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Terrorism and Political Violence

ISSN: 0954-6553 (Print) 1556-1836 (Online) Journal homepage: https://www.tandfonline.com/loi/ftpv20

The Role of the Chemical Weapons Convention in Countering Chemical Terrorism

Jonathan B. Tucker

To cite this article: Jonathan B. Tucker (2012) The Role of the Chemical Weapons Convention in Countering Chemical Terrorism, Terrorism and Political Violence, 24:1, 105-119, DOI: 10.1080/09546553.2011.611839

To link to this article: https://doi.org/10.1080/09546553.2011.611839

Published online: 06 Dec 2011.

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The Role of the Chemical Weapons Convention in Countering Chemical Terrorism

JONATHAN B. TUCKER

Federation of American Scientists, Washington, DC, USA

A series of incidents over the past two decades has indicated that some terrorist groups are interested in acquiring and using improvised chemical devices (ICDs). Although the 1993 Chemical Weapons Convention (CWC) is a disarmament treaty that is legally binding only on sovereign states that join it voluntarily, the Convention fortuitously includes several provisions that can help its members to prevent chemical terrorism or to manage the consequences of an attack. This article examines the articles of the CWC that are relevant to counterterrorism and discusses how their implementation could be improved at the national and international levels. The arti- cle also addresses the role that the CWC secretariat, the Organization for the Pro- hibition of Chemical Weapons (OPCW) in The Hague, currently plays in preventing and responding to incidents of chemical terrorism, and the political fac- tors that constrain its activities in the counterterrorism field.

Keywords Al-Qaeda, chemical terrorism, Chemical Weapons, Chemical Weapons Convention, improvised chemical device, toxic industrial materials

The 1993 Chemical Weapons Convention (CWC), which has been signed and ratified by the great majority of countries, requires the elimination of all existing stockpiles of chemical arms and bans their future development, production, stockpil- ing, transfer, and use. Chemical warfare (CW) agents are toxic, man-made chemicals designed to incapacitate or kill; they include ‘‘choking agents’’ such as phosgene, which irritate the lungs and cause them to fill with fluid so that the victim asphyxi- ates; ‘‘blistering agents’’ such as mustard gas, which produce disabling chemical burns and blisters on the skin; ‘‘blood agents’’ such as hydrogen cyanide, which starve the tissues of oxygen and cause rapid organ failure; and ‘‘nerve agents’’ such

Jonathan B. Tucker, PhD, managed the Biosecurity Education Project at the Federation of American Scientists in Washington, DC. His books include War of Nerves: Chemical War- fare from World War I to Al-Qaeda (Pantheon, 2006) and, as editor, Toxic Terror: Assessing Terrorist Use of Chemical and Biological Weapons (MIT Press, 2000).

The journal of Terrorism and Political Violence expresses its sincere condolences to the family and friends of Dr. Jonathan B. Tucker. Dr. Tucker passed away July 27, 2011 while the article was in the final stages of review. Dr. Tucker had an extensive career as an expert on biological and chemical weapons. He worked at the Monterrey Institute’s James Martin Center for Non-proliferation Studies for the last 15 years and at the time of his death was scheduled to begin work in a senior position in the field of chemical and biological weapons control at the Department of Homeland Security.

Address correspondence to Jonathan B. Tucker, c=o Jonathan Winer, Estate of Jonathan B. Tucker. E-mail: [email protected]

Terrorism and Political Violence, 24:105–119, 2012 Copyright # Taylor & Francis Group, LLC ISSN: 0954-6553 print=1556-1836 online DOI: 10.1080/09546553.2011.611839

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as sarin, which disrupt the function of the nervous system and result in convulsions and death by respiratory paralysis. The CWC also prohibits the hostile use of biologi- cal toxins: non-living poisons produced by livingmicroorganisms, plants, and animals.

When the CWC was negotiated during the final years of the Cold War, the main security threat from chemical weapons was their potential large-scale use by the Soviet Union and its Warsaw Pact allies on the battlefields of central Europe. A few developing countries, such as Iraq, Syria, and North Korea, also acquired chemical weapons stockpiles and delivery systems as a means of countering superior conventional military forces or as a strategic deterrent against a nuclear-armed adversary. Ever since the CWC entered into force in April 1997, however, chemical weapons have lost any residual political or moral legitimacy, even for deterrence. As a result, the few states that still possess such armaments do not admit doing so and are unlikely to resort to their use. Instead, there is growing concern over the threat of chemical terrorism from non-state actors such as Al-Qaeda, which produced small quantities of CW agents at training camps in Afghanistan prior to the U.S. invasion of that country in late 2001.1

Terrorist organizations—particularly those motivated by religious or millen- arian beliefs—operate under fewer moral and legal restrictions than states and are therefore more inclined to use unconventional weapons. As Bruce Hoffman has observed, ‘‘For the religious terrorist, violence first and foremost is a sacramental act or divine duty executed in direct response to some theological demand or impera- tive. Terrorism thus assumes a transcendental dimension, and its perpetrators are thereby unconstrained by the political, moral, or practical constraints that seem to affect other terrorists.’’2 At the same time, the absence of high-value targets that can be held at risk makes terrorist groups harder to deter than state actors.

