The Paradox of Tear Gas: Prohibited in Conflict, Permitted in Control

By Ioannis Kerentzis

Welcome to the latest edition of “Sunday Morning Int. Law Brew.” This week, we delve into a pressing and often overlooked issue in international law and human rights: the use of tear gas. Despite being banned in warfare under international treaties, tear gas remains a contentious tool for law enforcement globally. Pour yourself a coffee and join me as we unravel the complexities surrounding this controversial substance, its legal implications, and its impact on human rights.

The Legal Quagmire of Tear Gas

Tear gas, a term encompassing various chemical agents used primarily for riot control, evokes a paradox in international law. While classified as a chemical weapon under the Geneva Protocol and the Chemical Weapons Convention (CWC) when used in warfare, its application in domestic law enforcement remains unregulated by the same strict standards. The lack of a precise definition and the ambiguous guidelines surrounding its use leave a significant legal and ethical void.

The Geneva Protocol and Chemical Weapons Convention

To understand this paradox, we must examine the historical context and specific provisions of key international treaties. The Geneva Protocol of 1925 established the foundational prohibition of chemical weapons in warfare, explicitly banning the use of asphyxiating, poisonous, or other gases. However, it did not specify riot control agents, leading to varied interpretations. The CWC of 1993 later addressed this by prohibiting the use of chemical weapons in warfare, including riot control agents (Art. 1.5). Yet, it allows for their use in law enforcement under certain conditions, creating a grey area where the chemical agents deemed unacceptable in conflict are still permissible for domestic use (Art. 2.9(d)).

Despite its ambiguities, the Chemical Weapons Convention (CWC) remains one of the foundational treaties of International Humanitarian Law, prohibiting methods of warfare that inherently violate the fundamental principle of distinction, as they cannot be restricted to combatants alone and inevitably affect civilians. Simultaneously, chemical weapons breach the fundamental principle of prohibiting unnecessary suffering and superfluous injury. The prohibition of chemical weapons is considered a customary norm in both international and non-international armed conflicts (Rule 74), and their use is classified as a war crime under Articles 8(b) and 8(e) of the Rome Statute of the International Criminal Court. Although the statute does not explicitly mention tear gas, it can fall under the category of "poisonous or other gases, and all analogous liquids, materials or devices" included in these provisions.

Unclear Definitions and Their Implications

The lack of a clear definition for "tear gas" complicates the issue. According to the UN Guidance on Less-Lethal Weapons, tear gas refers to a range of chemical agents causing irritation and disabling effects. The CWC’s allowance for riot control agents in law enforcement further blurs the lines, permitting their use but not explicitly outlining the limitations to protect human rights. This ambiguity enables states to exploit loopholes and deploy these agents in ways that can harm civilians, especially in situations where their use may not be justified or proportional.

Legal Frameworks and Inconsistencies

Such legal ambiguities have significant implications. Despite the Geneva Protocol and CWC's prohibitions in warfare, there is no binding international agreement regulating the use of tear gas in domestic settings. The UN’s soft law documents, such as the Guidance on Less-Lethal Weapons, offer general principles but lack binding force. This leaves law enforcement agencies with minimal oversight and accountability, resulting in inconsistent and often abusive practices.

The UN Code of Conduct for Law Enforcement Officials emphasizes the protection of human dignity and rights but fails to provide specific prohibitions against tear gas use. The lack of explicit legal constraints allows for the continued use of tear gas in ways that may violate fundamental human rights, such as the right to life and freedom from torture or inhumane treatment.

The Need for Reform

This regulatory gap highlights the urgent need for reform. The ongoing debate underscores the necessity for a comprehensive international legal framework to address the use of tear gas in law enforcement. Notably, there is no international agreement regulating the production and sale of tear gas. Manufacturers are not required to provide detailed lists of the chemicals used, resulting in scenarios where even law enforcement may be unaware of the toxic substances they are deploying. Each producer uses their own "recipe" without an obligation to fully disclose it.

Furthermore, there is no international agreement on export controls for tear gas, unlike other weapon systems, which means there is no accountability for manufacturers or exporting states. Due diligence obligations related to human rights violations and training for law enforcement are also absent, resulting in no international liability when tear gas is misused to violate human rights. Consequently, this $3 billion industry operates with little oversight.

Examples of Positive Change

Encouragingly, there have been instances where states have taken action to limit the use of tear gas in response to human rights concerns. For example, South Korea suspended tear gas exports to Bahrain in 2014 following reports of misuse, and the UK and US imposed export restrictions to Hong Kong in 2019 after international criticism. These actions, while significant, are sporadic and insufficient to address the broader issue.

Conclusion: A Call for Comprehensive Action

In this edition of ‘Sunday Morning Int. Law Brew,’ we’ve explored the complex legal and human rights issues surrounding tear gas. The continued use of a substance banned in warfare but allowed in domestic law enforcement presents a critical challenge. The current legal frameworks are inadequate, leaving civilians vulnerable to harm and abuse.

To address these gaps, there is an urgent need for a specific international convention on tear gas that bans its use altogether from riot control and our cities. Such a convention would provide clear guidelines, ensuring that tear gas is no longer a tool for suppression in civilian settings.

As you enjoy your coffee today, consider how international law could evolve to address these gaps. What steps can be taken to create a more robust and coherent legal regime for controlling tear gas use? How can we ensure that human rights are upheld in the face of such controversial tools?

Your thoughts and insights on this issue are invaluable. Engage in the conversation and share your perspectives on how we can drive meaningful change in the regulation of tear gas.

Thank you for joining me. Have a wonderful Sunday, and I look forward to our next discussion on another important topic.