The meaning of Moscow: “Non-lethal” weapons and international law in the early 21st century

International Review of the Red Cross

Volumn 87, Issue 859, 2005, Pages 525-552

  Fidler, David P ^a  

^a INDIANA UNIVERSITY   (United States)

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EID: 33748121030     PISSN: 18163831     EISSN: 16075889     Source Type: Journal    
DOI: 10.1017/S1816383100184371     Document Type: Article

References (123)

1. The literature on NLWs is now voluminous. For one bibliography on NLWs compiled by the Air University Library at Maxwell Air Force Base, see Non-Lethal Weapons, August 2004, at . Bibliography updates on NLWs are provided in the periodic Bradford Non-Lethal Weapons Research Project Reports, at (last visited 22 June 2005).
2. David P. Fidler, “The international legal implications of ‘non-lethal’ weapons”, Michigan Journal of International Law, Vol. 21,1999, pp. 51–100.
3. David P. Fidler, “‘Non-lethal’ weapons and international law: Three perspectives on the future”, Medicine, Conflict and Survival, Vol. 17, 2001, pp. 194–206.
4. In 1999,I argued, for example, that “[g]iven the embryonic nature of 'non-lethal’ weapons development and integration into military forces and strategies, much of the international legal analysis unfolds in a vacuum of precedent, which gives the analysis an abstract and, at times, speculative quality.” Fidler, Medicine, Conflict and Survival. (note 2), p. 55.
5. Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, 13 January 1993, UNTS, Vol. 1974, p. 317 (hereinafter CWC).
6. Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, 10 April 1972, International Legal Materials, Vol. 11, 1972, p. 309 (hereinafter BWC).
7. Nicholas Lewer and Neil Davison, “Non-lethal technologies: An overview,” Disarmament Forum, 2005, pp. 37–51
8. Neil Davison and Nicholas Lewer, Bradford Non-Lethal Weapons Research Project Research Report No. 7, May 2005
9. Neil Davison and Nicholas Lewer, Bradford Non-Lethal Weapons Research Project Research Report No. 6, October 2004.
10. This is best exemplified by the problem nuclear weapons presented for IHL – a topic addressed in 1996 in an advisory opinion by the International Court of Justice. See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, ICJ Reports, 1996, p. 226.
11. Jonathan D. Moreno, “Medical ethics and non-lethal weapons,” American Journal of Bioethics, Vol. 4, 2004, p. W1 (noting that “NLWs seem to advance one of Augustine's requirements for just war: that only as much force be used as necessary for the task.”).
12. Well-known early critiques of NLWs include Malcolm Dando, A New Form of Warfare: The Rise of Non-Lethal Weapons, Brassey's, London, 1996
13. Nicholas Lewer and Steven Schofield, Non-Lethal Weapons: A Fatal Attraction?, Zed Books, London, 1997
14. Robin Coupland, “‘Non-lethal’ weapons: Precipitating a new arms race,” British Medical Journal, Vol. 315, 1997, p. 72.
15. For example, 1977 Additional Protocol I requires States Parties to assess the legality of any new weapons, means or methods of warfare. Additional Protocol (I) to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, UNTS, Vol. 1125, p. 3, Art. 36.
16. On this obligation, see Isabelle Daoust, Robin Coupland, and Rikke Ishoey, “New wars, new weapons? The obligation of States to assess the legality of means and methods of warfare,” International Review of the Red Cross, Vol. 84, No. 846, June 2002, pp. 345–363
17. Justin McClelland, “The review of weapons in accordance with Article 36 of Additional Protocol I,” International Review of the Red Cross, Vol. 85, No. 850, June 2003, pp. 397–415.
18. For discussion of the term “non-lethal weapons,” see Brian Rappert, Non-Lethal Weapons as Legitimating Forces? Technology, Politics and the Management of Conflict, Frank Cass, London, 2003, pp. 17–34.
19. In earlier writing, I referred to these arguments as the “selective change perspective.” Fidler, Technology, Politics and the Management of Conflict. (note 3), pp. 199–201.
