House of Commons - Foreign Affairs Committee

Global Security: Non-Proliferation - Foreign Affairs Committee Contents

Submission by Bradford Nonlethal Weapons Research Project[256]

INTRODUCTION

Bradford non-lethal weapons research project (BNLWRP) welcomes the opportunity to present a submission to the Foreign Affairs Select Committee inquiry examining the UK government's work in furthering the Foreign and Commonwealth Office's policy goal of countering weapons proliferation and its causes. In our submission we will focus upon the development, utilisation and potential proliferation of an emerging class of weapons—incapacitating biochemical weapons. We will examine the current limitations of the existing international control regime, specifically the Chemical Weapons Convention, to regulate incapacitating biochemical weapons. Finally, we will explore the role that the UK government can play in facilitating effective control of such weapons.

Bradford Non lethal weapons Research Programme

The Bradford non-lethal weapons research project (BNLWRP) was established at the Centre for Conflict Resolution, Department of Peace Studies, University of Bradford in 1995. The project's key objectives are to:

— Review and describe non-lethal weapons (NLWs), which are being developed and deployed.

— Identify and track defence and related research institutes involved in the development and manufacture of NLWs.

— Follow doctrine and policy debates related to the use of NLWs.

— Monitor the operational use of NLWs.

— Examine the impact of NLWs on international laws, arms treaties and conventions.

— Highlight the ethical and societal issues that surround the research, development, deployment and use of such weapons.

INCAPACITATING BIOCHEMICAL WEAPONS

Although there is currently no universally agreed definition, incapacitating biochemical agents can be described as 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 (eg can cause incapacitation or disorientation, incoherence, hallucination, sedation, loss of consciousness).[257] They are also called chemical incapacitatating agents, biotechnical agents, calmatives, and immobilizing agents. There are a wide variety of chemicals that could potentially be utilised as incapacitating biochemical agents and recent research has concentrated upon the following varieties of candidate agents: anaesthetic agents, skeletal muscle relaxants, opiod analgesics, anxiolytics, antipsychotics, antidepressants and sedative-hypnotic agents.[258] A number of these agents are currently in use by the medical or veterinary professions as tranquilising or anesthetising agents. It is important to differentiate incapacitating biochemical agents from another distinct class of chemical agents currently used by many states for law enforcement, namely the riot control agents (RCAs). Unlike incapacitating biochemical agents, riot control agents act peripherally on the eyes, mucous membranes and skin to produce rapid sensory irritation or disabling physical effects which disappear within a short time following termination of exposure.

Proponents of incapacitating biochemical weapons have promoted their development and use in certain law enforcement scenarios (such as hostage taking situations) where there is a need to rapidly and completely incapacitate single or a group of individuals without causing death or permanent disability. Incapacitating biochemical agents have also been raised as a possible tool in a variety of military operations, especially in situations where combatants and non-combatants are mixed.

Concerns relating to the development and use of incapacitating biochemical weapons

A broad range of observers including scientific and medical professionals, arms control organisations, international legal experts, human rights monitors and humanitarian organisations such as the International Committee of the Red Cross, as well as a number of states, are highly sceptical about the development and utility of incapacitating biochemical weapons, highlighting the fact that such weapons are not inherently "non-lethal", even if they were to be used with a non-lethal intent. As one leading US academic notes: "For all practical purposes, any biochemical weapon that can significantly incapacitate the vast majority of those exposed will very likely cause a significant number of deaths at the same time."[259] Similarly, a report by the British Medical Association states: "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."[260] This was grimly illustrated following the use of an incapacitating biochemical weapon by the Russian Federation in October 2002 (see case study below).

Even if all technical barriers to the development of a truly non-lethal incapacitating biochemical weapon were overcome, there are a number of serious risks that could follow from the development of such weapons. These include:

"…efforts to develop incapacitating biochemical weapons may well gather steam as more nations become intrigued by them and, observing the efforts of Russia and the United States, become convinced not only that effective and acceptably "non-lethal" incapacitating agents can be found, but that their use will be legitimized."

— Confusion between lethal and non-lethal chemical weapons: A state deploying or using a "non-lethal" incapacitating biochemical weapon during an armed conflict may be perceived by another party as having used a lethal chemical weapon. This in turn could initiate an escalating cycle of retaliation leading to actual use of lethal chemical agents in a theatre of war.

