Hostname: page-component-78c5997874-lj6df Total loading time: 0 Render date: 2024-11-11T02:06:55.807Z Has data issue: false hasContentIssue false
  • English
  • Français

The meaning of Moscow: “Non-lethal” weapons and international law in the early 21st century

Published online by Cambridge University Press:  27 April 2010

David P. Fidler
Get access Rights & Permissions [Opens in a new window]

Abstract

At the intersection of new weapon technologies and international humanitarian law, so-called “non-lethal” weapons have become an area of particular interest. This article analyses the relationship between “non-lethal” weapons and international law in the early 21st century by focusing on the most seminal incident to date in the short history of the “non-lethal” weapons debate, the use of an incapacitating chemical to end a terrorist attack on a Moscow theatre in October 2002. This tragic incident has shown that rapid technological change will continue to stress international law on the development and use of weaponry but in ways more politically charged, legally complicated and ethically challenging than the application of international humanitarian law in the past.

Type
Means of Warfare
Information
International Review of the Red Cross , Volume 87 , Issue 859: Means of warfare , September 2005 , pp. 525 - 552
Copyright
Copyright © International Committee of the Red Cross 2005

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 The literature on NLWs is now voluminous. For one bibliography on NLWs compiled by the Air University Library at Maxwell Air Force Base, see Non-Lethal Weapons, August 2004, at <http://www.au.af.mil/au/aul/bibs/soft/nonlethal.htm>. Bibliography updates on NLWs are provided in the periodic Bradford Non-Lethal Weapons Research Project Reports, at <http://www.brad.ac.uk/acad/nlw/research_reports/> (last visited 22 June 2005).

2 Fidler, David P., “The international legal implications of ‘non-lethal’ weapons”, Michigan Journal of International Law, Vol. 21, 1999, pp. 51–100.Google Scholar

3 Fidler, David P., “‘Non-lethal’ weapons and international law: Three perspectives on the future”, Medicine, Conflict and Survival, Vol. 17, 2001, pp. 194–206.CrossRefGoogle Scholar

4 In 1999, I argued, for example, that” [g]iven the embryonic nature of ‘non-lethal’ weapons development and integration into military forces and strategies, much of the international legal analysis unfolds in a vacuum of precedent, which gives the analysis an abstract and, at times, speculative quality.” Fidler, op. cit. (note 2), p. 55.

5 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, 13 January 1993, UNTS, Vol. 1974, p. 317 (hereinafter CWC).

6 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, 10 April 1972, International Legal Materials, Vol. 11, 1972, p. 309 (hereinafter BWC).CrossRefGoogle Scholar

7 Arts. I.1 and II.2, CWC.

8 Art. I.5, CWC.

9 Protocol on Blinding Laser Weapons (Additional Protocol IV to the UN Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects of 1980), 13 October 1995, UN Doc. CCW/CONF.I/7, 12 October 1995.

10 NLWs were, of course, familiar to law enforcement agencies by the latter half of the 1990s because police and internal security forces had long used such weapons as plastic bullets, bean-bag rounds, riot control agents, water cannons, and batons. Law enforcement involvement and interest in NLWs seemed, however, to pick up at the same time military forces began to look more seriously at deploying these weapon technologies.

11 Lewer, Nicholas and Davison, Neil, “Non-lethal technologies: An overview,” Disarmament Forum, 2005, pp. 37–51Google Scholar; Davison, Neil and Lewer, Nicholas, Bradford Non-Lethal Weapons Research Project Research Report No. 7, May 2005Google Scholar; and Davison, Neil and Lewer, Nicholas, Bradford Non-Lethal Weapons Research Project Research Report No. 6, October 2004.Google Scholar

12 This is best exemplified by the problem nuclear weapons presented for IHL — a topic addressed in 1996 in an advisory opinion by the International Court of Justice. See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996,Google ScholarIQ Reports, 1996, p. 226.Google Scholar

13 Policy for Non-Lethal Weapons, US Department of Defense Directive No. 3000.3, para. C (9 July 1996). See also NATO Policy on Non-Lethal Weapons, NATO, 13 October 1999, at <http://www.nato.int/docu/pr/1999/p991013e.htm> (last visited 22 June 2005)(“Non-Lethal Weapons are weapons which are explicitly designed and developed to incapacitate or repel personnel, with a low probability of fatality or permanent injury, or to disable equipment, with minimal undesired damage or impact on the environment.”).

