street fighting in Baghdad itself, as now seems likely.

The use of riot control agents would, in the view of many legal and arms control experts, violate the Chemical Weapons Convention (CWC), which entered into force in 1997. The CWC bans the use of these agents in battle, not least because they risk causing an escalation to full chemical warfare. This applies even though they can be used in civil disturbances at home.

If US forces were to use these agents, it would drive a wedge between themselves and their closest coalition partners, the British government, which is opposed to their use. On March 27, British Defense Secretary Geoff Hoon said in a press conference, "Non-lethal chemical weapons are permitted for dealing with riot control. The United Kingdom is - [inaudible] - signed up to the Chemical Weapons Convention, and they would not be used by the United Kingdom in any military operation or on any battlefield."

It is British policy not to allow troops to take part in operations where riot control agents are employed. The UK Ministry of Defense has reportedly warned the US that it will not allow British troops to be involved in operations where riot control agents are used, or to transport them to the battlefield. The International Committee of the Red Cross has also warned that use of such agents would violate the CWC.

Nonetheless, the US Marine Corps confirmed that CS gas and pepper spray had already been shipped to the Gulf. Rumsfeld testified to Congress on February 5 that Pentagon officials are fashioning rules of engagement that could allow the US military to use non-lethal agents if the US attacked Iraq.

But what Rumsfeld appears to propose would be illegal and a violation of the CWC, which states that "any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals" is forbidden as a method of warfare. The US, along with another 150 countries to date, including the United Kingdom, ratified this treaty and is pledged to uphold it.

The US ratification included a number of exemptions which might make permissible - from the US government's viewpoint - the uses of riot control agents that the Department of Defense is contemplating, even though Article I of the CWC clearly states, "Each state party undertakes not to use riot control agents as a method of warfare."

The US government has long wanted to preserve the option of using RCA. For example, it interpreted the Geneva Protocol of 1925 as not applying to the use of "non-lethal" toxic chemicals and attempted to preserve its ability to use "non-lethal" chemical agents in defined military situations when ratifying the Protocol in 1975.

Yet a 1975 executive order (EO 11850) issued by then-president Gerald Ford required prior presidential approval for the use of RCAs in war and permits such agents to be used only for defensive purposes to save lives. It prohibited the use of RCA except in defensive military modes to save lives such as:
  • Use of riot control agents in riot control situations in areas under direct and distinct US military control, to include controlling rioting prisoners of war.
  • Use of riot control agents in situations in which civilians are used to mask or screen attacks and civilian casualties can be reduced or avoided.
  • Use of riot control agents in rescue missions in remotely isolated areas, of downed aircrews and passengers, and escaping prisoners.
  • Use of riot control agents in rear echelon areas outside the zone of immediate combat to protect convoys from civil disturbances, terrorists and paramilitary organizations.

    Yet a close reading of the text and negotiating record of the CWC shows that RCA forms both a special class under the CWC and also fall under the category of "toxic chemicals", with all the restrictions imposed on traditional chemical weapons. The US interpretation of the CWC regarding RCA is invalid because it evades the requirement that prohibits the use of toxic chemicals, except where intended for purposes not prohibited under this convention.

    In recent years, however, the Pentagon has gradually turned to new and dangerously loose interpretations of the CWC that would allow the military use of incapacitating chemicals. The changes in policy amount to a "very serious assault" on the CWC, warns microbiology professor Mark Wheelis of the University of California, who has written extensively on chemical and biological weapons issues: "And it is being guided by very narrow, shortsighted tactical concerns. If the United States is allowed to continue to develop [calmatives] sooner or later we are going to be employing artillery shells and aerial bombs [loaded with calmatives]. And we are going to have troops trained to use them. If the United States does this, other countries will follow suit. The long-term implications are quite profound." According to Wheelis, it amounts to no less than "preparing for chemical war".

    As British chemical warfare expert Alastair Hay noted, Rumsfeld, in his testimony, referred to the CWC as a "straitjacket" limiting US options in war. What the US should be able to do, Rumsfeld claims, is resort to the use of non-lethal agents in combat situations when civilians are present and when there is a need to preserve life. He gave two examples. The first was "when transporting dangerous people in a confined space", such as within an aircraft. The second was when "women and children" are trapped with enemy troops "in a cave".

    Most nations consider that such action is forbidden by international law. The CWC explicitly forbids the use of riot-control agents, except for domestic law enforcement purposes. Under the CWC, these and other chemicals can also be used for policing operations if domestic national law permits them. The exemption applies only to those policing operations and not to any external armed conflict. It would be stretching credulity to argue that the current conflict with Iraq is a simple policing operation. Furthermore, US armed forces are forbidden by the Posse Comitatus Act of 1878 and related regulations from domestic law enforcement.

    "Calmative" gases could also be employed in Iraq. These are commonly referred to as "incapacitating agents", and have been in the news since their use in the rescue of hostages held in a Moscow theater in October 2002. Non-lethal weapons advocates called it a success as most of the hostages were rescued. But it should be pointed out that around 16 percent (120) of the hostages died from the effects of the chemical agent (as well as all of the captors, who were executed by security forces while they were comatose).