266

"Using existing drugs as weapons means knowingly moving towards the top of a "slippery slope" at the bottom of which is the spectre of "militarization" of biology, this could include intentional manipulation of peoples' emotions, memories, immune responses or even fertility"

267

REGULATION OF INCAPCACITATING BIOCHEMICAL WEAPONS UNDER THE CHEMICAL WEAPONS CONVENTION

Although there is a range of international law that is potentially applicable to incapacitating biochemical weapons, currently discussions on the regulation of such weapons have largely concentrated on the Chemical Weapons Convention.[268]

The Chemical Weapons Convention (CWC) entered into force on 29th April 1997 and, at the time of writing, it comprises 184[269] Member States that have either ratified or acceded to the Convention.[270] The Convention prohibits the development, production, stockpiling, transfer and use of chemical weapons.[271] In addition, it also requires that all existing stocks of chemical weapons[272] and chemical weapons production facilities[273] be destroyed. The implementation of the CWC is overseen and facilitated by the Organisation for the Prohibition of Chemical Weapons (OPCW).[274]

Although the Convention prohibits chemical weapons, it allows for the controlled peaceful use of toxic chemicals. Article 2.2 of the Convention 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 or animals."

275

The Convention therefore covers all toxic chemicals within its scope including chemical agents that could be used for so-called "non-lethal" chemical weapons, such as riot control agents and incapacitating biochemical agents.

To determine whether the use of a toxic chemical such as an incapacitating biochemical agent would be in conformity with the CWC, the intention or purpose for its use needs to be determined. Under Article 2.1 of the Convention, chemical weapons are defined as:

toxic chemicals or their precursors, except

where intended for purposes not prohibited by the Convention, as long as the types and quantities are consistent with such purposes

276

Consequently the "purposes not prohibited" are defined under Article 2.9, as:

Industrial, agricultural, research, medical, pharmaceutical or other peaceful purposes;

Protective purposes, namely those purposes directly related to protection against toxic chemicals and to protection against chemical weapons;

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;

Law enforcement including domestic riot control purposes."

277

Toxic chemicals such as incapacitating biochemical agents that are used for purposes not provided for in Article 2.9 (for example as a method of warfare) would then constituent a chemical weapon and be prohibited under the CWC.

Limitations of the CWC control regime

There are a number of limitations in the CWC and its current implementation which BNLWRP believes could seriously restrict its ability to effectively regulate incapacitating biochemical weapons.

Firstly, there are ambiguities in the terminology of certain articles detailing the obligations of State Parties under the Convention. For example, although use of toxic chemicals is permitted for law enforcement, there is no definition of "law enforcement" in the Convention. This, in turn, has led to questions being raised by international legal experts over the scope and nature of law enforcement activities permitted under the Convention both domestically and internationally.[278] Consequently, the extent to which incapacitating biochemical agents could be used for activities such as counter-terrorist and counter-insurgency operations is unclear. As Dando has stated: "…there is clearly a grey area where different interpretations of what is permitted are possible—when, in short, does law enforcement end and a method of warfare begin?"[279]

Secondly, whilst there are (albeit limited) declaration and transparency mechanisms in the Convention which require State Parties to declare the identity (but not the amount) of all chemicals held for riot control purposes,[280] there are no such declaration requirements for other "law enforcement purposes". States are therefore under no specific obligation under the Convention to provide the OPCW with information about the research, development and stockpiling of incapacitating biochemical agents.

Thirdly, although there are potentially strong consultation, investigation and fact-finding mechanisms[281] that could be applied to cases of concern relating to the development, production, stockpiling, transfer and use of chemical weapons (including incapacitating biochemical weapons) there has been a significant failure by State Parties to utilise them. This is exacerbated by the fact that there are currently no mechanisms for civil society to bring concerns about the development, production, stockpiling, transfer or use of such chemicals to the OPCW.

Finally, there has been a collective failure by the CWC State Parties and the OPCW policy making organs to effectively address (or even adequately discuss) the issue of incapacitating biochemical weapons.