Al-Qaeda has openly signaled its intention to acquire and use ‘‘weapons of mass destruction’’ (WMD), defined as nuclear, chemical, and biological arms. On May 21, 2003, for example, Nasir bin Hamd al-Fahd, a radical Saudi cleric associated with Al-Qaeda, published a 26-page fatwa titled ‘‘A Treatise on the Legal Status of Using Weapons of Mass Destruction against Infidels.’’3 This fatwa argues that under Islamic law, employing WMD against Western countries is a legitimate means of retaliation for ‘‘Muslims killed directly or indirectly by their weapons,’’ a number of deaths estimated at ‘‘nearly ten million.’’ The treatise also refutes what it calls three ‘‘specious arguments’’ against the use of WMD, namely the prohibitions on killing women and children, on sowing corruption in the land, and on killing Muslims.4

Among the three main categories of WMD, it would be easier and cheaper for terrorists to acquire and disperse toxic chemicals than to build an improvised nuclear device or a deliverable biological weapon. Many CW agents or their immediate chemical ingredients (precursors) are ‘‘dual-use,’’ meaning that they can be employed for either commercial or military purposes. In the latter case, however, a chemical agent must be ‘‘weaponized’’ by integrating it with a suitable delivery system. Although a chemical attack is the most likely form of WMD terrorism, it has less potential to inflict mass casualties than either a nuclear or biological attack. For this reason, the threat of chemical terrorism has largely faded from the radar screen of policymakers in the United States and other Western countries, creating a level of complacency that is not warranted by the facts.5 Indeed, although ICDs are rela- tively inexpensive and simple to build, a series of small-scale chemical attacks— either simultaneous or sequential—could terrorize a major city.

106 J. B. Tucker

Because the CWC was negotiated in the historical context of the Cold War, it was not designed to deal with chemical threats from non-state actors. Some member countries also believe that counterterrorism efforts lie outside the mandate of the treaty and its international implementing body, the Organization for the Prohibition of Chemical Weapons (OPCW) in The Hague, The Netherlands. If the CWC is to keep enhancing international security, however, its implementation must adapt to the evolving nature of the chemical weapons threat, which has changed fundamen- tally since the end of the Cold War. This paper describes the phenomenon of chemi- cal terrorism and discusses the strengths and weaknesses of the CWC and the OPCW in combating this threat.

Improvised Chemical Devices

Whereas military chemical weapons are standardized and mass-produced, terrorists could produce improvised chemical devices (ICDs) with a variety of possible config- urations and chemical fills. Some ICDs disseminate a toxic chemical agent with an explosive charge, while others use a non-explosive dispersal mechanism. In contrast to the production of chemical munitions, which requires a large industrial infrastruc- ture, small groups working in clandestine hideaways could design and produce ICDs on an ad hoc basis.

Because classical CW agents must be synthesized from scratch and are extremely hazardous to handle, terrorists are more likely to use toxic industrial chemicals (TICs), such as chlorine, phosgene, anhydrous ammonia, and organophosphate pes- ticides. In many countries, TICs are not controlled and can be purchased on the open market. Moreover, the fact that TICs have many commercial applications and are manufactured in large quantities makes them extremely difficult to monitor. The global production of chlorine, for example, totaled 65 million tons in 2006.6

Over the past several years, a number of incidents have occurred in which terrorists have built ICDs and in some cases used them. These incidents are briefly summarized below:

. In March 1995, members of a Japanese doomsday cult called Aum Shinrikyo, seeking to create a diversion that would prevent an impending police raid on their headquarters, filled dual-ply plastic bags with a dilute solution of sarin nerve agent, which they released on trains in the Tokyo subway system by puncturing the bags with sharpened umbrella tips. Exposure to the liquid agent or its vapors killed twelve commuters and injured hundreds more.7

. From 1999 to 2001, Abu Khabab al-Masri, a chemist and bomb-maker for Al-Qaeda, held training courses on chemical, biological, and radiological weapons at the Durante and Tarnak Farms camps in Afghanistan. In August 2002, CNN broadcast videotapes from the camps showing experiments with crude poisons on dogs and other animals in the late 1990s.8 The use of chemical agents was left to the initiative of individual cells outside the direct supervision of the Al-Qaeda core leadership.9

. In June 2002, a group of extremists led by Abu Musab al-Zarqawi, an inde- pendent terrorist who had not sworn loyalty to Osama bin Ladin, conducted training and experiments with crude chemical agents at the remote Khurmal camp in northeastern Iraq. From September through December 2002, Zarqawi associ- ates infiltrated into Britain, France, Germany, Italy, Spain, Sweden, Turkey,

The Role of the Chemical Weapons Convention 107

and other countries to coordinate attacks with cyanide and ricin (a plant toxin) by a loose association of terrorist cells, but effective police work foiled the planned campaign. In January 2003, the British authorities arrested several extremists from the Zarqawi network in a plot to release ricin in the London Underground. Over the next few months, other planned attacks with ricin or cyanide were disrupted in Britain, France, Italy, and Spain.10

. In autumn 2002, a cell of five Al-Qaeda associates in Bahrain with connections to Saudi Arabia prepared an ICD called a mubtakkar (‘‘invention’’ in Arabic) for a planned attack on the New York City subway in the spring of 2003. The device was a canister containing two Mason jars, one filled with crystals of potassium cyanide and the other with a strong acid. A detonator that could be activated remotely by cell phone was designed to break a seal between the two jars, allowing the acid to react with the crystals to generate hydrogen cyanide gas, which is lethal when released in an enclosed space.11 In March 2003, however, six weeks before the planned attack, Al-Qaeda deputy leader Ayman al-Zawahiri personally ordered the Bahraini cell to cancel the operation and return home, saying that he had ‘‘something better in mind.’’12 The likely reason for aborting the attack was that the destructive effects of the ICD would have been insufficient to meet Al-Qaeda’s goals. Indeed, reconstruction and testing of the mubtakkar by the CIA found that the energetic nature of the chemical reaction would have caused the device to blow apart, rapidly halting the production of the lethal gas.13

. In May 2004, a U.S. military convoy in Iraq discovered and defused a 155-milli- meter chemical artillery shell that had been rigged as an improvised explosive device. The round was an old Iraqi ‘‘binary-type’’ shell, in which two precursor chemicals stored in separate compartments mix together after the projectile is fired and react to produce the nerve agent sarin. Because the shell did not have special markings, a U.S. military spokesman speculated that the Iraqi insurgents who had rigged it as a bomb had probably been unaware that it contained a chemical fill.14

. From October 2006 until June 2007, Sunni insurgents affiliated with Al-Qaeda in Iraq (AQI) built more than a dozen ‘‘chlorine-augmented, vehicle-borne IEDs,’’ consisting of trucks rigged with conventional explosives and either 150-pound or one-ton containers of liquid chlorine, which are used in Iraq for water purifi- cation and sewage treatment. Detonation of the explosive charge ruptured the chlorine containers and released a plume of toxic vapor that drifted downwind, sending dozens of civilians to the hospital coughing and wheezing.15 Although this low-cost tactic had a potent terrorizing effect on the local population, it produced few fatalities from exposure to the toxic gas because the blasts burned or oxidized much of the chlorine. After experimenting with various configurations of explo- sives and chlorine tanks in an attempt to maximize the downwind toxicity of the ICDs, the insurgents finally abandoned the tactic.