14 Moreno, Jonathan D., “Medical ethics and non-lethal weapons,” American Journal of Bioethics, Vol. 4, 2004, p. W1 (noting that “NLWs seem to advance one of Augustine's requirements for just war: that only as much force be used as necessary for the task.”).CrossRefGoogle Scholar

15 Well-known early critiques of NLWs include Dando, Malcolm, A New Form of Warfare: The Rise of Non-Lethal Weapons, Brassey's, London, 1996Google Scholar; Lewer, Nicholas and Schofield, Steven, Non-Lethal Weapons: A Fatal Attraction?, Zed Books, London, 1997Google Scholar; and Coupland, Robin, “‘Non-lethal’ weapons: Precipitating a new arms race,” British Medical Journal, Vol. 315, 1997, p. 72.CrossRefGoogle Scholar

16 For example, 1977 Additional Protocol I requires States Parties to assess the legality of any new weapons, means or methods of warfare. Additional Protocol (I) to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, UNTS, Vol. 1125, p. 3, Art. 36. On this obligation, see Daoust, Isabelle, Coupland, Robin, and Ishoey, Rikke, “New wars, new weapons? The obligation of States to assess the legality of means and methods of warfare,” International Review of the Red Cross, Vol. 84, No. 846, June 2002, pp. 345–363CrossRefGoogle Scholar; McClelland, Justin, “The review of weapons in accordance with Article 36 of Additional Protocol I,” International Review of the Red Cross, Vol. 85, No. 850, June 2003, pp. 397–415.CrossRefGoogle Scholar

17 For discussion of the term “non-lethal weapons,” see Rappert, Brian, Non-Lethal Weapons as Legitimating Forces? Technology, Politics and the Management of Conflict, Frank Cass, London, 2003, pp. 17–34.CrossRefGoogle Scholar

18 In earlier writing, I referred to these arguments as the “selective change perspective.” Fidler, op. cit. (note 3), pp. 199–201.

19 In earlier writing, I called this position the “radical change perspective.” Ibid., pp. 201–204.

20 Robin Coupland, ‘”Calmatives’ and ‘incapacitants’: Questions for international humanitarian law brought by new means and methods of warfare with new effects?” in Davison and Lewer 2004, op. cit. (note 11), p. 35, p. 38 (“Another major concern in relation to ‘non-lethal’ weapons is that their proponents propose they be used by soldiers against civilians when necessary.”).

21 Reynolds, Jefferson D., “Collateral damage on the 21st century battlefield: Enemy exploitation of the law of armed conflict, and the struggle for a moral high ground,” Air Force Law Review, Vol. 56, 2005, p. 1, pp. 99–100 (“Perhaps most promising of all are non-lethal weapons that can be applied against enemy combatants commingled with civilians.”).Google Scholar

22 In earlier writing, I called this the “compliance perspective.” Fidler, op. cit. (note 3), pp. 198–199.

23 “Non-lethal' weapons, the CWC and the BWC,” CBW Conventions Bulletin, No. 61, September 2003, p. 1 (arguing that “as investment mounts in emergent ‘non lethal weapons’ (NLW) technologies, it becomes increasingly urgent that the threat they pose to the CWC and BWC regime be recognised.”).

24 Center for Responsible Nanotechnology, Dangers of Molecular Manufacturing, at <http://www.crnano.org/ dangers.htm#arms> (last visited 22 June 2005), describing possible implications of nanotech weapons.

25 Henckaerts, Jean-Marie, “Study on customary international humanitarian law: A contribution to the understanding and respect for the rule of law in armed conflict,” International Review of the Red Cross, Vol. 87, No. 857, March 2005, p. 175, p. 198CrossRefGoogle Scholar (stating that, under customary IHL, “[t]he parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians.”).

26 Ibid., p. 204 (stating that, under customary IHL, “[t]he use of means and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering is prohibited.”).