BNLWRP believes that this combination of failures of design and action risks allowing state practice to determine the scope and nature of the regulation of incapacitating biochemical weapons under the Convention, without challenge. If this situation remains, there is a consequent danger that the restrictions on the use of incapacitating biochemical agents, and toxic chemicals more generally, will be fundamentally undermined. This in turn could lead potentially to the undermining of the Chemical Weapons Convention itself with consequent dangers of chemical weapon proliferation. As the Weapons of Mass Destruction Commission stated:

"There is an increasing interest among some governments to adopt a more flexible interpretation of the CWC rules on the use of incapacitating chemical weapons, even as a method of warfare, in order to use them in diverse situations. Such an interpretation, in the view of the Commission, would constitute a dangerous erosion on the fundamental ban on chemical weapons that the authors of the Convention intended."

282

Concerns about the potential threats of incapacitating biochemical weapon proliferation and misuse have been heightened following the use of such weapons by the Russian Federation and the failure of the international community to adequately respond to such use.

Case study: Russian Federation use of an incapacitating biochemical weapon

On the evening of 23 October 2002, a group of heavily armed Chechen separatists invaded the Dubrovka theatre in Moscow, taking more than 800 people hostage. They demanded the withdrawal of Russian armed forces from Chechnya and threatened to kill the hostages if their demands were not met. After three days, during which time three hostages had been shot by the hostage-takers, Russian security forces pumped an unidentified gas into the theatre, putting the hostages and some of the hostage takers into a deep sleep. Approximately 30 minutes later, members of the Russian spetsnaz special forces[283] stormed the theatre killing all of the hostage takers, including those unconscious from the gas. An estimated 129 hostages died during or following the raid, mostly as a result of the incapacitating gas used by the Russian forces.[284] An additional unknown number have suffered permanent disability.[285]

Treatment of the hostages who had been poisoned was delayed and compromised by the refusal of the Russian authorities to state publicly what type of gas had been used in the theatre for four days after the siege had ended. On 30 October 2002 the Health Minister Yuri Shevchenko finally identified the incapacitating agent as "a mixture of derivative substances of the fast action opiate Fentanyl.[286] Mr Shevchenko further stated that:"I officially declare: chemical substances which might have fallen under the jurisdiction of the international convention on banning chemical weapons were not used during the special operation."[287] However, the Minister refused to be more precise about the chemicals used even on 11 December 2002 when faced with a parliamentary question. He said it was a "state secret".[288] At the time of writing, the Russian authorities have still not stated officially exactly what chemical or chemicals were used.

The Moscow incident was not met with any significant public expressions of concern from the international governmental community. Indeed some governments, such as the USA,[289] supported Russia's actions. The NATO Research and Technology Organisation reviewed the Moscow incident favourably, stating that:

"Although it may seem excessive that 16% of the 800 hostages died from the "gas" exposure, still 84% survived. We do not know that a different tactic would have provided a better outcome. The use of a "sleeping gas" or "calmative" or "incapacitant" agent in this setting is a novel courageous attempt at saving the most lives. This counterterrorist action showed on the other hand that chemical "non-lethal" weapons are not always non-lethal."

290

Denmark, which then had the Presidency of the European Union, also praised Russia's actions. Denmark's prime minister, Anders Fogh Rasmssen, said the EU "commends the Russian government for exercising all possible restraint in this extremely difficult situation."[291]

At the time, the UK government appeared to give a rather more ambiguous response. In reply to a Parliamentary Question, Foreign Office minister Mike O'Brien stated: "Following inquiries by the United Kingdom and others, Russian authorities have announced that the gas used in ending the siege on a Moscow theatre, on Saturday 26 October, was based on Fentanyl, an opium based narcotic. Fentanyl is not a chemical scheduled under the Chemical Weapons Convention. Non-scheduled chemicals are not in themselves prohibited under the Convention for use in law enforcement, including domestic riot control purposes…" The Minister then went on to quote Mr Shevchenko's statement declaring that no banned chemical substances had been used.[292]

In April 2008 in correspondence with BNLWRP, the UK Ministry of Defence has been more forthright in its position:

"The Convention clearly provides for the use of toxic chemicals for law enforcement purposes. The Government made clear at the time that it regarded the use of an incapacitating agent during the Moscow theatre siege in 2002 as permitted under the Convention. I am not aware that any State Party expressed a different view."