. During 2010, more than 10 chemical attacks targeted schoolgirls in various parts of Afghanistan, including Kunduz, Kabul, and Balkh province. In two incidents in Kabul in August, 48 female students and teachers at the Zabihullah Esmati High School and 60 girls and teachers at the Totia Girls School were hospitalized after fainting or complaining of headache, breathing problems, dizziness, and nau- sea. Testing of the victims’ blood revealed harmful but non-fatal levels of organo- phosphates, the active ingredients of pesticides such as malathion. Because the chemical incidents took place mainly in parts of Afghanistan with large Pashtun populations which oppose the education of girls, Taliban sympathizers were

108 J. B. Tucker

believed responsible for the attacks. Exactly how the toxic agent was delivered, however, remained unclear.16

Although to date the technical sophistication of ICDs has been rudimentary, ter- rorist organizations have shown themselves capable of learning and adaptation, and web pages and social-networking sites provide a way for such groups to exchange operational knowledge and experience relevant to chemical weapons. As a result, the threat of chemical terrorism is likely to grow in the coming years, yet national capabilities to prevent and respond to such attacks remain a weak point of domestic preparedness efforts.

A potential nexus also exists between chemical terrorism and the production and trafficking of illicit drugs. For example, Masami Tsuchiya, the organic chemist who headed Aum Shinrikyo’s sarin production team, synthesized LSD and methamphe- tamine for use in initiation rites involving cult members and to raise money. Accord- ing to a U.S. Senate investigation, ‘‘The Japanese police strongly suspect that the Aum was using its chemical weapons development program to produce illegal drugs, including stimulants and LSD. The police also believe that the Aum had an arrangement to sell their drugs to Japanese organized crime, the Yakuza.’’17 More recently, the U.S. Drug Enforcement Agency uncovered links between drug- trafficking organizations in Latin America and members of a North African jihadist group known as Al-Qaeda in the Islamic Maghreb (AQIM).18 Given this nexus, it is possible that illicit laboratories for refining cocaine or heroin could support the production of chemical agents and homemade explosives for terrorist ICDs.

CWC Provisions Relevant to Chemical Terrorism

The CWC negotiations began in earnest in the early 1980s and concluded in 1992; the treaty was opened for signature in 1993 and entered into force in 1997. As a result, the CWC predates the current concerns over chemical terrorism. Counterter- rorism is also not a traditional role for arms control and disarmament treaties, which are legally binding only on sovereign states that decide voluntarily to join. Fortui- tously, however, several provisions of the CWC have turned out to be relevant to preventing and responding to chemical terrorism. These provisions are discussed briefly in the following sections.

Definition of Chemical Weapons

Articles I and II of the CWC define chemical weapons extremely broadly as ‘‘toxic chemicals and their precursors, except where intended for purposes not prohibited under the Convention, as long as the types and quantities are consistent with such purposes.’’ A toxic chemical is defined in turn as ‘‘any chemical which through its chemical action on life processes can cause death, temporary incapacitation or per- manent harm to humans or animals.’’ This purpose-based definition, known as the General Purpose Criterion, prohibits the development, production, stockpiling, transfer, and use of any toxic chemical for hostile purposes. (Non-prohibited pur- poses under the CWC include peaceful scientific, medical, and industrial applications of toxic chemicals, the use of tear gas for domestic riot control, and capital punish- ment by lethal injection.) The comprehensive, purpose-based definition of chemical weapons means that the treaty cannot easily be overtaken by technological change:

The Role of the Chemical Weapons Convention 109

as soon as a new toxic chemical is developed for hostile purposes, it immediately falls under the purview of the General Purpose Criterion.

With respect to chemical terrorism, the fact that the CWC bans the acquisition and use of all toxic chemicals for prohibited purposes has the effect of extending the scope of the treaty beyond the battlefield to cover chemical attacks against civilians by both state and non-state actors. Moreover, paragraph 1(d) of Article I provides that member states shall not ‘‘assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Convention’’ [emphasis added]. The use of the word ‘‘anyone’’ makes clear that the prohibitions of the CWC apply not only to states but also to non-state actors who would employ toxic chemi- cals to cause harm, such as terrorist or criminal organizations.

Chemical Industry Verification

Despite the CWC’s comprehensive definition of chemical weapon, for practical reasons the treaty’s routine verification regime is keyed to a limited set of toxic che- micals and their precursors, which are listed on three Schedules of Chemicals in an annex to the treaty. Schedule 1 consists of known CW agents and their immediate precursors, while Schedules 2 and 3 cover ‘‘dual-use’’ chemicals that can be used for weapons purposes but also have legitimate commercial applications in small or large quantities, respectively. Under Article VI of the CWC, chemical industry facili- ties must be declared if they produce chemicals listed on the Schedules in amounts exceeding specified quantitative thresholds. Such facilities are also subject to on-site inspection by international teams from the OPCW Technical Secretariat. As a result, routine verification measures, such as declarations and inspections, cover only a small fraction of the entire universe of toxic chemicals and precursors.