27 Fidler, op. cit. (note 2), p. 62 (describing studies at the end of the 1990s which concluded that no existing NLWs met criteria for qualifying as “non-lethal”). For more recent descriptions of health impact issues, see Lewer and Davison, op. cit. (note 11), p. 48–49; Davison and Lewer 2005, op. cit. (note 11), p. 28.

28 Some NLW advocates have expressed frustration at the attention paid to the lack of empirical data on the human effects of NLWs. See Davison and Lewer 2005, op. cit. (note 11), p. 21 (reporting on NLW advocate John Alexander's dismissal of “concerns over insufficient data about the human effects of NLWs.” ).

29 NATO, op. cit. (note 13): “Neither the existence, the presence nor the potential effect of Non-Lethal Weapons shall constitute an obligation to use Non-Lethal Weapons, or impose a higher standard for, or additional restrictions on, the use of lethal force.” But see Davison and Lewer 2005, op. cit. (note 11), p. 27 (describing NLW legal expert David Koplow arguing that the current state of international law on this issue “was unlikely to ‘hold’ “and predicting “that in the future NLWs would indeed raise the threshold for use of lethal force.”).

30 Kelle, Alexander, “Science, technology and the CBW control regimes,” Disarmament Forum, 2005, p. 8, p. 10.Google Scholar For a report on health problems suffered by the hostage survivors two years later, see Rudnitskaya, Anna, “Nord-Ost tragedy goes on,” The Moscow News, Issue No. 41, 2004, at <http://english.mn.ru/english/issue.php?2004–41–2> (last visited 22 June 2005).+(last+visited+22+June+2005).>Google Scholar

31 Henckaerts, op. cit. (note 25), p. 203 (stating that, under customary IHL, “[a]ttacking persons who are recognized as hors de combat is prohibited.”).

32 Independent Commission of Inquiry Must Investigate Raid on Moscow Theater: Inadequate Protection for Consequences of Gas Violates Obligation to Protect Life, Human Rights Watch, 30 October 2002, at <http://www.hrw.org/press/2002/10/russia1030.htm> (last visited 20 June 2005).

33 Art. 1.5, CWC.

34 Ibid., Art. II.9(d).

35 See, e.g. Nonlethal Technologies: Progress and Prospects, Independent Task Force, Council on Foreign Relations, New York, 1999, at <http://www.cfr.org/pub3326/richard_l_garwin_w_winfield/nonlethal_technologies_progress_and_prospects.php#Report> (last visited 22 June 2005), arguing, in connection with chemical and biological weapons, that US security might be enhanced by modifying treaties.+(last+visited+22+June+2005),+arguing,+in+connection+with+chemical+and+biological+weapons,+that+US+security+might+be+enhanced+by+modifying+treaties.>Google Scholar

36 Glenn, Russell, “Separating the wheat from the chaff: Non-lethal capabilities in future urban operations”, paper presented at Jane's 4th Annual Non-Lethal Weapons 2000 Conference, 5 December 2000.Google Scholar

37 Art. II.9(d), CWC, which stipulates that” ‘Purposes Not Prohibited Under this Convention’ means: (…) (d) Law enforcement including domestic riot control purposes.”).

38 For example, an editorial in the Chemical Weapons Convention Bulletin focused on the law enforcement provision in Article II.9(d) and asked “what is ‘law enforcement’? …Whose law? What law? Enforced where? By whom?”. “New weapon technologies and the loophole in the Convention,” Chemical Weapons Convention Bulletin, No. 23, March 1994, p. 1.Google Scholar

39 An editorial in the CBW Conventions Bulletin returned to the issue after the Moscow incident and asked “what in the context of the Convention is ‘law enforcement'?”. “‘Law enforcement’ and the CWC,” CBW Conventions Bulletin, No. 58, December 2002, p. 1.Google Scholar

40 Another factor enhancing the importance of the meaning of the CWC's law enforcement provision was the convening in the spring of 2003, approximately six months after the Moscow incident, of the First Review Conference of the CWC. When CWC States Parties failed at that Conference to address the issues raised by the Moscow crisis, the controversy deepened.

41 The CWC does not prohibit the use of toxic chemicals for anti-matériel purposes in contexts in which the anti-matériel use of toxic chemicals does not adversely affect humans or animals. See Fidler, op. cit. (note 2), p. 72.