293

Despite the serious immediate consequences and long-term implications of the first utilisation of an incapacitating biochemical weapon, the vast majority of states appeared to turn a blind eye to the actions of the Russian Federation. Even during the First Review Conference of the Chemical Weapons Convention, which took place during April-May 2003, just six months after the Moscow siege, State Parties failed to address the issue. Although three states—New Zealand,[294] Norway[295] and Switzerland[296]—did raise the issue of non-lethal weapons in their opening national statements to the Review Conference, there was no subsequent public discussion by the CWC State Parties and no mention made in the Review Conference Final Document.[297]

CONTEMPORARY RESEARCH AND DEVELOPMENT OF INCAPACITATING BIOCHEMICAL WEAPONS[298]

Whilst the international governmental community has refused to adequately address or even to discuss the issue of incapacitating biochemical weapons, there are indications that a number of countries have undertaken research programmes into such weapons.

In 2004, during an interview with BNLWRP the Director of the Anaesthesiology Research Laboratories at the University of Utah, who is reportedly close to the US incapacitating biochemical programme[299] stated that: "The events in Moscow have opened up the potential for this area of research (ie 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."[300]

Russian Federation

There are indications that research into incapacitating biochemical agents is an area that Russia intends to continue to work on, building upon the experiences gained following the Moscow incident..[301] In May 2005, for example, Russian researchers presented a paper describing the computer modelling of a scenario in which aerosolised chemical agents were introduced into a building where hostages were held captive. The paper states that:

"If the level of 95% efficiency is absolutely required to neutralize terrorists and to prevent mass destruction, there is no chance to eliminate hard consequences and fatalities. Calculations show that the majority of hostages can get serious poisoning and part of them—fatality. This is the cost of releasing if no other solutions left."

The researchers further note that:

"…the full solution [to this problem] demands the big intensive work of many scientific teams within several years"

302

Since the Moscow incident, there has been one further reported use of an incapacitating biochemical weapon by Russian Security Forces. On 13 October 2005, armed Chechen separatists launched attacks on the Russian town of Nalchik. Russian Special Forces were deployed in response. On the second day of fighting, Russian NTV reported that Russian Forces employed a "knockout gas" against the armed separatists who were holding two women hostage in a shop. There was no information about the nature of the chemical used.[303] However, it was reported that victims of the attack were administered an antidote.[304]

United States

The US has a long history of research into incapacitating biochemical agents.[305] There are indications that research was ongoing prior to, and continued after, the Moscow theatre siege. In 2003 the National Research Council (NRC) issued a report highlighting incapacitating chemicals as one of the major weapons technologies for further development.[306] Whilst the report highlighted concerns regarding compliance with the Chemical Weapons Convention (CWC), the National Research Council panel recommended "increase[d] research in the field of human response to calmatives", arguing: "Calmatives have potential as NLWs [non lethal weapons] in many types of missions where calming of individuals or crowds is needed".[307]

Previously, in fiscal year 2001 the National Institute of Justice (NIJ) had funded a three phase project on "non-lethal" weapons at the Institute for Non-Lethal Defense Technologies (INLDT) at Pennsylvania State University (PSU). Phase two of the project was to "…conduct an investigation of controlled exposure to calmative-based oleoresin capsicum."[308] Although publicly available information regarding this project is scarce, it apparently involved the combination of incapacitating biochemical agents with the chemical irritant oleoresin capsicum (commonly used in varieties of pepper spray) in order to produce more profound effects. In February 2003, a presentation by the Senior Program Manager for the NIJ Less-Than-Lethal Technology Program, indicated that the project had been reviewed by a liability panel and that work was progressing at Pennsylvania State University.[309]

The US Joint Non Lethal Weapon Department has funded research into the development of delivery systems designed to carry a variety of potential chemical payloads, including "markers, taggants, incapacitants, malodorants [and] OC/RCA," including long range mortars and airbursting grenades.[310] In its 2003 report the National Research Council panel also recommended that the US should "target efforts to develop chemical delivery systems".[311] There have also been indications of US interest in exploring the use of unmanned aerial vehicles (UAVs) to deliver "non-lethal" payloads including chemical agents at long distances.[312]

