When is a Chemical Weapon Not a Chemical Weapon?
| Author | Robin Sellers |
| DOI | 10.1177/0022018316685476 |
| Published date | 01 February 2017 |
| Date | 01 February 2017 |
| Subject Matter | Comments |
The Journal of Criminal Law
2017, Vol. 81(1) 20–25
When is a Chemical Weapon
ª The Author(s) 2017
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DOI: 10.1177/0022018316685476
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Robin Sellers
The City Law School City, University of London, London, UK
Abstract
This article seeks to highlight the difficulties encountered in the interpretation of the prohi-
bition on the use of chemical weapons in the Chemical Weapons Act 1996. In particular, the
application of ‘the act’ against individuals in the domestic criminal courts as opposed to larger
entities and nation states. An example is given from the first instance decision in the case of
Regina v Mohammed Amer Ali heard at the Central Criminal Court between 7 and 14 July 2015.
Keywords
Chemical weapons definition - peaceful purpose
Background
The Chemical Weapons Act 1996 received Royal Assent on 3 April 1996 and was a response to the
obligations imposed on the United Kingdom as a result of being a signatory to the Convention on the
Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their
Destruction (CWC). Its latest manifestation was in 2005 but the UK has been a signatory since 13
January 1993. That Convention in Article VII ‘National Implementation Measures’ established that all
signatory state parties should ‘adopt necessary measures to implement their obligations under the
Convention . . . prohibiting natural and legal persons from undertaking any activity prohibited . . . under
the convention’.
The Source of the Problem
The Convention defined ‘Chemical weapons’ as ‘Toxic chemicals and their pre-cursors, except where
intended for purposes not prohibited under this Convention, as long as the types and quantities are
consistent with such purposes.’1 ‘Toxic chemical’ and ‘precursor’ are further defined in the same Article
and are outside the scope of this work.
1. Art. II(1)(a).
Corresponding author:
Robin Sellers, Northampton Square, London EC1V 0HB, UK.
E-mail: robin.sellers@city.ac.uk
Sellers
21
This definition of chemical weapons was arrived at due to the ‘dual purpose’ of some substances
which can be used either as a chemical weapon or for other innocuous reasons, e.g. fentanyl, an opioid,
commonly used as an anaesthetic. This was recognised from an early stage as being an unavoidable
element of the Convention to futureproof its applicability.2 The element of the definition is referred to as
the ‘general purpose criterion’ and is seen as essential to ensure that past, present and future chemical
weapons are prohibited.
Article II paragraph 9 defines ‘Purposes Not Prohibited Under This Convention’ as:
(a) Industrial, agricultural, research, medical, pharmaceutical or other peaceful purposes.
‘Other peaceful purposes’ is not defined in the Convention. Krutzsch et al. point to the case of Bond v
USA for assistance.3 Bond was a trained biochemist who stole a toxic chemical from her employer and
ordered another from a photographic supplier over the internet. She had the intention to poison an
individual. She argued, unsuccessfully, that ‘peaceful purposes’ meant ‘not warlike’ and therefore the
co-existing identical US legislation did not apply to her.
The UK draughtsman gave effect to the obligation through s. 2 of the Chemical Weapons Act 1996 by
saying:
2(1) No person shall-
(a) . . .
(b) . . .
(c) have a chemical weapon in his possession;
Section 2(3) states:
For the purposes of subsection 1(c) an object is not a chemical weapon if the person does the act there
mentioned with the...
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