42 The interpretation of the CWC's law enforcement provision in this article is based on the author's previous analysis of this question, which was first presented to the open forum for non-governmental organizations at the CWC's First Review Conference in May 2003 and then in revised form as Fidler, David P., “Background paper on incapacitating chemical and biochemical weapons and law enforcement under the Chemical Weapons Convention”, 25 May 2005Google Scholar, prepared for a symposium on incapacitating biochemical weapons in June 2005.

43 Art. II.7, CWC, (defining an RCA as “[a]ny chemical not listed in a Schedule, which can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short period of time following termination of exposure”).

44 Chayes, Abraham and Meselson, Matthew, “Proposed guidelines on the status of riot control agents and other toxic chemicals under the Chemical Weapons Convention”, Chemical Weapons Convention Bulletin, No. 35, March 1997, p. 13Google Scholar; Krutzsch, Walter, “‘Non-lethal’ chemicals for law enforcement?” Berlin Information and Center for Transatlantic Security Research Note 03.2, April 2003, p. 4.Google Scholar

45 Some who have advocated restricting the range of toxic chemicals for law enforcement to those that meet the RCA definition admit that lethal doses of toxic chemicals can be used in capital punishment. Chayes and Meselson, op. cit. (note 44), p. 13 and Krutzsch, op. cit. (note 44).

46 Art. 31.1 of the Vienna Convention on the Law of Treaties, 23 May 1969, UNTS, Vol. 1155, p. 331 (hereinafter Vienna Convention).

47 Article II.2 of the CWC defines “toxic chemical” to mean: “Any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals. This includes all such chemicals, regardless of their origin or of their method of production, and regardless of whether they are produced in facilities, in munitions or elsewhere. (For the purpose of implementing this Convention, toxic chemicals which have been identified for the application of verification measures are listed in Schedules contained in the Annex on Chemicals.)”

48 Art. II.7, CWC.

49 Ibid., Verification Annex, Part VI, A.2(a).

50 Krutzsch, Walter and Trapp, Ralf, A Commentary on the Chemical Weapons Convention, Martinus Nijhoff Publishers, The Hague, 1994, p. 418.Google Scholar

51 Art. 31.3(b), Vienna Convention.

52 Wheelis, Mark, “Will the new biology lead to new weapons?” Arms Control Today, July/August 2004, p. 6, p. 8.Google Scholar This analysis does not suggest that State practice from one incident can settle interpretative questions raised by the CWC, but the State practice generated by the Moscow hostage situation is an important instance of State practice under Article II.9(d).

53 Art. II. 1 (a), CWC. Krutzsch and Trapp observed that “a State Party has not only to demonstrate that there was a legitimate intent for the production or stockpiling of a certain chemical, but also that the chemical is in fact of a type consistent with that purported intent, and that its quantity corresponds to the specified purpose.” Krutzsch and Trapp, op. cit. (note 50), p. 27.

54 “As with any chemical incapacitants, the concentration of fentanyl in any particular part of the building will have been difficult to control, the effects of any given concentration of fentanyl on any particularly susceptible individual would not have been known, and achievement of a certain separation between the incapacitating and lethal effects of the drug in other words, discriminating between making people unconscious without stopping them breathing is very difficult.” Dando, Malcolm, “The danger to the Chemical Weapons Convention from incapacitating chemicals, First CWC Review Conference Paper No. 4, March 2003, p. 4.Google Scholar

55 As Human Rights Watch commented on the Moscow hostage incident, “International law does not prohibit the use of potentially lethal force in operations to liberate hostages, but it requires that such force be ‘absolutely necessary’ and that all precautions be taken in both the planning and execution of such operations to minimize the loss of civilian life.” Human Rights Watch, op. cit. (note 32).

56 Art. 31.3(c), Vienna Convention, (“There shall be taken into account, together with the context: … (c) any relevant rules of international law applicable in the relations between the parties.”).

57 Art. 3, Universal Declaration of Human Rights, G.A. Res. 217A (III), UN Doc. A/810, 1948, p. 71 (hereinafter UDHR); Art. 6, International Covenant on Civil and Political Rights, 19 Dec. 1966, UNTS, Vol. 999, p. 171 (hereinafter ICCPR).