Although there have been reports that US Special Forces are equipped with a form of "knock-out" gas[313] these reports have not been substantiated. There is currently no publicly available evidence that the US has successfully developed or deployed weapons containing incapacitating biochemical agents for either military or police use.[314] Indeed, an unnamed US official interviewed by Arms Control Today following the Second CWC Review Conference stated that: "We have no programs to develop incapacitants and got rid of our stockpiles".[315] However, given the limited information released to the public since 2003, BNLWRP is unable to determine the nature of current US activities in this area.

Czech Republic

In 2005 evidence came to light that the Czech military were funding the development of biochemical incapacitating agents. At the 3rd European Symposium on Non-Lethal Weapons in Ettlingen, Germany in May 2005 a paper was presented entitled Pharmacological non-lethal weapons.[316] The research, to develop sedative and anaesthetic agent combinations for use as weapons, had been funded by the Czech Army under Project No: MO 03021100007. The Czech paper describes the results of experiments with rhesus monkeys over several years in which the researchers injected the animals with different mixtures of drugs to determine combinations and doses that would result in what they termed "fully reversible immobilization". One of the Czech researchers has also described testing on human subjects, with one combination of ketamine, midazolam and dexmedtomidine administered to ten nurses and a second combination of fentanyl, midazolam and dexmedtomidine given to patients prior to surgery.[317]

In a follow-up paper presented in May 2007 to the 4th European Symposium on Non-Lethal Weapons, Czech researchers describe how they "decided to test new combinations [of calmatives—drugs producing calm, non-violent behaviour] for suppression or complete abolition of aggressive behaviour."According to the researchers "All tested combinations resulted in macaques in reduction or complete loss of aggressiveness… The onset of effect was rapid and we achieved complete manipulability of the animal with low motoric sedation." The researchers claim that: "the results can be used to pacify aggressive people during medical treatment (mental disease), terrorist attacks and during production of new pharmacological non-lethal weapons."[318]

The Czech researchers have also investigated various delivery routes including testing of an aerosol route using rats and human volunteers, who were reported to have been children in hospital.[319] Subsequently the researchers reportedly have been exploring a number of weapon-delivery system options such as projectiles uploaded with formulations of the drugs containing dimethyl sulphoxide to enhance skin penetration.[320] One analyst has reported that "While Russian, Chinese and American scientists may have similar lines of study, the Czechs are brazen enough to go on scientific record… [M]ore than one American researcher connected with the military thinks [the] presentation is compelling."[321]

Other countries

Although there is no open source information describing specific current incapacitating biochemical agent programmes, there are indications that a number of other states are interested in exploring this issue.

NATO

In its report 2004 report outlining the utility of non lethal weapons in peace keeping operations, NATO's Research and Technology Organisation outlined seventeen "non-lethal technologies of interest", among these were "chemical technologies [that] could act on the central nervous system by calmatives, dissociative agents, [and] "equilibrium agents", and "by convulsives".[322]

France

In 2004, a non-governmental research organisation, the Sunshine Project, published a report entitled Biological and Biochemical Weapons Related Research in France.[323] The report described military research investigating the behavioural and cognitive effects of various psychoactive and anaesthetic compounds, however it noted that researchers did not find any indication of an incapacitating agent programme at that time.

China

In July 2005, the US Army Journal Military Review contained a speculative article by two Chinese analysts in which they claimed that "the times call for new kinds of weapons, and modern biotechnology can contribute such weapons".[324] They claimed that "War through the command of biotechnology" will "…lead to success through ultramicro, nonlethal and reversible effects…Modern biotechnology offers and enormous potential military advantage."[325] It is not clear what, if any, militarily applicable research or development China has undertaken in this area. However, there does appear to be some research and development of incapacitating biochemical agents for law enforcement devices, with one state-owned Chinese company promoting an apparent anaesthetic dart-firing gun.[326]

