Chemical Weapons Convention

1. Tracking developments in techno-science: regulation of incapacitating chemical agents under the Chemical Weapons Convention Biochem 2030 1st October 2013Dr Michael CrowleyProject coordinatorBradford Nonlethal Weapon Research Project .

2. Chemical Weapons Convention Article 1: Each State Party to this Convention undertakes never under any circumstances: (a) To develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone; (b) To use chemical weapons; (c) To engage in any military preparations to use chemical weapons; (d) To assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Convention.

3. OPCW structures and mechanisms to review S&T • “We are facing a time of rapid advances in science and technology. New chemical compounds and production methods are constantly being researched and discovered, affording the global community many benefits but also bringing with them certain risks. The need to understand these changes and to bring them to the attention of our States Parties has never been more pressing. The Convention is a disarmament treaty tied closely to science, and the dynamic nature of science has a direct impact on our own work. It is, therefore, our responsibility to adequately assess and address new developments that may affect the implementation of the Convention.”Director General’s Opening statement, 16th Conference of the States Parties 29th November 2011 • “The Convention’s objective…will only be successfully achieved and maintained if advances in science and technology are effectively monitored and evaluated. To achieve this, the OPCW, building on its accomplishments so far, should improve and widen the scope of monitoring and evaluating developments in chemical science and technology and, at the same time, make full use of these developments to improve the quality of its own work.” Report of the advisory panel on future priorities of the Organisation for the Prohibition of Chemical Weapons, 25th July 2011.

4. OPCW structures and mechanisms to review S&TTechnical Secretariat • “…the Organisation’s scientific competence must be strengthened further. Therefore, resources should be set aside for the creation within the Technical Secretariat of adequate capacity to manage and support the systematic monitoring of relevant scientific developments. This could for example be a Science Adviser, or a small unit or part of an office working directly under the guidance of the Director-General and at the same time having access to all Divisions of the Technical Secretariat. Such a function could also serve as a permanent secretariat of the SAB and assist with the proposing and drafting of the agenda of the SAB and the compilation of documentation on scientific matters under review by the SAB. Furthermore, it could assist the Director-General and the Executive Council in assessing scientific and technological information made available to the Organisation, including the findings of the SAB.” • OPCW, Technical Secretariat, Ekeus Panel Report, (25th July 2011) paragraph 78.

5. OPCW structures and mechanisms to review S&TScientific Advisory Board – terms of reference • assess and report to the Director-General developments in scientific and technological fields relevant to the Convention; • as necessary, provide advice on proposed changes to the Annex on Chemicals originated by States Parties in accordance with Article XV of the Convention; • co-ordinate the efforts of the working groups temporarily established…; • as necessary, provide scientific and technological advice relevant to the Convention, including advice on technical matters related to co-operation and assistance, to the Technical Secretariat upon request; • upon the request of the Director-General, assess the scientific and technological merit of a present, or proposed, methodology for use by the Technical Secretariat in verification under the Convention; • …provide advice and make recommendations taking into account any relevant scientific and technological developments for the purpose of assisting the Conference in its review of the operation of the Convention; • assess and report on emerging technologies and new equipment which could be used on verification activities.

6. OPCW structures and mechanisms to review S&TConference of States Parties/Review Conference • “The Conference shall not later than one year after the expiry of the fifth and the tenth year after the entry into force of this Convention, and at such other times within that time period as may be decided upon, convene in special sessions to undertake reviews of the operation of this Convention. Such reviews shall take into account any relevant scientific and technological developments. At intervals of five years thereafter, unless otherwise decided upon, further sessions of the Conference shall be convened with the same objective.” • OPCW, Chemical Weapons Convention (1997) Article VIII, paragraph 22. • Under the Chemical Weapons Convention, the Review Conference will: “review scientific and technological developments that could affect the operation of this Convention...” • OPCW, Chemical Weapons Convention (1997) Article VIII, paragraph 21.