With a few exceptions, the toxic chemicals and precursors listed on the three Schedules are those that states have developed or used in the past for CW purposes. A few toxic industrial chemicals, such as phosgene and hydrogen cyanide, are listed on Schedule 3 because they were employed as weapons during World War I. But sev- eral other TICs that might be used by terrorists, such as anhydrous ammonia, sodium cyanide, and methyl isocyanate (the toxic chemical responsible for the 1984 chemical disaster in Bhopal, India), are absent from the Schedules because they were never developed as military weapons. Chlorine is an exception: although it was used on the battlefield in World War I, it is not included in Schedule 3 because it is manufactured for legitimate purposes by so many facilities worldwide that routine inspections would be impractical. In sum, the fact that the CWC’s routine industry verification regime focuses on types and quantities of toxic chemicals and precursors that are chiefly of military concern reduces the utility of the treaty as a tool for combating chemical terrorism.

In an effort to prevent major gaps in coverage, the CWC verification regime includes measures for monitoring ‘‘other chemical production facilities’’ (OCPFs), or multipurpose industrial plants that do not currently manufacture chemicals on the Schedules but are technically capable of doing so. Such facilities must be declared if they produce more than 200 metric tons per year of ‘‘unscheduled’’ organic chemi- cals or 30 metric tons of organic chemicals containing phosphorus, sulfur, or fluorine (PSF), elements often present in chemical warfare agents. In 2009, 78 countries declared a total of 4,400 OCPFs that were subject to inspection.19 Of this total, China and India alone accounted for about 2,000 such facilities.20 Although the

110 J. B. Tucker

OCPF verification regime covers toxic industrial chemicals not listed on the CWC Schedules, it is of limited utility for countering chemical terrorism because the annual production thresholds of unscheduled discrete organic chemicals that trigger routine inspections—200 metric tons for ordinary OCPFs and 30 metric tons for PSF plants—are too high to capture the low-volume batch manufacturing facilities that might be exploited by terrorists.

National Implementation

Elements of the CWC that are particularly relevant for preventing chemical terror- ism are the provisions of Articles VI and VII that deal with national implementation of the treaty. Article VI sets out the functional basis of national implementation by stating that each member state ‘‘shall adopt the necessary measures to ensure that toxic chemicals and their precursors are only developed, produced, otherwise acquired, retained, transferred, or used . . . for purposes not prohibited under this Convention.’’ Article VII provides the legal basis for national implementation by requiring that each member state ‘‘in accordance with its constitutional processes, adopt the necessary measures to implement its obligations under this Convention.’’

Because the CWC is not self-implementing, national legislation is required to make the prohibitions of the treaty legally binding on all individuals and entities under the jurisdiction or control of a member government, and to impose penal sanctions for violations. To ensure the adequate coverage of non-state actors such as terrorists, implementing legislation should make the development, production, acquisition, stockpiling, transfer, and use of chemical weapons a criminal offense, regardless of where it occurs. The legislation should also criminalize the provision of assistance, encouragement, or inducement to engage in activities prohibited by the CWC. Finally, the legislation should have extraterritorial application, so that it applies to all citizens of a member country, whether they reside at home or abroad.21

Although most routine international verification measures specified by the CWC are keyed to the toxic chemicals and precursors listed on the three Schedules, it is prudent to assume that terrorists will not limit themselves to using standard CW agents. The legislative, regulatory, and administrative procedures adopted by the member states should therefore cover toxic industrial chemicals acquired and used for hostile purposes, as broadly defined under the General Purpose Criterion. Even so, because a large proportion of the world’s chemical plants either do not manufac- ture scheduled chemicals or produce unscheduled chemicals in quantities too low to be captured by the OCPF declaration thresholds, such facilities are not subject to routine international inspection. Instead, as stated in Article VI, the individual CWC member states are ultimately responsible for preventing terrorist groups from acquiring and using TICs for prohibited purposes.

Adopting domestic legislation for implementing the CWC gives member states useful tools for combating chemical terrorism. For example, before the treaty entered into force in 1997, Japan had no laws on the books that prohibited groups or individuals from acquiring chemical weapons. As a result, the Japanese police lacked the authority to use undercover operations and electronic surveillance against Aum Shinrikyo, despite growing evidence in the early 1990s that the cult was devel- oping unconventional arms. Other factors contributing to the failure of the Japanese police to pursue Aum were the cult’s protected legal status as a religious organization

The Role of the Chemical Weapons Convention 111

and the police’s lack of experience in investigating terrorist cases involving weapons of mass destruction.22 Now that Japan has adopted legislation implementing the CWC, however, the country’s police agencies have the authority to investigate groups seeking chemical weapons, and to intervene proactively to prevent an attack.

The passage of comprehensive CWC implementing legislation by all member states would significantly improve global efforts to prevent chemical terrorism. In October 2003, the OPCW approved an ambitious Action Plan on National Implementation, including the development of national implementation checklists, model legislation, and a roster of legal experts who are familiar with the requirements of the treaty and can provide implementation support.23 Even so, much still remains to be accomplished. As of November 2010, only 87 of the 188 CWC states (46 percent) had passed implementing legislation covering all key aspects of the treaty.24

Moreover, many countries have failed to adopt implementing legislation and subsidiary regulations that give effect to the General Purpose Criterion by banning the acquisition and use of any toxic chemical for hostile purposes. Instead, they have focused their national implementing legislation narrowly on the chemical agents and precursors listed in the Schedules, thereby excluding many toxic industrial chemicals. To rectify this problem, countries lacking comprehensive implementing legislation should amend these laws to expand their scope and make them more relevant to countering chemical terrorism.

