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CWC: Experts Differ on Whether Russian Hostage Rescue Violated Treaty By David Ruppe A top Russian health official said today that the chemical substance delivered included the opioid fentanyl, which is used widely in medicine as an anesthetic. A German health official said analyses in Munich suggest that the substance also included another anesthetic called halothane. Russian authorities stormed a Moscow theater Saturday shortly after the incapacitating agent was used and shot the Chechen hostage-takers, who had killed prisoners and had threatened to blow up the building. Authorities said 118 hostages died as a result of exposure to the agent but more than 600 survived (see GSN, Oct. 29). “The Russians were in my mind not in violation of the Chemical Weapons Convention,” said Jean Pascal Zanders, leader of the Chemical and Biological Warfare Project of the Stockholm International Peace Research Institute. Others are not as sure. “I think it is a potential violation because … we know it had persistent effects,” said Jonathan Tucker, director of the Chemical and Biological Weapons Nonproliferation Program at the Monterey Institute of International Studies. The differences of view can be traced to interpretations of the language in the 1993 treaty. Some experts, including Tucker, contend that a violation occurred, arguing that the substance was used as a riot control agent with results more damaging than allowed by the treaty. They cite a treaty provision titled “Purposes Not Prohibited Under This Convention,” which allows the use of only certain riot control agents for law enforcement purposes. The treaty defines a riot control agent as one that rapidly produces sensory irritation or disabling physical effects “which disappear within a short time following termination of exposure.” In addition, the treaty’s Schedule 1 chemicals are banned from legal riot control use. Such chemicals, listed in a treaty annex, are considered to pose the highest risk for use in chemical weapons. “If it persists for several hours or days, that is an incapacitating agent, which is banned by the convention,” Tucker said. In his view, the effects of the agent should last no longer than an hour. “The only agents which are permissible for law enforcement use are those that fit the definition of a riot control agent in the Chemical Weapons Convention,” said Edward Hammond, co-director of the Sunshine Project, a nongovernmental organization that has alleged that the United States is violating the chemical and biological weapons conventions by researching and developing certain nonlethal agents (see related GSN story, today). In a recent interview for the Washington Post, Elisa Harris, a chemical weapons expert at the University of Maryland and former staff member at the National Security Council, also raised the possibility of a violation if Russian authorities “used something other than tear gases in this scenario.” Another Interpretation Other experts interpret the same treaty provision differently. They say the Russian operation most certainly was law enforcement, though not riot control, and that the provision allows for chemicals to be used for law enforcement purposes other than riot control, without specifying what those purposes or chemicals might be used. They cite the treaty language, “Law enforcement including domestic riot control purposes,” and say the word “including” implies there are law enforcement purposes allowed other than riot control. A classic example of such a purpose cited is executions for capital crimes, for which some U.S. authorities use a lethal gas. “While it remains to be seen whether the Moscow theater use of gas was allowable for ‘riot control purposes,’ it could be allowable as ‘law enforcement,’ wrote Harvard professor Matthew Meselson, a co-director of the Harvard Sussex Program on Chemical and Biological Warfare Armament and Arms Limitation, in an e-mail Sunday. Zanders agrees. “The restrictions on the nature of the agent in terms the duration of the effects, or whether they are listed in the schedules or not, do not apply to law enforcement situations, with the exception of Schedule 1 chemicals,” he said. Still, there appears to be some question about whether that interpretation is widely accepted in the international community. According to Daniel Feakes, a researcher with the Harvard Sussex program at the University of Sussex, the British government in written comments to Parliament in 1992 on the treaty interpreted the criteria for using riot control agents to apply to apply to all law enforcement uses. Foreign Minister Douglas Hogg wrote states parties “will be entitled to use toxic chemicals for law enforcement, including domestic riot control purposes, provided that such chemicals are limited to those not listed in the schedules to the convention and which can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure.” “The way I read the answer is that the UK government (in 1992) interprets the CWC criteria for chemicals for riot control purposes as ALSO applying to the broader category of chemicals for law enforcement purposes,” Feakes wrote in an e-mail to colleagues posted on the Internet. Hogg’s interpretation, Feakes said, implies the use of hydrogen cyanide for capital crime executions would not meet the treaty’s criteria since that agent is listed on one of the treaties schedules, or lists of chemicals for which varying restrictions apply. Feakes’ research so far has turned up no additional comments by the British government further clarifying that view, or similar comments by other governments, and he said there could be a possibility the government was not precise in its language. “To my mind there hasn’t been much discussion of that since 1993 or since the treaty came into force,” he said. “You’ve always got to think that it wasn’t considered as carefully as it would be,” he said. Was the Material Declared? The Organization for the Prohibition of Chemical Weapons, responsible for implementing the treaty, along with the United States and other countries, were pressing Russia for information in the chemical or chemicals used. German, British and possibly other authorities had separately been analyzing chemical traces collected from their citizens who were rescued by Russian authorities. U.S. officials reportedly said Tuesday they believed fentanyl was used. A German medical expert in Munich told reporters today traces of halothane, an anesthetic agent often used in combination with opioids, were found on one victim. He said it was likely used in combination with some other substance. Even if the treaty did not ban the agent or agents used, Russian authorities may yet have committed a violation if the material was not declared to be in their stocks for such purposes, said Amy Smithson, a senior associate at the Henry L. Stimson Center. “If they used an incapacitating agent that they had not declared to the international inspection agency as having on hand for these types of purposes, then they might run afoul of the international community,” she said. “The first question to ask according to the treaty is did Russia declare this is one of the incapacitating agents it had on hand,” she said. It does not appear that fentanyl was declared by Russia, at least not as of last year. An annex to the 2001 Organization for the Prohibition of Chemical Weapons annual report provides a list of the chemicals declared by members for riot control purposes and fentanyl was not included. If Russian authorities grabbed the agent or agents off the shelf of a medical facility that would also have been a violation, she said. Feakes said, however, that Russian authorities were not required to pre-declare the agent used, because while the treaty requires declarations for riot control agents, “nowhere in the CWC are states parties required to declare for law enforcement purposes.” “Russia could have fentanyl for law enforcement purposes other than riot control, if in types and quantities consistent with this purpose, and not have to declare it to the OPCW,” he said. Possible Implications While Zanders believes the Russian operation, if it turns out they did not include use of any forbidden chemical, was not a violation, he also says the incident points out a potential problem with the convention as currently written. The absence of a definition of law enforcement agents used for purposes other than riot control, he said, “leaves a potential loophole in the convention.” “I think it’s of great concern because the Russian action is just one more illustration of what I would call a new series of contingencies — conflict situations that have emerged in which so called nonlethal technologies might be considered for use by police and military forces — and among them I see anti-terrorism operations but also peacekeeping operations, where peacekeeping troops might be responsible for civil order,” he said. “We are also approaching a very fuzzy borderline between such operations and actual warfare operations,” he said. Zanders hopes treaty parties will use the pact’s first review conference next spring to clarify the understanding of the phrase law enforcement and how toxic chemicals might be restricted with respect to peacekeeping, anti-terrorism and rescue of foreign nationals abroad. For further information, see: Pentagon Executive Summary of CWC OPCW List of Other Chemical Conventions Federation of American Scientists List of Chemical Weapon Agents
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