Although there is documentation indicating previous UK research into biochemical incapacitating agents from the late 1950s till the early 1970s,[327] there is no evidence of contemporary military research in this area. Furthermore, although proposals for utilising chemicals other than RCAs for UK law enforcement were reportedly considered, they were not implemented.[328] In January 2004, the UK's Northern Ireland Office Steering Group published the Patten report recommendations relating to public order equipment.[329] As part of its review, the steering group examined the use of "calmatives", but concluded that "use of calmatives in policing situations would not be a straightforward process. The decision to use any drug whether intended to induce a state of calm or complete unconsciousness requires knowledge of a subject's 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."[330] The Steering Group concluded that further research on calmatives was not required at present. However, they did recommend the continued monitoring of: "this area, focusing on international research programmes and future developments in delivery methods and potential tranquilising agents."[331]

Scientific and technological developments—the future threat

The brief survey above indicates that currently a number of states have initiated research programmes exploring incapacitating biochemical agents, whilst a larger number of states have at least shown an interest in this area.

Such activities are taking place in the context of extremely rapid advances in relevant science and technology, particularly genomics, synthetic biology, biotechnology, neuroscience and the understanding of human behaviour. For example, in 1999 a special meeting of the National Academies of Sciences and the Society of Neuroscience noted that:

"The past decade had delivered more advances than all previous years of neuroscience research combined."

332

Of course many of these advances have great potential to benefit mankind—for example in the development of more effective, safer medicines. As one expert has noted:

"We are at present in the midst of a golden age of biomedical research. We are currently engaged in two of the most important endeavours in the history of science and medicine. We are simultaneously mapping the human brain and the human genome…The achievements occurring on these two levels will meet one another some time within the next decade or perhaps two…Once mind and molecule meet, prevention is possible. Improvements in treatment are certain."

333

However, there is also concern at the potential for the misapplication of the new capabilities for hostile purposes. Professor Matthew Meselson of Harvard University has stated:

"During the century ahead, as our ability to modify fundamental life processes continues its rapid advance, we will be able not only to devise additional ways to destroy life, but also be able to manipulate it including the processes of cognition, development and inheritance."

334

And he added:

"A world in which these capabilities are widely employed for hostile purposes would be a world in which the very nature of conflict had radically changed. Therein could lie unprecedented opportunities for violence, coercion, repression or subjugation…"

335

There are indications that the current advances in genomics, biotechnology, neuroscience, etc are being monitored by the military of certain states. As one review noted:

"Advances in discovery of novel bioregulators, especially bioregulators for incapacitation, understanding of their mode of operation and synthetic routes for manufacture have been very rapid in recent times…"

336

The review continued:

"Some of these compounds may be potent enough to be many hundreds of times more effective 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 military effective physical incapacitation."

337

Wheelis and Dando have surveyed current developments and future trends in neurobiology and believe that there are indications that military interest is already directed towards the next generation of biochemical agents affecting the brain and central nervous system:

"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."

338

CURRENT DEBATE CONCERNING INCAPACITATING BIOCHEMICAL WEAPONS

There are some indications that the international community is at last beginning to discuss the issue of incapacitating biochemical agents. For example, during the January 2008 meeting of the International Union of Pure and Applied Chemistry that was held in preparation for the CWC Second Review Conference, the issue of non-lethal (bio)chemical weapons was discussed in some depth. The IUPAC Report concluded:

"The risks associated with advances in science and technology would increase significantly, should dedicated [chemical weapon] programmes be able to take advantage of them. There is, therefore, good reason…to carefully assess the CWC compatibility of the development of devices that use toxic chemicals for law enforcement purposes (including so called 'nonlethal weapons')."

339

A briefing document circulated by the OPCW Director General to all State Parties before the Second Review Conference stated that: "the SAB [OPCW Scientific Advisory Board] noted again the question of the use of incapacitating chemicals for law enforcement, pointing to the possibility that new compounds might be discovered that more closely fit the profile required of such agents…The Director-General wishes to add that some aspects of the development of means of delivery of such incapacitants for law-enforcement purposes might be difficult to distinguish from aspects of a chemical weapons development programme. If States Parties find it desirable to evaluate the broader implications of the use of incapacitants for law-enforcement purposes, the Second Review Conference could offer an opportunity to initiate such an evaluation, and the SAB's observations might help in such an endeavour.[340]

During the Second Review Conference, a number of State Parties raised concerns about incapacitants and other non-lethal weapons, with the Swiss Government declaring that: "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."[341] Switzerland also presented a formal National Working Paper on incapacitating biochemical agents, the first time that any state had done so at a CWC Review Conference. The Swiss Working Paper concluded by calling: "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."[342]

Because of the EU's working practices, the UK did not present an individual statement to the Second Review Conference, but rather adhered to the EU joint statement which was made on behalf of the EU by its then president, Slovenia.[343] Unfortunately, the EU joint statement made no explicit reference to incapacitating biochemical weapons.