20. In earlier writing, I called this position the “radical change perspective.” Technology, Politics and the Management of Conflict., pp. 201–204.
21. Robin Coupland, ‘“Calmatives’ and ‘incapacitants’: Questions for international humanitarian law brought by new means and methods of warfare with new effects?,” in Davison and Lewer 2004, Technology, Politics and the Management of Conflict. (note 11), p. 35, p. 38 (“Another major concern in relation to ‘non-lethal’ weapons is that their proponents propose they be used by soldiers against civilians when necessary.”).
22. Jefferson D. Reynolds, “Collateral damage on the 21st century battlefield: Enemy exploitation of the law of armed conflict, and the struggle for a moral high ground,” Air Force Law Review, Vol. 56, 2005, p. 1, pp. 99–100 (“Perhaps most promising of all are non-lethal weapons that can be applied against enemy combatants commingled with civilians.”).
23. In earlier writing, I called this the “compliance perspective.” Fidler, Air Force Law Review. (note 3), pp. 198–199.
24. “Non-lethal’ weapons, the CWC and the BWC,” CBW Conventions Bulletin, No. 61, September 2003, p. 1 (arguing that “as investment mounts in emergent ‘non lethal weapons’ (NLW) technologies, it becomes increasingly urgent that the threat they pose to the CWC and BWC regime be recognised.”).
25. Jean-Marie Henckaerts, “Study on customary international humanitarian law: A contribution to the understanding and respect for the rule of law in armed conflict,” International Review of the Red Cross, Vol. 87, No. 857, March 2005, p. 175, p. 198 (stating that, under customary IHL, “[t]he parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians.”).
26. International Review of the Red Cross., p. 204 (stating that, under customary IHL, “[t]he use of means and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering is prohibited.”).
27. Fidler, International Review of the Red Cross. (note 2), p. 62 (describing studies at the end of the 1990s which concluded that no existing NLWs met criteria for qualifying as “non-lethal”).
28. For more recent descriptions of health impact issues, see Lewer and Davison, International Review of the Red Cross. (note 11), p. 48–49
29. Davison and Lewer 2005, International Review of the Red Cross. (note 11), p. 28.
30. Some NLW advocates have expressed frustration at the attention paid to the lack of empirical data on the human effects of NLWs. See Davison and Lewer 2005, International Review of the Red Cross. (note 11), p. 21 (reporting on NLW advocate John Alexander's dismissal of “concerns over insufficient data about the human effects of NLWs.”).
31. NATO, International Review of the Red Cross. (note 13): “Neither the existence, the presence nor the potential effect of Non-Lethal Weapons shall constitute an obligation to use Non-Lethal Weapons, or impose a higher standard for, or additional restrictions on, the use of lethal force.”
32. But see Davison and Lewer 2005, International Review of the Red Cross. (note 11), p. 27 (describing NLW legal expert David Koplow arguing that the current state of international law on this issue “was unlikely to ‘hold’ ” and predicting “that in the future NLWs would indeed raise the threshold for use of lethal force.”).
33. Alexander Kelle, “Science, technology and the CBW control regimes,” Disarmament Forum, 2005, p. 8, p. 10.
34. For a report on health problems suffered by the hostage survivors two years later, see Anna Rudnitskaya, “Nord-Ost tragedy goes on,” The Moscow News, Issue No. 41,2004, at (last visited 22 June 2005).
35. Henckaerts, The Moscow News. (note 25), p. 203 (stating that, under customary IHL, “[attacking persons who are recognized as hors de combat is prohibited.”).
36. Independent Commission of Inquiry Must Investigate Raid on Moscow Theater: Inadequate Protection for Consequences of Gas Violates Obligation to Protect Life, Human Rights Watch, 30 October 2002, at (last visited 20 June 2005).
37. Human Rights Watch., Art. 11.9(d).
38. See, e.g. Nonlethal Technologies: Progress and Prospects, Independent Task Force, Council on Foreign Relations, New York, 1999, at (last visited 22 June 2005), arguing, in connection with chemical and biological weapons, that US security might be enhanced by modifying treaties.