7. Incapacitating chemical agents (Incapacitants) Can be consideredas: substances whose chemical action on specific biochemical processes and physiological systems, especially those affecting the higher regulatory activity of the central nervous system, produce a disabling condition (e.g. can cause incapacitation or disorientation, incoherence, hallucination, sedation, loss of consciousness) or at higher concentrations, death. (Adapted from Pearson, A., Chevrier, M. and Wheelis, M. (eds) (2007) Incapacitating Biochemical Weapons, Lanham: Lexington Books).

8. Biochemical threat spectrum chart adapted from: Pearson, G. (2002) Relevant Scientific And Technological Developments For The First CWC Review Conference, University of Bradford.

9. Potential dangers from development/use of incapacitants • Dose-response problem • Erosion of norm against weaponization of toxicity • Proliferation and legitimization by states • Proliferation to, and misuse by, non-state actors • Camouflage offensive chemical weapons programmes • Escalation to lethal chemical weapons • Use as a lethal force multiplier • Facilitation of torture and other human rights violations • Militarisation of biology

10. Feasibility of “non-lethal” incapacitants • “The agent whereby people could be incapacitated without risk of death in a tactical situation does not exist and is unlikely to in the foreseeable future. In such a situation, it is and will continue to be almost impossible to deliver the right agent to the right people in the right dose without exposing the wrong people, or delivering the wrong dose.” • British Medical Association Board of Science, The use of drugs as weapons: The concerns and responsibilities of healthcare professionals, London: BMA, May 2007

11. Use of incapacitant by Russian Federation: Moscow theatre siege, October 2002

12. “The events in Moscow have opened up the potential for this area of research (i.e. incapacitating/immobilizing chemicals) to be explored in much greater depth. It would not be surprising if a number of countries were conducting more detailed and renewed research as a result.” Stanley, T. Director of the Anaesthesiology Research Laboratories at the University of Utah, 2004 “There is clearly an on-going attraction to “incapacitating chemical agents” but it is not easy to determine the extent to which this has moved along the spectrum from academia and industrial circles into the law enforcement, security and military apparatuses of States.” International Committee of the Red Cross, Incapacitating chemical agents, implications for international law, report of expert meeting, Montreux, 24th-26th March 2010

13. Advances in science and technology: agent development “In addition to drugs causing calming or unconsciousness, compounds on the horizon with potential as military agents include noradrenaline antagonists such as propranolol to cause selective memory loss, cholecystokinin B agonists to cause panic attacks, and substance P agonists to induce depression. The question thus is not so much when these capabilities will arise — because arise they certainly will — but what purposes will those with such capabilities pursue.” Wheelis, M. and Dando, M. Neurobiology: A case study of the imminent militarization of biology. International Review of the Red Cross, September 2005.

14. Advances in science and technology: agent development • “Recent years have seen a rapid advance in the discovery of new bioregulators, especially of the incapacitating ones, in the understanding of their mode of action and synthetic routes for manufacture. Some of these compounds may be many hundreds of times more potent than the traditional chemical warfare agents. Some very important characteristics of new bioregulators that would offer significant military advantages are novel sites of toxic action; rapid and specific effects; penetration of protective filters and equipment, and militarily effective physical incapacitation.” Boken, S. The toxicology of bioregulators as potential agents of bioterrorism, Arh Hig Tokiskol, 2005, Vol.56,pp.205-211.

15. Advances in science and technology: means of delivery • “New nanotechnologieshave allowed molecular conjugation or encapsulation that may permit unprecedented access [of drugs] to the brain”… Nanotechnologies can also exploit existing transport mechanisms to transmit substances into the brain in analogy with the Trojan horse” • Gas phase techniques/nanotechnologies:“pharmacological agents are not used as weapons of mass effect, because their large-scale deployment is impractical” as it is “currently impossible to get an effective dose to a combatant.” However the report states that “technologies that could be available in the next 20 years would allow dispersal of agents in delivery vehicles that would be analogous to a pharmacological cluster bomb or a land mine.” National Research Council 2008, Emerging Cognitive Neuroscience and Related Techniques

16. Chemical Weapons Convention Article 1: Each State Party to this Convention undertakes never under any circumstances: (a) To develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone; (b) To use chemical weapons; (c) To engage in any military preparations to use chemical weapons; (d) To assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Convention.