However, the UK government did outline its position with regard to incapacitating biochemical weapons in a statement to the House of Lords on 21 April 2008.

In response to a Parliamentary Question by Lord Avebury,[344] Baroness Taylor of Bolton, the Parliamentary Under-Secretary of State, Ministry of Defence stated that:

"The issues surrounding so-called incapacitating biochemical weapons and their potential impact on the Chemical Weapons Convention are highly complex and most states party to the convention have yet to express clear ideas on the implications for the convention. The UK believes that thorough study of the complex technical and legal implications is required and therefore does not consider the issue ready for detailed discussion at the second review conference. But we are willing to examine, with other states party to the convention, the options for taking forward work after the conference, if it appears that consensus on how to move forward seems achievable, and if a suitable mechanism and scope for discussions can be decided."

345

In correspondence with the BNLWRP, the UK Ministry of Defence elaborated upon the issues that such a discussion process might cover: "We would wish to consider the options carefully with other interested States Party. Key areas that future work might address include agreement on definitions and scope, consideration of possible limitations on the use of toxic chemicals for law enforcement, and whether any measures to improve transparency are appropriate or practicable."[346]

During the Review Conference, Switzerland put forward language on incapacitating biochemcial agents for inclusion in the Review Conference Final Document. Although this language gained widespread support from State Parties, it was removed "at the last minute" due to the objection of Iran.[347]

THE ROLE OF THE UK IN COMBATING THE PROLIFERATION AND MISUSE OF INCAPACITATING BIOCHEMICAL WEAPONS

Incapacitating biochemical weapons and the UK government's National Security Strategy

BNLWRP notes the inclusion in the UK National Security Strategy of sections relating to chemical and biological weapons, including the following threat assessment:

" A number of states retain the ability to produce chemical and biological weapons. Again, we do not judge that they currently pose a direct threat to the United Kingdom, but we will continue to monitor their ability to produce weapons, the development and proliferation of potential delivery mechanisms, and the possibility of material falling into the hands of terrorists."

348

Furthermore, BNLWRP welcomes the UK government's commitment to countering the threat of chemical and biological weapons. Specifically its adoption of an "integrated, multilateral approach to tackling chemical and biological weapons." This approach incorporates commitments to:

"work to strengthen international conventions and to press possessor states to meet the agreed 2012 deadline for the destruction of chemical weapons; strengthen the international verification regime; work with experts to minimise the risk of misuse of commercial material; and seek to reduce the risk of CBRN material, including commercial material, falling into the hands of failed and failing states or terrorists, through strengthening codes of conduct and export control regimes, and improving the international monitoring architecture."

349

However, despite these important commitments there is no specific reference made to incapacitating biochemical weapons anywhere within the National Security Strategy in terms of threat assessment nor with regard to measures combating the dangers of proliferation and misuse of such weapons.

Although there does not appear to be an immediate direct threat of the use of such weapons against the UK or its armed forces in the short term, the ongoing research and development of such weapons by certain states is of concern and we believe does present a potential security challenge, particularly if such research and development were to proliferate. In this regard, BNLWRP notes that the National Security Strategy states that:

"Wherever possible we will tackle security challenges early. We are committed to improving our ability to scan the horizon for future security risks, and to developing our capabilities for preventative action. The most effective way to tackle all the major security challenges involves early engagement."