39. Russell Glenn, “Separating the wheat from the chaff: Non-lethal capabilities in future urban operations”, paper presented at Jane's 4th Annual Non-Lethal Weapons 2000 Conference, 5 December 2000.
40. For example, an editorial in the Chemical Weapons Convention Bulletin focused on the law enforcement provision in Article II.9(d) and asked “what is ‘law enforcement’? …Whose law? What law? Enforced where? By whom?”. “New weapon technologies and the loophole in the Convention,” Chemical Weapons Convention Bulletin, No. 23, March 1994, p. 1.
41. An editorial in the CBW Conventions Bulletin returned to the issue after the Moscow incident and asked “what in the context of the Convention is ‘law enforcement’?”. ‘“Law enforcement’ and the CWC,” CBW Conventions Bulletin, No. 58, December 2002, p. 1.
42. The CWC does not prohibit the use of toxic chemicals for anti-materiel purposes in contexts in which the anti-materiel use of toxic chemicals does not adversely affect humans or animals. See Fidler, CBW Conventions Bulletin. (note 2), p. 72.
43. The interpretation of the CWC's law enforcement provision in this article is based on the author's previous analysis of this question, which was first presented to the open forum for non-governmental organizations at the CWC's First Review Conference in May 2003 and then in revised form as David P. Fidler, “Background paper on incapacitating chemical and biochemical weapons and law enforcement under the Chemical Weapons Convention”, 25 May 2005, prepared for a symposium on incapacitating biochemical weapons in June 2005.
44. Abraham Chayes and Matthew Meselson, “Proposed guidelines on the status of riot control agents and other toxic chemicals under the Chemical Weapons Convention”, Chemical Weapons Convention Bulletin, No. 35, March 1997, p. 13
45. Walter Krutzsch, “‘Non-lethal’ chemicals for law enforcement?” Berlin Information and Center for Transatlantic Security Research Note 03.2, April 2003, p. 4.
46. Some who have advocated restricting the range of toxic chemicals for law enforcement to those that meet the RCA definition admit that lethal doses of toxic chemicals can be used in capital punishment. Chayes and Meselson, Berlin Information and Center for Transatlantic Security Research. (note 44), p. 13
47. Krutzsch, Berlin Information and Center for Transatlantic Security Research. (note 44).
48. Art. 31.1 of the Vienna Convention on the Law of Treaties, 23 May 1969, UNTS, Vol. 1155, p. 331 (hereinafter Vienna Convention).
49. UNTS., Verification Annex, Part VI, A.2(a).
50. Walter Krutzsch and Ralf Trapp, A Commentary on the Chemical Weapons Convention, Martinus Nijhoff Publishers, The Hague, 1994, p. 418.
51. Art. 31.3(b), Vienna Convention.
52. Mark Wheelis, “Will the new biology lead to new weapons?” Arms Control Today, July/August 2004, p. 6, p. 8. This analysis does not suggest that State practice from one incident can settle interpretative questions raised by the CWC, but the State practice generated by the Moscow hostage situation is an important instance of State practice under Article II.9(d).
53. Art. II. 1 (a), CWC. Krutzsch and Trapp observed that “a State Party has not only to demonstrate that there was a legitimate intent for the production or stockpiling of a certain chemical, but also that the chemical is in fact of a type consistent with that purported intent, and that its quantity corresponds to the specified purpose.” Krutzsch and Trapp, Arms Control Today. (note 50), p. 27.
54. “As with any chemical incapacitants, the concentration of fentanyl in any particular part of the building will have been difficult to control, the effects of any given concentration of fentanyl on any particularly susceptible individual would not have been known, and achievement of a certain separation between the incapacitating and lethal effects of the drug in other words, discriminating between making people unconscious without stopping them breathing is very difficult.” Malcolm Dando, “The danger to the Chemical Weapons Convention from incapacitating chemicals, First CWC Review Conference Paper No. 4, March 2003, p. 4.