17. Article 2.2 defines a “toxic chemical” as: any chemical, regardless of its origin or method of production, which, through chemical action on life processes, can cause death, temporary incapacitation or permanent harm to humans…” Article 2.1(a), states that chemical weapons include all ‘‘toxic chemicals and their precursors, except where intended for purposes not prohibited, as long as the types and quantities are consistent with such purposes.’’ Under ‘‘purposes not prohibited’’ Article 2.9 includes: (c) “Military purposes not connected with the use of chemical weapons and not dependent on the use of the toxic properties of chemicals as a method of warfare” (d)‘‘Law enforcement including domestic riot control purposes,’’

18. Resolving ambiguities • Second CWC Review Conference, 2008, Swiss Government National Statement: “Switzerland fears that the uncertainty concerning the status of incapacitating agents risks to undermine the Convention. A debate on this issue in the framework of the OPCW should no longer be postponed.” • Pakistan Government National Statement:“We are particularly concerned about the question of what have on different occasions been called either non-lethal agents or incapacitating agents. Irrespective of the terminology used, it is important to bear in mind that the influence of advanced military technologies has often led to a search for exploiting real or perceived loopholes in legal instruments in order to circumvent their prohibitions. It would be unfortunate if the CWC were to be subjected to similar treatment. We believe this issue needs more attention than has so far been devoted to it.” • Swiss Government Working Paper called:“upon States Parties to consider adopting during the Second Review Conference a mandate for a discussion of, inter alia, an agreed definition of incapacitating agents, the status of incapacitating agents under the Convention, and possible transparency measures for incapacitating agents.” • Ambassador Pfirter, OPCW Director General Opening Statement, 14th CSP, 30th November 2009:“One other matter I wish to refer to is my perception about the need for the OPCW, at some stage in the not too distant future, to take stock of the growing interest on the part of some governments and civil society, in developments related to matters where the Convention might be—perhaps purposely—ambiguous or have lacunae, and which might impact on the ultimate effectiveness of the ban on chemical weapons. Incapacitants or non-lethal weapons is one such area when it comes to the exact types and quantities of chemicals and their permitted use. The Scientific Advisory Board could help shed some light on this matter and theThird Review Conference might offer the appropriate context for an initial formal look into it.”

19. Third Review Conference: SAB Report • “12…The Board considers the term “non-lethal” as inappropriate when referring to chemicals intended for use as incapacitants, because for all chemicals toxicity is a matter of dosage. The Board noted that chemicals considered having high safety margins in the context of controlled pharmaceutical use can have very low safety margins in the context of incapacitants when factors such as uneven dissemination, variability in human response, and the possible need for a rapid onset are required. It was also emphasised that the issue is not just what incapacitating chemical is used for law enforcement purposes, but how it is used, and the consequences such a use may have.” • “13… In the view of the SAB the technical discussion on the potential use of toxic chemicals for law enforcement purposes has been exhaustive. It may continue its discussions once technical information about specific candidate chemicals and/or dissemination systems is made available… • The SAB recommends that the Secretariat start preparations for verification activities, relevant to incapacitating chemicals, that could be required in an investigation of alleged use (IAU). Such preparations should include developing analytical methods and procedures, as well as collecting analytical reference data for the analysis of such chemicals. The Secretariat should invite laboratories in Member States to contribute to this effort.” • OPCW, Conference of the States Parties, Report of the Scientific Advisory Board on Developments in Science and Technology for the Third Review Conference RC-3/DG.1, 8th – 19th April 2013 29th October 2012, paragraph s12&13.