350

BNLWRP RECOMMENDATIONS

Given the current levels of research into incapacitating biochemical weapons, the future trajectory of such research, the potential for proliferation and misuse of such weapons and the potential danger to the integrity of the Chemical Weapons Convention, BNLWRP recommends that the UK government should develop specific responses to meet this security challenge as a matter of urgency. These should include:

1. Informal inter-governmental mechanism

Despite growing recognition of the need to regulate incapacitating biochemical agents, the Second CWC Review Conference did not agree a formal mechanism for CWC State Parties to collectively address this issue. BNLWRP therefore recommends that the UK together with interested CWC State Parties, such as Switzerland, should initiate an informal intergovernmental mechanism to address this issue. BNLWRP believes that this process could usefully:

— Develop proposals for a definition of incapacitating biochemical agents.

— Explore the status of incapacitating biochemical agents under the CWC.

— Reaffirm and define the CWC prohibition on the use of all toxic chemicals—including incapacitating biochemical agents—as a method of warfare.

— Explore the CWC limitations on the use of toxic chemicals—including incapacitating biochemical agents—for law enforcement.

— Explore the CWC limitations on the development, transfer and use of munitions and delivery devices for toxic chemicals including incapacitating biochemical agents.

— Propose options for CWC reporting and transparency measures for toxic chemicals—including incapacitating biochemical agents—used for law enforcement.

— Explore the limitations on the development, transfer and use of incapacitating biochemical agents arising from existing obligations under other relevant treaties specifically the Biological Weapons Convention, the Single Convention on Narcotic Drugs and the UN Convention on Pyschotropic Substances, as well as relevant aspects of international humanitarian law and international human rights law.

Given the multifaceted and multidisciplinary nature of the issues surrounding incapacitating biochemical agents, BNLWRP believes that it is important that relevant experts from governmental, intergovernmental and non-governmental scientific, medical, legal, law enforcement, security, human rights and humanitarian communities contribute to these discussions.

Recommendations from this process should then be submitted to the relevant policy making organs of the Chemical Weapons Convention, with the aim that the issue of incapacitating biochemical weapons be formally addressed at a Conference of State Parties and subsequently the Third CWC Review Conference. If it is deemed appropriate, recommendations from this process should also be submitted to the relevant policy making organs and meetings of other treaty bodies including the Biological Weapons Convention.

Given the importance and complexities of the issue, BNLWRP believes that the UK should begin consultation with possible partners, including Switzerland, as soon as possible.

2. Utilising existing CWC consultation, investigation and fact-finding mechanisms

The UK government should seek relevant information from those CWC State Parties reportedly undertaking research into incapacitating biochemical agents that will demonstrate that their activities are in conformity with the CWC and relevant international law. Given the Russian Federation's reported use of incapacitating biochemical agents on two occasions, the UK should seek clarification regarding its presumptive stockpile of incapacitating biochemical agents, the anticipated uses to which they might be put, and the political and legal controls on their deployment and use. If bilateral consultations with the Russian Federation and other relevant states are not fruitful, the UK should consider a formal request under Article IX of the CWC.

3. Transparency and public accountability with regard to UK policy and practice on incapacitating biochemical agents

Given the previous record of UK research into incapacitating biochemical agents, BNLWRP recommends that the UK government make a statement to Parliament describing current UK policy with regard to research, development, transfer and use of such agents by the UK for law enforcement, military or other purposes. This statement should highlight any relevant research regarding such agents currently taking place or planned in the UK.

In addition, the UK government should report to Parliament on its current strategy and activities for combating the proliferation and misuse of incapacitating biochemical weapons.

The Foreign Affairs Select Committee, possibly in conjunction with the Defence Select Committee and Home Affairs Select Committee, should consider undertaking a review of UK policy and practice with regard to incapacitating biochemical agents. Such a review would encompass the UK's activities in combating proliferation and misuse of incapacitating biochemical agents as well as investigating any relevant research activities the UK has undertaken into such agents.

6 November 2006

http://news.bbc.co.uk/today/hi/today/newsid_7471000/7471743.stm; Dando, M. and Furmanski, M. (2006) Midspectrum Incapacitant Programs. In: Wheelis, M., Rózsa, L., and Dando, M. (Eds). Deadly Cultures: Biological Weapons Since 1945. Cambridge: Harvard University Press; Davidson, N., "Off the Rocker" and "On the Floor": The Continued Development of Biochemical Incapacitating Weapons, Bradford Science and Technology Report No. 8.