55. As Human Rights Watch commented on the Moscow hostage incident, “International law does not prohibit the use of potentially lethal force in operations to liberate hostages, but it requires that such force be ‘absolutely necessary’ and that all precautions be taken in both the planning and execution of such operations to minimize the loss of civilian life.” Human Rights Watch, First CWC Review Conference Paper No. 4. (note 32).
56. Art. 3, Universal Declaration of Human Rights, G.A. Res. 217A (III), UN Doc. A/810, 1948, p. 71 (hereinafter UDHR)
57. Art. 6, International Covenant on Civil and Political Rights, 19 Dec. 1966, UNTS, Vol. 999, p. 171 (hereinafter ICCPR).
58. Human Rights Committee, “General Comment No. 6, Article 6,” para. 3, in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev/1,1994, p. 6.
59. Human Rights Watch, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies. (note 32).
60. Commenting on the possible use of incapacitating chemicals for law enforcement purposes, the British government argued: “The decision to use any drug whether intended to induce a state of calm or complete unconsciousness requires knowledge of a subjects medical history, particularly the use of any prescribed or non-prescribed medication and any relevant medical conditions. There would also be considerable responsibility in terms of immediate and post-incident aftercare.” Quoted in Lewer and Davison, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies. (note 11), p. 47.
61. “To elicit the desired level of mood alteration without causing a dangerous level of respiratory depression (i.e. calming while maintaining consciousness) requires a tight control on dose level.” An Assessment of Non-Lethal Weapons Science and Technology, Committee for an Assessment of Non-Lethal Weapons Science and Technology, National Academies Press, Washington, D.C., 2003, p. 27.
62. Detailed analysis of these IHRL issues can be found in Fidler, An Assessment of Non-Lethal Weapons Science and Technology (note 42), pp. 33–44.
63. Malcolm Dando, “Scientific and technological change and the future of the CWC: The problem of non-lethal weapons,” Disarmament Forum, 2002, pp. 33–34.
64. Krutzsch and Trapp spelled out this choice: “The phrase ‘law enforcement including domestic riot control’ can be interpreted as meaning that there is riot control other than domestic riot control. On the other hand, that ‘non-domestic’ riot control would have to be an internationally accepted means of ‘law enforcement?’” Krutzsch and Trapp, Disarmament Forum. (note 50), p. 42 n. 45.
65. Shorter Oxford English Dictionary, Oxford University Press, Oxford, 1993, p. 820.
66. State practice indicates frequent use of RCAs by governments within their sovereign territories. See Davison and Lewer 2004, Shorter Oxford English Dictionary. (note 11), pp. 34–35 (recording uses of RCAs around the world for crowd control).
67. American Law Institute, Restatement (Third) of the Foreign Relations Law of the United States, American Law Institute Publishers, St. Paul, 1986, § 431(1). Under international law, a State has prescriptive jurisdiction with respect to (1) conduct, persons, or activities wholly or in substantial part within its territory or areas subject to its jurisdiction; (2) the activities, interests, status, or relations of its nationals outside as well as within its territory and areas subject to its jurisdiction; and (3) conduct outside its territory or areas subject to its jurisdiction (a) that has or is intended to have substantial effect within its territory, and (b) by persons not its nationals that is directed against the security of the State or against a limited class of other state interests.
68. Restatement (Third) of the Foreign Relations Law of the United States. § 402.
69. Even with such a basis, the exercise of the jurisdiction must also be reasonable. Restatement (Third) of the Foreign Relations Law of the United States., § 403.
70. Restatement (Third) of the Foreign Relations Law of the United States., p. 329.
71. Restatement (Third) of the Foreign Relations Law of the United States., Art. 2.7.
72. US State practice reflects this interpretation. The Commander's Handbook on the Law of Naval Operations lists as permissible the peacetime use of an RCA “[o]ff-base overseas for law enforcement purposes specifically authorized by the host government.” Steven F. Day, “Legal considerations in noncombatant evacuation operations,” Naval Law Review, Vol. 40, 1992, p. 45, p. 60.