Another important aspect of national implementation is controlling the trade in CW agent precursors and dual-use production equipment. Aum Shinrikyo, for example, used front companies to purchase from a Swiss company a pilot production plant worth some $10 million, which it converted into a factory for the production of sarin nerve agent. The cult also acquired large quantities of sarin precursor chemi- cals, including 180 tons of phosphorus trichloride, 950 kilograms of phosphorus pen- tachloride, 54 tons of sodium fluoride, and 51 tons of isopropyl alcohol. Most of the suppliers were Japanese, but a few were foreign.25 From a practical standpoint, how- ever, the huge volume of chemical trade makes it extremely difficult to detect illicit trafficking of CW precursors.26 For this reason, it may be more cost-effective for intelligence agencies to track terrorist groups seeking chemical weapons, rather than attempting to monitor flows of dual-use chemicals in the hope of identifying a few suspicious shipments.27

Because domestic terrorist groups would be likely to purchase TICs from local suppliers, improved monitoring is also needed over at the national level. In 2003 the Federal Bureau of Investigation (FBI) established a public-private partnership called the Chemical Industry Outreach Program, which works closely with U.S. chemical manufacturers to set up ‘‘tripwire’’ mechanisms covering production, distribution, and retail sales. This program provides channels through which company officials can notify the local FBI field office when they receive a suspicious purchase request from an unknown customer.28

Beyond comprehensive national legislation, effective implementation of the CWC requires the training and equipping of law-enforcement personnel and customs officials to detect, investigate, prosecute, and punish individuals or groups seeking chemical weapons. Negotiating extradition agreements that cover chemical weapons- related crimes can help to hold terrorists accountable. Finally, to ensure that imple- menting legislation and subsidiary regulations remain effective despite changes in chemical technology, CWC member states should review their laws and regulations periodically and amend them as necessary.29

112 J. B. Tucker

Protection and Assistance

Article X is an element of the CWC that has significant potential for combating chemical terrorism because it obligates member states to provide emergency assis- tance and protection to any state party that is attacked or threatened with chemical weapons, regardless of whether the perpetrator is a state or a non-state actor. Offers of protective assistance may take the form of a financial contribution to a voluntary fund managed by the OPCW. Alternatively, member states can pledge to donate cer- tain items of chemical defense equipment, such as detection systems, gas masks and protective suits, decontamination showers, and medical antidotes, which may be provided on a bilateral basis or through the organization. As of December 2009, however, only 43 states party to the CWC had made offers of assistance.30

Article X also provides that within 24 hours after the receipt of a request for assistance, the OPCW Director-General must launch an investigation of the alleged chemical attack to ‘‘establish relevant facts relevant with the request as well as the type and scope of supplementary protection and assistance needed.’’ This investi- gation must be completed within 72 hours and a report submitted to the Executive Council. The possibility that terrorists could employ chemical weapons has called attention to the need to strengthen the capacity of CWC member states to investigate alleged incidents of chemical weapons use and identify the perpetrators. One area that warrants greater attention is chemical forensics, or the use of analytical techni- ques (such as liquid chromatography-mass spectrometry) to determine the chemical ‘‘fingerprint’’ of the agent used in a terrorist attack and thereby gain insights into its composition and method of production, with the goal of tracing the source of the agent back to a particular group or individual.31

Since the CWC entered into force in April 1997, no member state has yet requested protective assistance under Article X. Nevertheless, the OPCW Technical Secretariat must be prepared to respond to a chemical attack against a state party by managing the delivery of protective supplies and equipment. To support this effort, the Technical Secretariat has established an Assistance, Coordination, and Assess- ment Team (ACAT) consisting of experts from the organization, reinforced with spe- cialists from member states in areas where the OPCW does not have the requisite skills (e.g., explosive ordnance disposal, improvised chemical devices, and counter- terrorism). The ACAT team would play a key role in assistance operations, including on-site coordination with other international organizations and national agencies. The OPCW has also developed an information data bank on protection against chemical weapons that is available to member states through a password-protected page on the organization’s website.

To test procedures for the delivery of protective assistance after a chemical attack, the OPCW Technical Secretariat has conducted a series of field exercises. The most recent, ASSISTEX 3, took place in Tunisia on October 11–15, 2010, and involved some 400 soldiers, civil-defense teams, police, medical doctors, and specialists in reconnaissance, decontamination, and bomb disposal from the Czech Republic, Denmark, France, India, Italy, Spain, South Africa, Switzerland, Tunisia, Turkey, and the United Kingdom. Also participating were a regional team from the Caribbean and sub-regional teams from North, West, and East Africa.32

ASSISTEX 3 was based on a scenario in which an explosion occurs at a sports arena in Tunis, followed by the detonation of ICDs in various parts of the city. This exercise tested procedures for detecting a chemical attack, investigating an alleged

The Role of the Chemical Weapons Convention 113

use of chemical weapons, delivering protective assistance, and evacuating the injured. ASSISTEX 3 also assessed the ability of the OPCW Technical Secretariat to coordinate with other international organizations, local emergency management agencies, and first-responder units.33 Although the exercise was successful overall, it identified a number of gaps and weaknesses that require improvement. A compre- hensive evaluation of the lessons learned from ASSISTEX 3 will result in a plan to improve the OPCW’s protective response capabilities.

Universality

As of mid-2011, the CWC had 188 member states, with only seven countries remain- ing outside the regime: Angola, Egypt, Israel, Myanmar, North Korea, Syria, and Somalia. (Israel and Myanmar have signed the treaty but have not yet ratified it.) Although hold-out states suspected of having chemical weapons, such as North Korea and Syria, elicit the greatest level of concern, the need for universal adherence extends even to small countries lacking an active chemical warfare capability, such as Angola or Somalia. The reason is that such states could provide trans-shipment points for the smuggling of CW precursors, or safe havens where terrorists could produce chemical weapons—at least, this is the concern in countries that possess a rudimentary industrial infrastructure.

Universal adherence to the CWC and the adoption of comprehensive imple- menting legislation by all member states would facilitate more effective global action against chemical terrorism. According to one analysis, ‘‘Universal adherence would strengthen the norm against chemical weapons by demonstrating that the principle is accepted in many different political, cultural, religious, economic, and legal set- tings.’’34 It seems likely, however, that hold-out states in the Middle East will join the CWC only in the context of a regional security arrangement or a comprehensive peace settlement.

