Academic journal article
By Kastan, Benjamin
Duke Journal of Comparative & International Law , Vol. 22, No. 2
Breathing through chemical smoke has been described as "drowning on dry land." (1) When one imagines chemical weapons, one often imagines that indelible image of Doughboys choking in trenches through a fog of yellow mustard gas. Though World War I did not see the first use of chemical weapons, it did produce the first large-scale industrialized chemical warfare. The effects of this kind of warfare live on in the conventions and taboos associated with chemical weapons. In 1993, the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (Chemical Weapons Convention, or CWC) was signed and later ratified by the U.S. and 187 other states. (2) The history of the legal regime surrounding chemical weapons (CW) reflects the long-term trend of banning weapons systems and technologies that are considered inhumane or undesirable. However, these legal regimes often have difficulty keeping up with the pace of technology and sometimes restrict the use of potentially more humanitarian weapons systems. One such example is the development of non-lethal weapons (NLW). (3) The CWC provides some leeway in this regard by allowing for the use of one type of non-lethal chemical weapons, Riot Control Agents (RCAs), in law enforcement.
The debate over RCAs mirrors in large part the debate over weapons conventions generally. Some military officials have advocated getting rid of weapons conventions in favor of internal reviews. (4) The most prominent example of this view can be found in the writing of General John Alexander, former Commander of the Joint Non-lethal Weapons Directorate (JNLWD). He argues that these conventions are fundamentally flawed because they focus on the technology rather than undesired results. (5) Advocates of the weapons conventions counter that so-called NLW are not so non-lethal. (6) They further contend that non-lethal chemical weapons, including RCAs, are dangerous to use on the battlefield because they are "threshold weapon[s]," which may lead to faster escalation to more lethal chemical weapons. (7)
This note will analyze how the CWC affects how the U.S. may use RCAs in a war zone and compares the result to that from a more basic review guided by the principles of the Law of Armed Conflict (LOAC)--a review grounded in the methods, rather than the means of warfare. I apply these rules to hypotheticals drawn from real world examples, and argue that the most significant differences between the means-based CWC approach and the methods-based LOAC approach are in the weapons available for use against combatants, not the impact on civilians. Nevertheless, I do not advocate withdrawal of the U.S. from the CWC regime because history suggests that using chemical NLW on the battlefield may make war no more humane than before. However, the example of RCAs within the means-based CWC regime demonstrates the limitations and the unintended consequences of an arms control regime focused on the "means" of warfare. A more basic LOAC approach that focuses on the methods of warfare, rather than the means, may better balance the humanitarian interests than flat weapons bans. Thus, I conclude that the U.S. should consider pursuing (1) new treaties to focus and elaborate on the rules governing methods of warfare rather than the means and (2) stronger internal reviews of new weapons systems around the world. By using widely-accepted standards, the international humanitarian system may prove better able to adapt to ever-changing technological realities.
I. THE HISTORY OF CHEMICAL WEAPONS AND RCAS
Chemical weapons have, for at least the last century, been viewed as a dishonorable and offensive kind of weapon. (8) However, chemical weapons of some sort have been part of warfare as far back as Thucydides, when "the Peloponnesians ... tried to reduce the town of Plataea with sulphur fumes in the fifth century BC." (9) The first international agreement aimed at restricting their use took place at the Hague Conference of 1899, where certain attendees agreed "to abstain from the use of projectiles the sole object of which is the diffusion of asphyxiating or deleterious gas. …