73. As Chayes and Meselson noted, the CWC “does not state explicitly what sources of law states may enforce in invoking Article II.9(d). It seems possible, therefore, that states might wish to invoke international law to justify their ‘law enforcement’ activities.” Chayes and Meselson, Naval Law Review. (note 44), p. 15.
74. Oppenheim's International Law, 9th ed., Longmans, London, 1992, p. 11.
75. Oppenheim's International Law., Art. 51.
76. Art. 64, Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, 12 August 1949, UNTS, Vol. 75, p. 287 (hereinafter GC IV).
77. Commentary on Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War, ICRC, Geneva, 1958, p. 337.
78. An example of the use of an RCA to protect the occupying power's property is described in a report on “non-lethal” weapons sponsored by the Council on Foreign Relations. In response to civilians infiltrating a military base in Baghdad occupied by US military forces and attempting to loot property, US military personnel used various “non-lethal” weapons, including a RCA, oleoresin capsicum (OC), to clear the civilians from the compound. Independent Task Force, Non-Lethal Weapons and Capabilities, Washington, D.C., Council on Foreign Relations, 2004, p. 51.
79. See also Davison and Lewer 2005, Non-Lethal Weapons and Capabilities. (note 11), pp. 22–24 (describing use of various NLWs in US military operations in Iraq and Afghanistan).
80. Arts. 41, 82, Third Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949 UNTS, Vol. 75, p. 135 (hereinafter GC III).
81. UNTS., Art. 82.
82. UNTS., Art. 42.
83. Commentary on Geneva Convention III Relative to the Treatment of Prisoners of War, ICRC, Geneva, 1960, p. 247.
84. Executive Order 11850, Federal Register, Vol. 40, 1975, p. 161, paras, (a), (d)).
85. After being unable to prevent violent mobs from attacking monasteries in Kosovo in March 2004, Germany announced its intention to equip its peacekeepers with RCAs. Davison and Lewer 2004, Federal Register. (note 11), p. 34.
86. In the Ivory Coast, French military forces used RCAs against rioting civilians in the wake of the French military intervention that followed an attack on French peacekeepers by the country's air force. Davison and Lewer 2005, Federal Register. (note 11), p. 53.
87. Fidler, Federal Register. (note 2), p. 58.
88. US Senate Executive Resolution No. 75 - Relative to the Chemical Weapons Convention, Congressional Record, Vol. 143, p. S3373–01,17 April 1997, § 26A.
89. Congressional Record.
90. President Bush authorized US military forces to use RCAs in Iraq in 2003 under the circumstances described in Executive Order 11850. Neil Davison and Nicholas Lewer, Bradford Non-Lethal Weapons Research Project Report No. 4, 2003, p. 13.
91. The UK military indicated in March 2003 that it would use RCAs in Iraq solely for riot control purposes. Davison and Lewer 2004, Bradford Non-Lethal Weapons Research Project Report No. 4. (note 11), p. 34.
92. This situation has produced incentives for trying to fit new chemical compounds, such as malodorants, within the definition of an RCA, as the United States has done. Davison and Lewer 2003, Bradford Non-Lethal Weapons Research Project Report No. 4. (note 95), p. 10.
93. Such an approach will not, however, work for stronger incapacitating chemicals. As a National Research Council report observed, “[t]he use of calmatives had (…) been envisioned in connection with hostage situations and for use with ‘unmanageable’ prisoners, but not for riot situations in which incapacitated individuals might be trampled or crushed in the rioting.” Committee for an Assessment of Non-Lethal Weapons Science and Technology, Bradford Non-Lethal Weapons Research Project Report No. 4. (note 62), p. 27.
94. Executive Order 11850, Bradford Non-Lethal Weapons Research Project Report No. 4. (note 90), § (b)-(c).
95. Art. 1, Protocol (II) Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 10 June 1977, UNTS, Vol. 1125, p. 609.
96. “New weapon technologies and the loophole in the Convention,” UNTS. (note 38), p. 2.
97. Independent Task Force 1999, UNTS. (note 35).
98. Independent Task Force 2004, UNTS. (note 84), p. 31.
99. UNTS., p. 32.
100. UNTS., p. 1.
101. Davison and Lewer 2005, UNTS. (note 11), p. 26 (reporting comments of NLW legal expert David Koplow at the Non-Lethal Defense Conference VI in March 2005).