UN Security Council Resolution 1540

Complementing the CWC is United Nations Security Council Resolution (UNSCR) 1540 of April 28, 2004, which legally obligates all UN member states to take measures at the national level to prevent non-state actors from acquiring nuclear, biological, or chemical weapons or their means of delivery. Although the UNSCR 1540 does not alter the obligations of CWC member states with respect to national implementation and preventing the proliferation of chemical weapons, it extends these obligations to all non-parties to the treaty. In addition, whereas the CWC focuses primarily on militarily significant types and quantities of chemical agents, UNSCR 1540 addresses all toxic chemicals that might be acquired by terrorists, including TICs.

Although a 1540 Committee reporting to the UN Security Council is responsible for monitoring and reporting on states’ implementation of the resolution, not all states have submitted reports and many of those that are available lack substantive detail. Another weakness of UNSCR 1540 is that it provides little guidance about the specific national measures that states must adopt to fulfill their obligations. Whereas militarily significant quantities of chemical weapons are measured in hun- dreds to thousands of metric tons, much smaller volumes of toxic agents—from grams to kilograms—could be used for terrorist attacks against unprotected

114 J. B. Tucker

civilians.35 Under some circumstances, terrorists could also make effective use of moderately toxic industrial chemicals, which are not considered to pose a military threat. For these reasons, national legislatures should work with their domestic chemical industries to develop suitable legislation for implementing the operative paragraphs of UNSCR 1540 with respect to the production, storage, and transport of TICs. In the United States, for example, the Department of Homeland Security has developed ‘‘chemical facility anti-terrorism standards’’ for physical and person- nel security at more than 6,000 high-risk chemical plants across the country.36

The Role of the OPCW

Because some CWC member-states object to allocating resources and staff from the Technical Secretariat to pursue a robust counterterrorism mission, the OPCW seeks an institutional role in this area that is both useful and politically sustainable. In November 2001, in the immediate aftermath of the September 11, 2001 terrorist attacks against the United States, the OPCW Technical Secretariat prepared a back- ground paper titled ‘‘The OPCW and the Global Struggle Against Terrorism.’’37

This paper argued that as an international center of excellence in matters pertaining to chemical weapons disarmament, nonproliferation, and chemical plant security, the OPCW provides a venue for international cooperation in combating the misuse of chemistry for hostile purposes, including terrorism.

In response to the background paper, the OPCW Executive Council issued a decision in December 2001 stating that the organization’s contribution to global anti-terrorism efforts should focus on the following areas: promoting universal adherence to the CWC, ensuring that all member states carry out the provisions of Articles VI and VII on national implementation, and increasing the ability of the organization to provide assistance and protection under Article X in the event of a chemical terrorist attack.38 The Executive Council also established an Open-Ended Working Group on Terrorism to examine additional ways that the OPCW could contribute to global anti-terrorism efforts. Although this working group has provided a forum for an exchange of information and experience among member states, it has yet to generate any concrete initiatives.

On September 8, 2006, UN General Assembly Resolution 60=288 established the Global Counter-Terrorism Strategy, which encouraged the International Atomic Energy Agency (IAEA) and the OPCW ‘‘to continue their efforts, within their respect- ive mandates, in helping States to build capacity to prevent terrorists from accessing nuclear, chemical or radiological materials, to ensure security at related facilities and to respond effectively in the event of an attack using such materials.’’39 Subsequently, in April 2008, the Second Review Conference of the CWC ‘‘noted with concern that, along with the continued threat of the possible use of chemical weapons by States under any circumstances, the international community also faces the increased danger of the use of chemical weapons by terrorists or other non-state actors.’’40

Although the OPCW is not a counterterrorism organization and can operate only in its area of technical competence, there is a clear expectation on the part of the international community that it will contribute to global efforts to prevent chemical terrorism and mitigate its consequences.41 To this end, OPCW can provide support for capacity-building so that national governments are more capable of pre- venting, detecting, and responding to the theft, sabotage, unauthorized access, or illegal transfer of toxic chemicals. The organization has also worked to facilitate

The Role of the Chemical Weapons Convention 115

the exchange of ideas, experience, and best practices for increasing the safety and security of chemical plants and improving the preparedness of member states to respond to chemical attacks. Such efforts involve forging partnerships with a variety of stakeholders, including governments, professional societies, chemical trade asso- ciations, and international organizations such as the International Union of Pure and Applied Chemistry (IUPAC), the World Health Organization (WHO), the International Criminal Police Organization (INTERPOL), and the World Customs Organization (WCO).

Over the past decade, the OPCW has organized a series of expert workshops, seminars, training programs, and conferences on various aspects of chemical security and protective assistance, including strategies for preventing the terrorist exploi- tation of TICs.42 On November 22–23, 2010, for example, the OPCW Technical Secretariat and the Polish government cosponsored a table-top exercise in Warsaw involving a scenario in which terrorists set off an explosion at a chemical plant, rupturing a storage tank and releasing 20 metric tons of chlorine. This exercise was designed to test the adequacy of national response plans and decision-making processes, the exchange of information among government agencies, and the pro- vision of assistance by relevant national and international organizations. Parti- cipants included national authorities and government officials, agencies involved in emergency response (e.g., police, fire-fighters, emergency medical units, and mili- tary personnel), representatives of chemical industry, and other international organi- zations capable of providing advice and assistance.43

The Warsaw table-top exercise called attention to the fact that an incident of chemical terrorism would differ from a biological or a radiological attack in that the time available to save lives would be much shorter, ranging from minutes to hours. For this reason, local response capabilities would be essential, backed up with whatever outside support could be provided on short notice. A second finding was that although hazardous-materials (hazmat) personnel and equipment could be applied to an incident of chemical terrorism, a deliberate attack would entail additional complications, such as the threat to first responders from armed terror- ists. Third, the exercise highlighted the operational tensions among various actors, such as the conflict between saving victims’ lives and collecting the forensic evidence needed to support attribution and prosecution of the perpetrators.44

At the same time that the OPCW has sought to adapt to a changing security environment by expanding its role in global anti-terrorism efforts, CWC member states have imposed clear political limits on the organization’s activities in this field. According to a French national paper presented to the Executive Council in July 2009, ‘‘The OPCW can contribute to enhancing the security of chemical facilities by developing its role as a platform (venue) of support for global cooperation in reducing the chemical threat by promoting awareness of chemical security best prac- tices and fostering cooperation between chemical professionals . . . . At the same time, the OPCW shall not aim at developing its own independent capacity or regulatory and monitoring responsibilities or guidance or advice in the area of chemical safety and security. The OPCW will not include chemical safety and security issues in inspection and verification activities.’’45

One way for the OPCW to square this circle would be to provide an institutional framework within which interested CWC member states can negotiate ‘‘side agree- ments’’ that codify best practices for the physical security of chemical manufacturing and transportation systems, with particular emphasis on toxic industrial chemicals.