    Such lethal consequences are inevitable. When any substance is delivered through the air it is impossible to control individual doses. The fact that surgery patients periodically die while under anesthesia, which is a far more controlled situation than would occur with NLW use on the battlefield, illustrates the impossibility of using calmatives without causing fatalities.

    In fact, as an analysis by the Federation of American Scientists (FAS) points out, a categorical distinction between lethal and non-lethal agents is not scientifically feasible. Not only are certain individuals more susceptible to some agents, but synergy between two different non-lethal agents may make their combination highly lethal to everyone. Rational strategies to discover such synergistic pairs will soon be available. Thus, the development of multiple non-lethal agents may provide a lethal chemical warfare capability, illustrating the importance of their development to the integrity of the Chemical Weapons Convention. Even without synergism, stockpiles of non-lethal weapons and munitions would defeat a fundamental goal of the convention, to exclude completely the possibility of the use of chemical weapons by preventing states from entering a war with a stockpile of chemical weapons whose use is proscribed, but which might nevertheless be employed under pressure of military necessity.

    This should not come as a surprise. According to Julian Perry Robinson, director of the Harvard Sussex Program on chemical and biological warfare at the University of Sussex in England, Britain abandoned its program at the Porton Down research center, active in the 1960s, to seek a usable calmative agent related to fentanyl. One reason was that scientists could not find an agent that would come close to the 2 percent lethality limit it required of "non-lethal" agents. The US army also destroyed stocks of the incapacitant it developed, BZ, a hallucinogen, because of its unreliable effects.

    Indeed, even a report released in November 2002 by the US National Research Council, that was generally sympathetic to the idea of NLW use, stated: "Chemical non-lethal weapons programs that deliver chemical contaminants to a crowd - other than riot control agents - would likely fail in meeting the Hague requirement for 'distinction' as the delivery method is not isolated and/or cannot be controlled well enough to prevent the chemical contaminants from affecting people who are not related to the intended military target. It is unlikely that calmatives in their current form will be lawful under international law, when used in warfighting situations."

    In the Moscow theater siege, at around 16 percent, the lethality of the chemical calmatives was comparable to that of conventional lethal technologies, such as firearms in military combat (typically about 35 percent), artillery (20 percent), or fragmentation grenades (10 percent). In fact, "lethal" chemical weapons are comparable; in World War I, the lethality of gas was about 7 percent. All currently available chemical incapacitating agents would certainly fall into this range in normal use, and thus must be considered lethal technologies, in the same category as traditional chemical weapons.

    FAS developed a mathematical model to predict fatalities from such agents which found that when an incapacitating agent that is exceptionally safe by pharmacological standards (therapeutic index (TI) =1000) is delivered under ideal conditions to a uniformly healthy population, 9 percent of victims would die if the goal were to incapacitate almost everyone (99 percent) in a particular place (often an enclosed space), as in hostage rescue or urban military operations.

    Pharmaceutical substances are seen by some as the key to a new generation of anti-personnel weapons. Although it has denied such research in the past, a Pentagon program has recently released more information confirming that it wants to deploy pharmaceutical weapons.

    According to a report by Dr Steven Wright, director of the Omega Foundation in the UK, the US military search for calmatives has been increasing. These include benzodiazepines, alpha2 adrenoreceptor antagonists, dopamine D3 receptor agonists, serotonin selective reuptake inhibitors, serotonin 5-Ht receptor agonists, opioid receptors and mu agonists, neuroleptic anaesthetics, corticotrophin-releasing factor receptor antagonists and cholecystokinin B receptor antagonists as well as a range of convulsants, illegal club drugs and what are blandly called orphan pharmaceuticals - essentially drugs too dangerous to get past medical review boards but with a potential weapons role, assuming civilians can be regarded as expendable.

    The physical effects of such agents are not the only problem they present. Other potential adverse impacts include: Development of chemical incapacitants by one country will encourage others to follow suit. As a result, incapacitants would become an available temptation to the military in many countries for illegal use in armed conflict.

    Further, incapacitants in the hands of the military were routinely used in Vietnam as adjuncts, not alternatives, to lethal force. Such use was later determined to violate the rules of war, as subsequently codified in the 1977 Additional Protocol I Related to the Protection of Victims of International Armed Conflicts and two earlier international treaties.

    And once developed, chemical incapacitants are likely to proliferate to terrorists and other non-state actors, thereby increasing their lethal reach. According to the Center for Nonproliferation Studies, tear gas was used 27 times in 1999 by non-state actors.

    A report to the European Parliament in 2000 warned of such developments and recommended that all EU countries adopt the UK standard, known as the Himmsworth Committee recommendations, namely that all chemicals being considered for riot control and law enforcement should be considered as drugs and subject to the same safety checks, and that this research should be openly published in scientific journals in advance of any authorization of usage. In the case of calmatives, such caveats are vital, as one person's tranquilization is another person's lethal dose.

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