102. UNTS, (reporting a lawyer from the US Judge Advocate General as arguing that it was “more likely than not that the Chemical Weapons Convention prohibited these types [calmatives] of weapons systems.”).
103. Davison and Lewer 2005, UNTS. (note 11), p. 21 (reporting that, at the Non-Lethal Defense Conference VI in March 2005, NLW advocate John Alexander held that “the issue of chemical and biological weapons should be revisited for non-lethal weapons purposes arguing that international law prohibiting their development is ‘out-dated.’”).
104. Dando, UNTS. (note 54), p. 17.
105. One non-governmental organization has accused the United States of operating a secret chemical weapons programme in violation of the CWC. “US military operates secret chemical weapons program”, Sunshine Project Aerogramme, No. 2002/05, Sunshine Project, 24 September 2002.
106. NATO Research and Technology Organization, Non-lethal weapons and future peace enforcement operations, TR-SAS-040, November 2004, p. 3–6.
107. See, e.g., Preliminary Legal Review of Proposed Chemical-Based Nonlethal Weapons, US Department of the Navy Office of the Judge Advocate General, 30 Nov. 1997, p. 21 (“The Biological Weapons Convention and, more clearly, the domestic [US] implementing legislation, prohibit the development, production, stockpiling of biological agents for use as weapons. Biological agents are broadly defined by the statute so as to include agents used for anti-material purposes”).
108. See Committees of the North Atlantic Assembly, Non-lethal weapons, Lord Lyell (United Kingdom) General Rapporteur, 18 April 1997, Doc. No. STC (97)3, at § 39 (stating that “the use of biological agents to render fuels inert or destroy materials used in material equipment would not be permissible under the BWC even if the intent was non-lethal.”).
109. Massimo Annati, “Military use of chemical riot control agents: A case for legal assessment”, paper presented to the 3rd European Symposium on Non-Lethal Weapons, 10–12 May 2005, Ettlingen, Germany, p. 7 (arguing that malodorants are not toxic chemicals under the CWC)
110. Jared Silberman, “Non-lethal weaponry and non-proliferation,” Notre Dame Journal of Law, Ethics and Public Policy, Vol. 19, 2005, pp. 347–348 (US Navy lawyer arguing that “[o]ne thing that you may see on the horizon is the use of malodorants - a way to deny access to an enemy.”).
111. Davison and Lewer 2005, Notre Dame Journal of Law, Ethics and Public Policy. (note 11), p. 26.
112. Neil Davison, “Weapons focus: Biochemical weapons,” in Bradford Non-Lethal Weapons Research Project Report No. 5, May 2004, pp. 27–34
113. Wheelis, Bradford Non-Lethal Weapons Research Project Report No. 5. (note 52), pp. 6–13
114. Malcolm Dando, “The malign use of neuroscience,” Disarmament Forum, 2005, pp. 17–24
115. Kathryn Nixdorff, “Assault on the immune system,” Disarmament Forum, 2005, pp. 25–35.
116. See Davison and Lewer 2005, Disarmament Forum. (note 11), pp. 34–41 (reviewing controversies surrounding the Taser weapon).
117. NATO Research and Technology Organization, Disarmament Forum. (note 109), p. iii.
118. Disarmament Forum., pp. 4–5.
119. Davison and Lewer 2005, Disarmament Forum. (note 11), p. 21.
120. Disarmament Forum.
121. Independent Task Force 2004, Disarmament Forum. (note 84), p. 8.
122. See Steven Komarow, “Pentagon deploys array of non-lethal weapons”, USA Today, 24 July 2005, at (last visited 27 July 2005). At present, the pace at which such breakthroughs might happen is being slowed by a lack of funding. In the United States, commitments in Iraq and Afghanistan adversely affect prospects for Department of Defense support for development of NLW technologies.
123. The research and development burden will fall, therefore, on the private sector. See Davison and Lewer 2005, USA Today. (note 11), p. 22.