116 J. B. Tucker

Such agreements would set out chemical safety and security protocols, including a mechanism for periodic review by the participating countries. Although the negoti- ation of side agreements would not require the participation or approval of all CWC member states or the official imprimatur of the OPCW, it could take place under the auspices of the organization with the active participation of the international chemi- cal industry. A possible model for such an agreement is the Convention on the Physi- cal Protection of Nuclear Material, which was negotiated at the IAEA by a group of member states of the Nuclear Non-Proliferation Treaty and adopted on October 26, 1979.

Conclusions

Clear indications of interest by terrorist groups such as Al-Qaeda in acquiring and using chemical weapons have reinforced the importance of international cooperation in combating this emerging threat. Although the CWC is not a counterterrorism treaty, several of its provisions can help prevent chemical terrorism by making it harder for non-state actors to acquire the materials, equipment, and know-how needed to produce improvised chemical devices, and by providing protective assis- tance to member states in the event of an attack. In particular, passage of compre- hensive CWC implementing legislation by all member states would improve the effectiveness of legal action against terrorists, eliminate ‘‘safe harbors,’’ and ensure that any involvement with chemical weapons is effectively prosecuted. At present, however, the serious gaps and shortcomings in national implementation on the part of many CWC member states must be remedied if the treaty is to achieve its full potential for countering the threat of chemical terrorism.

Notes

1. Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction, Report to the President of the United States, ‘‘Chapter 3: Case Study: Al Qa’ida in Afghanistan’’ (Washington, DC: U.S. Government Printing Office, March 31, 2005), 270–271.

2. Bruce Hoffman, ‘‘Terrorism and WMD: Some preliminary hypotheses,’’ Nonproli- feration Review 4, no. 3 (1997): 48.

3. Nasir bin Hamd al-Fahd, ‘‘A Treatise on the Legal Status of Using Weapons of Mass Destruction against Infidels.,’’ http://www.jihadspin.com/Nuclear Fatwa.pdf

4. Lewis A. Dunn, Can al Qaeda Be Deterred from Using Nuclear Weapons?, Center for the Study of Weapons of Mass Destruction Occasional Paper 3 (Washington, DC: National Defense University Press, July 2005), 10.

5. Jonathan B. Tucker, ‘‘The Future of Chemical Weapons,’’ The New Atlantis, 26, Fall=Winter (2010): 3.

6. The Chlorine Institute, ‘‘Chlorine Manufacture.’’ http://www.chlorineinstitute.org 7. David E. Kaplan, ‘‘Aum Shinrikyo (1995),’’ in Jonathan B. Tucker, (ed.), Toxic

Terror: Assessing Terrorist Use of Chemical and Biological Weapons (Cambridge, MA: MIT Press, 2000), 207–226.

8. Rolf Mowatt-Larssen, Al Qaeda Weapons of Mass Destruction Threat: Hype or Reality? (Cambridge, MA: Belfer Center for Science and International Affairs, Harvard Kennedy School, January 2010), 13, 23.

9. Ibid., 6. 10. Ibid., 22, 23, 25. 11. Ron Suskind, The One Percent Doctrine (New York: Simon & Shuster, 2006), 277. 12. George Tenet with Bill Harlow, At the Center of the Storm: My Years at the CIA

(New York: HarperCollins, 2007), 274.

The Role of the Chemical Weapons Convention 117

13. Fred Burton, Strategic Forecasting, Inc., The Chemical Threat to Subways: Dispelling the Clouds, June 22, 2006. http://www.stratfor.com/chemical_threat_subways_dispelling_ clouds.

14. Fox News, ‘‘Sarin, Mustard Gas Discovered Separately in Iraq,’’ May 17, 2004, http://www.foxnews.com/story/0,2933,120137,00.html

15. Damien Cave and Ahmad Fadam, ‘‘Iraq Insurgents Employ Chlorine in Bomb Attacks,’’ New York Times, February 22, 2007. http://www.nytimes.com/2007/02/22/ world/middleeast/22iraq.html

16. Rod Nordland, ‘‘Gas Sickened Girls in Afghan Schools,’’ New York Times, August 31, 2010. http://www.nytimes.com/2010/09/01/world/asia/01gasattack.html

17. U.S. Congress, Senate, Committee on Governmental Affairs, Permanent Subcommit- tee on Investigations (Minority Staff), Staff Statement, Hearings on Global Proliferation of Weapons of Mass Destruction: A Case Study on the Aum Shinrikyo, October 31, 1995, ‘‘Part IV. The Operation of the Aum.’’ http://www.fas.org/irp/congress/1995_rpt/aum/index. html

18. Samuel Logan, ‘‘DEA Uncovers Drug-Terror Nexus,’’ ISN Security Watch (Zurich: International Relations and Security Network, Swiss Federal Institute of Technology Zurich), January 21, 2010. http://www.isn.ethz.ch/isn/Current-Affairs/Security-Watch/Detail/ ?id=111599&lng=en.

19. OPCW Conference of the States Parties, Fifteenth Session, ‘‘Report of the OPCW on the Implementation of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction in 2009,’’ C-15=4, November 30, 2010, 8.