58 Human Rights Committee, “General Comment No. 6, Article 6,” para. 3, in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/l/Rev/1, 1994, p. 6.

59 Art. 4, ICCPR.

60 Human Rights Watch, op. cit. (note 32).

61 Commenting on the possible use of incapacitating chemicals for law enforcement purposes, the British government argued: “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 nonprescribed medication and any relevant medical conditions. There would also be considerable responsibility in terms of immediate and post-incident aftercare.” Quoted in Lewer and Davison, op. cit. (note 11), p. 47.

62 “To elicit the desired level of mood alteration without causing a dangerous level of respiratory depression (i.e. calming while maintaining consciousness) requires a tight control on dose level.” An Assessment of Non-Lethal Weapons Science and Technology, Committee for an Assessment of Non-Lethal Weapons Science and Technology, National Academies Press, Washington, D.C., 2003, p. 27.Google Scholar

63 Art. 31.3(c), Vienna Convention.

64 The CWC was negotiated well after the development of IHRL, which strengthens the legitimacy of making reference to IHRL in the interpretation of the CWC's law enforcement provision.

65 See, e.g. Arts. 6 ICCPR (no arbitrary deprivation of life and rules on imposition of the death penalty), 7 (prohibition of torture or cruel, inhuman or degrading treatment or punishment), 9–10 (rules relating to the deprivation of liberty), and 14–15 (rules on charging and prosecuting individuals for criminal offences).

66 Art. 5 UDHR; Arts. 4.2 and 7 ICCPR.

67 Detailed analysis of these IHRL issues can be found in Fidler, op. cit. (note 42), pp. 33–44.

68 Dando, Malcolm, “Scientific and technological change and the future of the CWC: The problem of nonlethal weapons,” Disarmament Forum, 2002, pp. 33–34.Google Scholar

69 Krutzsch and Trapp spelled out this choice: “The phrase Taw enforcement including domestic riot control’ can be interpreted as meaning that there is riot control other than domestic riot control. On the other hand, that ‘non-domestic’ riot control would have to be an internationally accepted means of ‘law enforcement?’” Krutzsch and Trapp, op. cit. (note 50), p. 42 n. 45.

70 Shorter Oxford English Dictionary, Oxford University Press, Oxford, 1993, p. 820.Google Scholar

71 State practice indicates frequent use of RCAs by governments within their sovereign territories. See Davison and Lewer 2004, op. cit. (note 11), pp. 34–35 (recording uses of RCAs around the world for crowd control).

72 American Law Institute, Restatement (Third) of the Foreign Relations Law ofthe United States, American Law Institute Publishers, St. Paul, 1986Google Scholar, § 431(1). Under international law, a State has prescriptive jurisdiction with respect to (1) conduct, persons, or activities wholly or in substantial part within its territory or areas subject to its jurisdiction; (2) the activities, interests, status, or relations of its nationals outside as well as within its territory and areas subject to its jurisdiction; and (3) conduct outside its territory or areas subject to its jurisdiction (a) that has or is intended to have substantial effect within its territory, and (b) by persons not its nationals that is directed against the security of the State or against a limited class of other state interests. Ibid. § 402. Even with such a basis, the exercise of the jurisdiction must also be reasonable. Ibid., § 403.

73 Ibid., p. 329.

74 Art. 2.1, UN Charter.

75 Ibid., Art. 2.7.

76 US State practice reflects this interpretation. The Commander's Handbook on the Law of Naval Operations lists as permissible the peacetime use of an RCA “[o]ff-base overseas for law enforcement purposes specifically authorized by the host government.” Day, Steven F., “Legal considerations in noncombatant evacuation operations,” Naval Law Review, Vol. 40, 1992, p. 45, p. 60.Google Scholar

77 As Chayes and Meselson noted, the CWC “does not state explicitly what sources of law states may enforce in invoking Article II.9(d). It seems possible, therefore, that states might wish to invoke international law to justify their ‘law enforcement’ activities.” Chayes and Meselson, op. cit. (note 44), p. 15.

78 Oppenheim's International Law, 9th ed., Longmans, London, 1992, p. 11.Google Scholar

79 Arts. 2.3, 2.4 and 33.1, UN Charter.

80 Ibid., Art. 51.

81 Art. 64, Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, 12 August 1949, UNTS, Vol. 75, p. 287 (hereinafter GC IV).