20. Third Review Conference Opening Statements • Switzerland was “particularly concerned about the issue of so-called incapacitating chemical agents… [and] fear[ed] that the silence and uncertainty surrounding the use of toxic chemicals for law enforcement purposes other than riot control agents risks eroding the Convention.” …a debate on this issue in the framework of the OPCW should no longer be delay[ed] until the next Review Conference, which is why my delegation has proposed language for this Conference’s final document. • Germany: “In the past years the issue of “toxic chemicals for law enforcement” has been extensively discussed in various fora outside the OPCW…There is now a substantial body of scientific analysis on developments [regarding “incapacitating chemical agents”] that have taken place since the entry-into-force of the Convention.”Citing, the Review Conference’s “specific mandate to “take into account any relevant scientific and technological developments””, Germany consequently recommended that the Conference should “through its final declaration initiate discussions on the issue of “toxic chemicals for law enforcement.” • UK: involved in the “ongoing discussions on the place of incapacitating chemical agents in the Convention, particularly given scientific change and the absence of any definition or common understanding of law enforcement.”UK highlighted reports of the Royal Society and the SAB, noted that “[b]oth have set out the scientific position as well as advancing our understanding of the complex issues surrounding this topic” and declared that the OPCW should “address such relevant issues and show leadership…UK recommended that the OPCW “should work together to establish a norm to discourage the use of chemicals more toxic than Riot Control Agents for law enforcement and consider transparency measures or limitations.” UK stated it: neither holds, nor is developing, any incapacitating chemical agents for law enforcement…and encourage[d] all other States Parties to state their positions on this question.”

21. Incapacitants and the Third Review Conference • “The Third Review Conference noted that the application of toxic chemicals, which through their chemical action on life process can cause temporary incapacitation, for purposes not prohibited by the Convention, including for law enforcement purposes, could be discussed by meetings of governmental experts of States Parties, operating on the basis of consensus. A factual report of such meetings, setting out the views expressed, would be transmitted to the Executive Council for further consideration.” • Draft incapacitants text for Third Review Conference Final Document • “Due to the increasing support we [have] experience[d] during the last months the momentum has been built. Consequently we will continue our efforts in order to further develop it.” • Closing Statement, Deputy Permanent Representative of Switzerland to the OPCW

22. Third Review Conference: Convergence • SAB Report: • “Advances considered under the general term “convergence of chemistry and biology” are accelerating at an unprecedented rate, particularly in synthetic biology. A feature of the technology is that it overlaps the remits of the Convention and the BWC, and some aspects, for example, bioregulators and their analogues, risk falling between the two. The SAB considers it important that the Secretariat expands its in-house knowledge of these developments. The SAB recommends that regular assessments of the implications for implementation of the Convention should be undertaken, using expertise within the SAB, the TWG on the convergence of chemistry and biology, and the Secretariat. The SAB further recommends that the Secretariat establish a process for increasing the interaction of the Secretariat and SAB with experts associated with the BWC, in particular with its Implementation Support Unit.” • Director General Response to SAB Report: • DG recommended that the Conference “acknowledge that... the convergence of chemistry and biology and other sciences is a development that will likely pose both challenges and opportunities for the Convention; and “note that this is a field of rapid advances and therefore requires systematic monitoring by the Secretariat and by the SAB.” He also recommended that the Conference “encourage States Parties to submit their own assessments of the convergence of the sciences” and “recommend increased interaction between technical experts in chemistry and biology.”

23. Third Review Conference Final Document: Convergence • The Review Conference: • “noted the increasing convergence of chemistry and biology, and welcomed the establishment of the SAB temporary working group on the convergence of chemistry and biology to explore and consider the potential implications of these advances to the Convention.” • Furthermore, the Conference: • “encouraged States Parties and the Secretariat to continue to keep the convergence of chemistry and biology under review, including through the SAB temporary working group on the convergence of chemistry and biology, and encouraged greater interaction between relevant experts” • OPCW, Report of the Third Review Conference, Part B, paragraphs 9.142 & 9.155(c)