There has been a good deal of speculation that Iraq may use chemical and biological weapons against US and allied forces during the course of the war. It is less known that US Defense Secretary Donald Rumsfeld has indicated that the US might also use chemical agents during the conflict – not chemical weapons as conventionally understood, but riot control agents like CS gas. The use of such gas during a military engagement would be against international law, according to legal experts.

During an appearance before the House Armed Services Committee on February 5, Rumsfeld was asked about the possibility of using “non-lethal technologies” if the US was confronted with armed civilians after an invasion of Iraq. He replied that the US was in “a very difficult situation,” because “there is a treaty that the US has signed.” He said that he and the Chairman of the Joint Chiefs of Staff, General Richard Meyers, had attempted to fashion rules of engagement such that the US could “live within the straitjacket that has been imposed on us,” and “still in certain instances be able to use non-lethal riot agents.”

The treaty that Rumsfeld was referring to is the 1993 Chemical Weapons Convention, which came into effect in 1997, and to which the United States is a party. Under the CWC, states are forbidden from developing, producing or using chemical weapons. States are however allowed to use toxic chemicals for a series of non-military purposes, including industrial, agricultural and other peaceful purposes, and “law enforcement including domestic riot control.” In addition, the Convention specifically states, “Each State Party undertakes not to use riot control agents as a method of warfare.”

Riot control agents are defined as chemicals that “can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure.”

According to the Pentagon, the CWC should be interpreted only to forbid the use of riot control gas during offensive military operations against enemy combatants. During his testimony, Rumsfeld said that there were circumstances in which the use of riot control agents in a military context was “perfectly appropriate” – he gave the examples of “when you are transporting dangerous people in a confined space,” like an airplane, or “when there are enemy troops, for example, in a cave in Afghanistan, and you know that there are women and children in there with them, and they are firing out at you, and you have the task of getting at them. And you would prefer to get at them without also getting at women and children, or non-combatants.” In Iraq, a comparable situation might arise where Iraqi soldiers or non-uniformed combatants are mixed in with civilians during urban fighting.

In a letter to the British newspaper The Independent on Sunday, published on March 9, Victoria Clarke, Assistant Secretary of Defense for Public Affairs, added that “use of these agents for defensive purposes to save lives would be consistent with the Chemical Weapons Convention.”

Legal experts and experts in chemical weapons control disagree. Professor Julian Perry Robinson, of the Harvard Sussex Program on chemical and biological warfare, said that the provisions of the CWC clearly forbid states that are party to it from using chemical agents (including CS gas and other similar agents) during armed conflict. U.S. forces would only be allowed to use riot control gas as an occupying power for law enforcement purposes, in any part of Iraqi territory over which they had established “effective control,” or for suppressing an uprising of prisoners.

Peter Herby, an arms and mines control specialist with the International Committee of the Red Cross, told the British Independent on Sunday, “We can say quite categorically that the use of chemical agents, whether riot control agents or lethal agents, in warfare would be entirely prohibited.”

In both these experts’ view, using CS gas when attacked by enemy combatants during active hostilities, or to separate enemy combatants from civilians during conflict, would be a violation of the Chemical Weapons Convention. They argue that the phrase “method of warfare” in the Convention refers to all engagements with enemy combatants during an armed conflict, whether offensive or defensive in nature.

Related Links

Nonlethal Chemical Weapons Pose Different Threat
By Elisa D. Harris
The Baltimore Sun, March 27, 2003

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