82 Commentary on Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War, ICRC, Geneva, 1958, p. 337.Google Scholar

83 Art. 64, GC IV.

84 An example of the use of an RCA to protect the occupying power's property is described in a report on “non-lethal” weapons sponsored by the Council on Foreign Relations. In response to civilians infiltrating a military base in Baghdad occupied by US military forces and attempting to loot property, US military personnel used various “non-lethal” weapons, including a RCA, oleoresin capsicum (OC), to clear the civilians from the compound. Independent Task Force, Non-Lethal Weapons and Capabilities, Washington, D.C., Council on Foreign Relations, 2004, p. 51.Google Scholar See also Davison and Lewer 2005, op. cit. (note 11), pp. 22–24 (describing use of various NLWs in US military operations in Iraq and Afghanistan).

85 GC IV, Arts. 64–78.

86 Arts. 41, 82, Third Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949 UNTS, Vol. 75, p. 135 (hereinafter GC III).

87 Ibid., Art. 82.

88 Ibid., Art. 42.

89 Commentary on Geneva Convention III Relative to the Treatment of Prisoners of War, ICRC, Geneva, 1960, p. 247.Google Scholar

90 Executive Order 11850, Federal Register, Vol. 40, 1975, p. 161, paras, (a), (d)).Google Scholar

91 After being unable to prevent violent mobs from attacking monasteries in Kosovo in March 2004, Germany announced its intention to equip its peacekeepers with RCAs. Davison and Lewer 2004, op. cit. (note 11), p. 34. In the Ivory Coast, French military forces used RCAs against rioting civilians in the wake of the French military intervention that followed an attack on French peacekeepers by the country's air force. Davison and Lewer 2005, op. cit. (note 11), p. 53.

92 Fidler, op. cit. (note 2), p. 58.

93 US Senate Executive Resolution No. 75 - Relative to the Chemical Weapons Convention, Congressional Record, Vol. 143, p. S3373–01,17 April 1997, § 26A.Google Scholar

94 Ibid.

95 President Bush authorized US military forces to use RCAs in Iraq in 2003 under the circumstances described in Executive Order 11850. Davison, Neil and Lewer, Nicholas, Bradford Non-Lethal Weapons Research Project Report No. 4, 2003, p. 13. The UK military indicated in March 2003 that it would use RCAs in Iraq solely for riot control purposes. Davison and Lewer 2004, op. cit. (note 11), p. 34.Google Scholar

96 This situation has produced incentives for trying to fit new chemical compounds, such as malodorants, within the definition of an RCA, as the United States has done. Davison and Lewer 2003, op. cit. (note 95), p. 10. Such an approach will not, however, work for stronger incapacitating chemicals. As a National Research Council report observed, “[t]he use of calmatives had (…) been envisioned in connection with hostage situations and for use with ‘unmanageable’ prisoners, but not for riot situations in which incapacitated individuals might be trampled or crushed in the rioting.” Committee for an Assessment of Non-Lethal Weapons Science and Technology, op. cit. (note 62), p. 27.

97 Executive Order 11850, op. cit. (note 90), § (b)-(c).

98 Art. 1, Protocol (II) Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 10 June 1977, UNTS, Vol. 1125, p. 609.

99 Art. I.1, CWC.

100 “New weapon technologies and the loophole in the Convention,” op. cit. (note 38), p. 2.

101 Independent Task Force 1999, op. cit. (note 35).

102 Independent Task Force 2004, op. cit. (note 84), p. 31.

103 Ibid., p. 32.

104 Ibid., p. 1.

105 Davison and Lewer 2005, op. cit. (note 11), p. 26 (reporting comments of NLW legal expert David Koplow at the Non-Lethal Defense Conference VI in March 2005).

106 Ibid, (reporting a lawyer from the US Judge Advocate General as arguing that it was “more likely than not that the Chemical Weapons Convention prohibited these types [calmatives] of weapons systems.”).