20. Daniel Horner, ‘‘CWC members debate inspection distribution,’’ Arms Control Today 41, no. 1 (2011): 50.

21. OPCW Conference of the States Parties, Third Session, ‘‘Note by the Director- General: Compliance with Article VII: Legislation, Cooperation and Legal Assistance,’’ C-III=DG.1=Rev. 1, November 17, 1998.

22. Kaplan, ‘‘Aum Shinrikyo (1995)’’ (see note 7 above), 223–224. 23. Lisa Tabassi and Scott Spence, ‘‘Improving CWC Implementation: The OPCW

Action Plan,’’ in Trevor Findlay, (ed.), Verification Yearbook 2004 (London: VERTIC, 2004), 45–64.

24. OPCW Conference of the States Parties, Fifteenth Session, ‘‘Opening Statement by the Director-General to the Conference of the States Parties at its Fifteenth Session,’’ C-15= DG.14, November 29, 2010, 11.

25. Kaplan, ‘‘Aum Shinrikyo (1995)’’ (see note 7 above), 215. 26. Jonathan B. Tucker, Trafficking Networks for Chemical Weapons Precursors: Lessons

from the Iran-Iraq War of the 1980s, Occasional Paper No. 13 (Monterey, CA: James Martin Center for Nonproliferation Studies, November 2008).

27. Stephen Lustig, ‘‘International Cooperation in Protection against Terrorism,’’ in Rodrigo Yepes-Enrı́quez and Lisa Tabassi, (eds.), Treaty Enforcement and International Cooperation in Criminal Matter (The Hague, The Netherlands: T.M.C. Asser Press for the Organization for the Prohibition of Chemical Weapons, 2002), 406–407.

28. Federal Bureau of Investigation (FBI), ‘‘Chemical Industry Outreach.’’ https:== chemicalindustryoutreach.org

29. Andreas Persbo and Angela Woodward, ‘‘National Measures to Implement WMD Treaties and Norms: The Need for International Standards and Technical Assistance,’’ WMDC Studies No. 32 (Stockholm, Sweden: Weapons of Mass Destruction Commission, August 2005). http://www.blixassociates.com/final-report/the-wmdc-studies/.

30. OPCW Executive Council, ‘‘Report by the Director-General: Status of Implemen- tation of Article X of the Chemical Weapons Convention as at 21 December 2009,’’ EC-59=DG.12, 9 February 2010, 10.

31. Michelle Wood, Marleen Laloup, Nele Samyn, Maria del Mar Ramirez Fernandez, Ernst A. de Bruijn, Robert A. A. Maes, and Gert De Boeck, ‘‘Recent applications of liquid chromatography-mass spectrometry in forensic science,’’ Journal of Chromatography A, 1130, no. 1 (2006): 3–15.

32. Mona Yana, ‘‘Mock chemical weapons attack staged on Rades pitch.’’ Magharebia. com (accessed October 19, 2010.).

118 J. B. Tucker

33. OPCW, ‘‘OPCW Director-General has high-level meetings and closes ASSISTEX 3 exercise in Tunisia,’’ OPCW News 33=2010, October 18, 2010.

34. Daniel Feakes, ‘‘Getting down to the hard cases: Prospects for CWC universality,’’ Arms Control Today 38, no. 2 (2008): 12.

35. Ron G. Manley, ‘‘Restricting Non-State Actors’ Access to Chemical Weapons and Related Materials: Implications for UNSCR 1540,’’ in Olivia Bosch and Peter van Ham, (eds.), Global Non-Proliferation and Counter-Terrorism: The Impact of UNSCR 1540 (Washington, DC: Brookings Institution Press, 2007), 79.

36. Law Enforcement and Public Safety Network, ‘‘Chemical Facility Anti-Terrorism Standards: Overview for Law Enforcement.’’ http://leaps.tv/pgm.php?program_code= 201102161300

37. OPCW, ‘‘Note by the Director-General: The OPCW and the Global Struggle against Terrorism,’’ EC-XXVII=DG.3, November 9, 2001. http://www.opcw.org/about-chemical- weapons/chemical-terrorism/possible-responses-to-global-terrorist-threats

38. OPCW Executive Council, Decision Document, EC-XXVII=DEC.5, December 7, 2001.

39. United Nations General Assembly, Resolution 60=288, ‘‘Global Counter-Terrorism Strategy,’’ September 8, 2006.

40. OPCW Conference of the States Parties, ‘‘Report of the Second Special Session of the Conference of the States Parties to Review the Operation of the Chemical Weapons Conven- tion (Second Review Conference), 7–18 April 2008,’’ RC-2=4, April 18, 2008, 7.

41. OPCW, Working Group for the Preparation of the Second Review Conference, ‘‘Note by the Technical Secretariat: Review of the Operation of the Chemical Weapons Convention since the First Review Conference,’’ WGRC 2=9=1, 27 November 2007, 8.

42. OPCW Executive Council, ‘‘Note by the Director-General: Status of the OPCW’s Contribution to Global Anti-Terrorism Efforts,’’ EC-64=DG.8, April 27, 2011.

43. OPCW Technical Secretariat, ‘‘Note by the Technical Secretariat: Table-Top Exercise on the Preparedness of States Parties to Prevent Terrorist Attacks involving Chemicals, Poland, 13 and 14 September 2010,’’ Office of Special Projects, S=835=2010, April 19, 2010, 1–3.

44. OPCW Technical Secretariat, Office of Special Projects, ‘‘Note by the Technical Secretariat: Report on the Table-Top Exercise on the Preparedness of States Parties to Prevent Terrorist Attacks Involving Chemicals, Warsaw, Poland, 22 and 23 November 2010,’’ S=890= 2011, January 20, 2011, 3–4.

45. France, ‘‘The Open-Ended Working Group on Terrorism – A Platform for Promot- ing OPCW Active Engagement in the Global Anti-Terrorism Efforts,’’ OPCW Executive Council, Fifty-seventh session, EC-57=NAT.6, July 8, 2009, 6.

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