107 Davison and Lewer 2005, op. cit. (note 11), p. 21 (reporting that, at the Non-Lethal Defense Conference VI in March 2005, NLW advocate John Alexander held that “the issue of chemical and biological weapons should be revisited for non-lethal weapons purposes arguing that international law prohibiting their development is ‘out-dated.’”).

108 Dando, op. cit. (note 54), p. 17. One non-governmental organization has accused the United States of operating a secret chemical weapons programme in violation of the CWC. “US military operates secret chemical weapons program”, Sunshine Project Aerogramme, No. 2002/05, Sunshine Project, 24 September 2002.Google Scholar

109 NATO Research and Technology Organization, Non-lethal weapons and future peace enforcement operations, TR-SAS-040, November 2004, p. 3–6.Google Scholar

110 See, e.g., Preliminary Legal Review of Proposed Chemical-Based Nonlethal Weapons, US Department of the Navy Office of the Judge Advocate General, 30 Nov. 1997, p. 21 (“The Biological Weapons Convention and, more clearly, the domestic [US] implementing legislation, prohibit the development, production, stockpiling of biological agents for use as weapons. Biological agents are broadly denned by the statute so as to include agents used for anti-material purposes”).Google Scholar

111 See Committees of the North Atlantic Assembly, Non-lethal weapons, Lord Lyell (United Kingdom) General Rapporteur, 18 April 1997, Doc. No. STC (97)3, at § 39 (stating that “the use of biological agents to render fuels inert or destroy materials used in material equipment would not be permissible under the BWC even if the intent was non-lethal.”).

112 Massimo Annati, “Military use of chemical riot control agents: A case for legal assessment”, paper presented to the 3rd European Symposium on Non-Lethal Weapons, 10–12 May 2005, Ettlingen, Germany, p. 7 (arguing that malodorants are not toxic chemicals under the CWC); Silberman, Jared, “Non-lethal weaponry and non-proliferation,” Notre Dame Journal of Law, Ethics and Public Policy, Vol. 19, 2005, pp. 347–348 (US Navy lawyer arguing that “[o]ne thing that you may see on the horizon is the use of malodorants – a way to deny access to an enemy.”).Google Scholar

113 Davison and Lewer 2005, op. cit. (note 11), p. 26.

114 Davison, Neil, “Weapons focus: Biochemical weapons,” in Bradford Non-Lethal Weapons Research Project Report No.5, May 2004, pp. 27–34Google Scholar; Wheelis, op. cit. (note 52), pp. 6–13; Dando, Malcolm, “The malign use of neuroscience,” Disarmament Forum, 2005, pp. 17–24Google Scholar; Nixdorff, Kathryn, “Assault on the immune system,” Disarmament Forum, 2005, pp. 25–35.Google Scholar

115 See Davison and Lewer 2005, op. cit. (note 11), pp. 34–41 (reviewing controversies surrounding the Taser weapon).

116 NATO Research and Technology Organization, op. cit. (note 109), p. iii.

117 Ibid., pp. 4–5.

118 The classic example of this dynamic is the development of the prohibition on the use of blinding laser weapons.

119 Davison and Lewer 2005, op. cit. (note 11), p. 21.

120 Ibid.

121 Independent Task Force 2004, op. cit. (note 84), p. 8.

122 See Komarow, Steven, “Pentagon deploys array of non-lethal weapons”, USA Today, 24 July 2005, at <http://www.usatoday.com/news/world/iraq/2005-07-24-nonlethal-weapons_x.htm> (last visited 27 July 2005). At present, the pace at which such breakthroughs might happen is being slowed by a lack of funding. In the United States, commitments in Iraq and Afghanistan adversely affect prospects for Department of Defense support for development of NLW technologies. The research and development burden will fall, therefore, on the private sector. See Davison and Lewer 2005, op. cit. (note 11), p. 22.+(last+visited+27+July+2005).+At+present,+the+pace+at+which+such+breakthroughs+might+happen+is+being+slowed+by+a+lack+of+funding.+In+the+United+States,+commitments+in+Iraq+and+Afghanistan+adversely+affect+prospects+for+Department+of+Defense+support+for+development+of+NLW+technologies.+The+research+and+development+burden+will+fall,+therefore,+on+the+private+sector.+See+Davison+and+Lewer+2005,+op.+cit.+(note+11),+p.+22.>Google Scholar